Did the Vote Pass? What Various Voting Requirements Mean

August 27, 2013

By Curtis G. Kimble.

You and the rest of the board have worked hard to communicate the importance of a renovation project to the members and a special assessment is desperately needed to fund the project.  But, the approval of the members is needed to pass the special assessment.  You know your CC&Rs require a majority of members to vote yes to approve a special assessment.  But, you’re not sure if it’s a majority of all of the members, or a majority of those that actually vote, or of those that show up at the meeting.

The language in CC&Rs and bylaws specifying how many votes are needed to pass a proposed action by the members, such as a special assessment or amendment to the CC&Rs, can be difficult for even experienced homeowner association professionals to understand.  CC&Rs usually require that at least one of the following three thresholds be met for a vote to pass: (1) a percentage of the total outstanding voting rights of the association, (2) a percentage of those votes that are actually cast at a meeting, or (3) a percentage of those members present at a meeting.  Here are examples of what those provisions may look like in CC&Rs.  See if you know what they mean.

1.  “This declaration may be amended if members holding at least two-thirds of the total votes of the Association approve the amendment.”

This one should be easy.  But, it can be easy to forget that this is requiring two-thirds of the total votes of the association, and not just two-thirds of the members that show up at a meeting.  So, if an HOA has 100 members with one vote each and a meeting is held to vote on a proposed amendment to the CC&Rs where 50 members attend, how many votes are needed for the amendment to pass?  If you said 67, you’re right (if you said “more than they’ll be able to get at that meeting, you’re also right).

How about the same example as above, except in a condominium association where half the members have a .75% undivided ownership interest in the common area, and the other half have 1.25%?  How many members need to vote yes for the amendment to pass?  If you said it doesn’t matter how many members vote yes, what matters is whether two-thirds of the total voting rights of the association vote yes, then you’re correct.

In a condominium, the law requires voting rights of a member to be directly tied to the undivided ownership interest of the member (Utah Code Section 57-8-24).  This means that if a member has a .75% undivided interest in the common area, that member has a .75% vote in any matter put before the association membership.  In this situation, the association needs the yes votes to add up to 66.66…% of the total voting power of the association for the vote to pass.

2.  “A special assessment shall require the approval of a majority of the members voting in person or by proxy.”

Taking the example above where the HOA has 100 members with one vote each and a meeting is held to vote on a proposed special assessment where 50 members are represented (39 in person and 11 by proxy), how many votes are needed for the special assessment to pass?  If you said “Well Curtis, we can’t tell until you tell us how many members actually voted,” then you’d be correct.  This provision requires approval from a majority of the members that actually cast a vote.  If 45 votes are actually cast, how many votes are needed to pass the assessment?  23 (more than half of the 45 votes cast).

What about this same situation but in the condominium association mentioned above where the members have percentage interests that aren’t equal?  Do you need a majority of the percentage-votes that are cast, or a majority of the actual members that cast a vote?  You need a majority of the percentage-votes that are cast, regardless of how many actual people (members) vote.  Remember, by law, membership voting rights shall be available to the unit owners according to their respective percentage interests (regardless of what the CC&Rs say).

3.  “A special assessment shall require the approval of a majority of the members represented in person or by proxy.”   

Did you spot the difference between this and number 2?  This one requires approval of a majority of the members represented at the meeting, rather than a majority of just those that actually cast a vote.  So, in the example above with 100 members where 50 members are represented at a meeting (39 in person and 11 by proxy) and 45 votes are actually cast, how many yes votes are needed?  If you said 26, you’re correct (a majority, or more than half, of 50).

If the voting language in your CC&Rs or bylaws isn’t clear, be sure the board contacts the association attorney for clarification before the association relies on a misunderstood requirement.

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Posted by Curtis G. Kimble

HOA Neighborhood Watch Liability After Trayvon Martin

August 6, 2013

By Curtis G. Kimble.

Since the Trayvon Martin death in Florida, neighborhood watch groups in HOAs have become a hot button issue.  The neighborhood watch group that George Zimmerman, the man that was carrying a gun and shot Trayvon Martin in self defense, was a part of was overseen by the homeowners association.  That HOA was sued by Trayvon’s family for wrongful death and other claims and ended up settling for an undisclosed amount of money that is thought to be over $1,000,000.

When something like the Trayvon Martin death occurs, claims are filed against anybody who could possibly have any culpability, which will include the HOA when the issue even remotely involves or implicates the HOA.  So, what’s an HOA to do?   Should your condominium or HOA establish, or continue, a neighborhood watch?  What are the risks and how do you mitigate them?  HOA insurance specialist Béat Koszinowski answers these questions in his recent article here: Neighborhood Watch Groups in Your HOA.

The single biggest factor as to whether a watch group will create more issues and liability for an HOA isn’t whether the neighborhood watch volunteer carries a gun or other weapon, because if it gets to the point where a weapon could be used, the HOA will likely be sued either way.  For instance, if the volunteer ends up being beaten to death and was not allowed to carry a weapon by the HOA, the HOA will likely be sued by the family of the volunteer (whether rightfully or not).  Instead, it’s when volunteers go beyond simply reporting suspicious activity and instead take law enforcement into their own hands that the issues and liability open up like floodgates.  As Béat points out, “watch groups can do more harm than good when group volunteers go beyond contacting the local police department and act as the HOA’s own law enforcement.  Watch groups that engage perpetrators, use physical force or carry weapons put your HOA at risk for a lawsuit.”

Béat also points out, and I agree, that, ideally, to reduce liability, a neighborhood watch program should have no official connection to the HOA and the board should have no involvement in the creation or regulation of the watch group.  But if your HOA decides to start a watch group, it’s imperative that the HOA:

  1. establish specific written guidelines and policy for the group stating what the volunteer should and should not do, what the volunteer’s duties are exactly, and a procedure when suspicious activity is encountered,
  2. contact the local police department to receive watch group training, and
  3. check that its insurance covers the watch group.

While neighborhood watch groups can serve an important and effective purpose, they can also create more issues and liability.  An HOA board should contact its association insurance professional and attorney and follow certain risk mitigation steps if it operates, or plans to institute, a neighborhood watch group.

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Posted by Curtis G. Kimble

Ever Wanted to Read a Court’s Perspective on HOA Drama?

June 13, 2013

By Curtis G. Kimble.

Are you interested in seeing how HOA conflicts unfold and are resolved by the Utah Court of Appeals and Supreme Court?  Whether you like the stories of the people and the interesting circumstances, or you like to know the law handed down from Utah’s highest courts regarding HOAs, RKW’s Utah HOA Law app lets you read the HOA case law decided over the years in Utah on your tablet or phone.  The latest update to the app contains select Utah HOA case law, and even includes concise summaries by RKW of certain cases.

One such case from 2002 showed how an agreement between a unit owner and the association to decrease monthly assessments as to only that owner was unenforceable:

Every unit owner in Canyon Road Towers is obligated to pay his or her proportionate share of the common expenses as a monthly assessment. The proportionate share of common expenses is directly tied to the undivided ownership interest that an owner has in the common areas, as required by Utah law for condominiums.  In any condominium project, each unit’s undivided ownership interest is stated in the declaration (CC&Rs).   In negotiating the purchase of a unit, the Johannessens learned that the unit the wanted had a 1.282 percent ownership interest in the common areas, which was higher than the interest assigned to other units (because it was the penthouse unit and had unique features and so forth).  The higher undivided interest of course meant a larger monthly assessment.

The Johannessens got the management committee (the board in a condo) to agree to decrease their assessment, but they did so without a vote of the owners and an amendment to the CC&Rs.  The Johannessens enjoyed the decreased assessment amount for a few years, until something must have happened that woke the management committee up and they began assessing the Johannessens based on their undivided interest.  Of course, the Johannessens sued.

Utah law requires a vote of the unit owners before the ownership interest of any unit owner can be changed.  “A reduction in the monthly assessment paid by any unit owner alters the ownership interest of that unit, and in turn, alters the ownership interest and assessment fees of all other units in the complex.  The facts are undisputed that the Association did not obtain the consent of all the unit owners before it reduced the Johannessens’ monthly assessment,” the court stated.  Thus, the association violated the law when it decreased the assessment for the Johannessens.

Granted, it’s not Harry Potter or Fifty Shades of Grey, and it’s not everyone’s cup of tea, but if you enjoy a court’s perspective on covenants, conflicts, parking, procedure, voting, assessments, and other HOA issues, our app has you covered.

In the case above, the court noted that the association did not obtain the consent of all unit owners because that’s what the law at that time stated.  Today, the Condo Act states that approval of 2/3rds of the unit owners is required, rather than all owners.  This is an example of the fact that a court’s ruling on an issue is often limited to the specific facts of that case and trying to apply the court’s ruling to other facts and circumstances should only be done with the advice of an attorney.  I know it sounds self serving, but really it’s that a little knowledge of the law can be more dangerous than no knowledge if used incorrectly.

One new law, or change to the law, rather, that I haven’t mentioned before is in the statute regarding towing.  Prior to May 14, an HOA with “multifamily dwellings of more than eight units” didn’t have to have signs where parking was subject to towing if parking in that location was prohibited by CC&Rs (or other contract).  That law was changed this year and that exception was deleted.

Now, state law requires that a tow truck operator may not tow without the vehicle owner’s knowledge at “multifamily dwellings of more than eight units” without signage that displays both (1) where parking is subject to towing, and (2) the website that provides access to towing database information, or the name and phone number of the tow truck operator, or the name and phone number of the HOA that authorized the vehicle to be towed.  There is an exception.  Such signs aren’t needed when a vehicle is parked in a location that is prohibited by law or “if it is reasonably apparent that the location is not open to parking” (by a red painted curb, or on a lawn or sidewalk, for instance).

The latest update to the app came out just before the new Utah HOA laws went into effect on May 14.  Make sure to download the update if you haven’t already so you have the current version of the laws.  A future update will contain the new laws that were passed that go into effect in 2014 (July 1, 2014).

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Posted by Curtis G. Kimble

An HOA Loan, a Viable Option for Funding an Association Project?

May 7, 2013

By Curtis G. Kimble.

Richards, Kimble and Winn held a brief seminar with Alan Seilhammer, Premier Association Lending, the other night where Alan discussed with many board members and managers the process of obtaining an HOA specific loan.  An HOA loan is not the answer to all of an association’s problems, it isn’t even the best choice in many cases, but it can be the best choice in certain situations.  It’s an important tool in any association’s financial toolbox.  Here’s a brief synopsis of Alan’s PowerPoint and of our discussion:

There are three unalterable truths when it comes to HOA maintenance:

1.  The project will not go away. Picture1

2.  The project will not get cheaper.

3.  Whether by reserves, special assessment or a loan, the money comes from the owners.

Because of these truths, when property condition reports and reserve studies uncover problems which require major capital expenditures, it’s important to deal with them. At the outset of any major maintenance project, the scope of the project must be defined, the options available and priorities must be known and understood (is insurance available, ramifications of not addressing entire project, etc.), legal issues must be known or anticipated, and funding options must be evaluated.  An evaluation of project funding options depends upon the project budget, project schedule, governing documents, legal review, and current cash reserves, among other things.

  • Utilize association’s reserves.
  • Special assessment.
  • Loan.

What Can be Funded?

1. Most anything you can imagine. Funding tools have become rather sophisticated.

a.  Capital maintenance projects are most common.
b.  Construction defects are largely the same but are thought of differently.
c.  Litigation Expenses: Construct defect, unconscionable leases.
d.  Real estate purchases: Units, contiguous property.
e.  Buy out of land leases.
f.  Emergency line of credit.
g.  Operating line of credit for a business need.

2. Operating Expenses are most often not fundable

a.  An association with an operating deficit needs to solve that problem internally
b.  Insurance premiums can be funded within the fiscal year: 10 months
c.  Emergency operating needs depending on the circumstance.

Why You Do Not Want to Wait Until Later:

  • Multi-family construction costs increased nationally 37.4% between 2008 and 2012.
  • Construction costs are forecast to increase 5.5% in 2013.
  • Association investments currently yield less than 1%.
  • Loan Rates are about 4.0% – 4.75% & holding steady.

Picture2

What is Used For Collateral?

1.  Assignment of association’s regular and special assessments. Generally an association’s regular deposits should not be posted as collateral since the association needs access to its liquidity.

2.  There is no lien or mortgage on the common area or property of the association or any unit (unless purchasing real estate as part of the transaction).

General Loan Parameters:

1.  Term. 1 to 15 years.
2.  Points. A fee of .5% to 1% (can often be negotiated away).
3.  Rate. Interest you pay on the loan. Fixed and variable interest rate programs available.
4.  No prepayment penalties for paying before the term ends.  Because of this, there is inherent flexibility allowing the association to payoff the loan when it suits them.  HOA loans are often for a 10 year term, but most are paid off after around 6 years.
5.  Typical Structure. Initially a “non-revolving” line of credit during construction phase of 6 months to 1 year. Converts to a variable or fixed rate term when construction is completed.
6.  Interest rate may be reduced if association maintains its other accounts with the bank.

Loan Parameters to Avoid:

1.  Pre-payment penalties of any kind.
2.  Interest rates that are hard to understand (SWAP rate, etc.).
3.  Yield maintenance fee.
4.  Changed financial statement requirements.
5.  Approval of contractors.
6.  Control of deposit accounts or a requirement that operating accounts are to be held at the bank.
7.  Balloon payments.
8.  Payable on demand.
9.  Loan default if delinquencies are over some number (know all the events of default).
10.  A debt coverage ratio.

There’s no question a reserve fund is the funding option of choice for major maintenance projects.  But when that’s not an option, a special assessment could be inevitable.  Unfortunately, special assessments are fraught with risks and are fundamentally unfair because only the owners at a specific date have to pay for improvements that benefited past and future owners.  A bank loan is definitely a viable option for funding a project.  While evaluating your possible maintenance project funding sources, make sure you understand the association’s options, including the possibility of a bank loan.

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Posted by Curtis G. Kimble

8 Points of HOA Governance 101

April 24, 2013

By Curtis G. Kimble.

HOA governance isn’t simple or easy and, unfortunately, board members are just volunteers doing their best with too little time and too little money.  I think that’s why even basic principles of HOA governance are often misunderstood by board members (and managers too).  Here is some clarification of 8 frequently misunderstood issues:

1.  Officers and directors are not the same thing.  One of the most fundamental concepts of corporate governance is that directors and officers have entirely separate functions and positions.  Directors are the representatives of the members, elected by the members.  The primary, if not the sole, function of a director is to vote on the decisions before the board.  The directors make up the board, which has the authority to act for the association.

Officers are not (normally) elected by the members, they are elected or appointed by the board.  Usually, the officers are also directors, although there’s no law requiring that they be (but a lot of bylaws require it).  Officers only have the authority or power given to them specifically and expressly, by the bylaws or by the board.  Removing an officer is generally easy, the board is usually authorized to remove an officer, with or without cause.  But if a person is both an officer and a director, removing them as an officer doesn’t remove them as a director.  Removing a director may generally only be done with a vote of the members.

2.  Quorum.  What is a quorum?  Is it important?  A quorum is the minimum number of members that have to be represented at a member meeting in order to have the meeting (or the minimum number of board members that have to be present at a board meeting to have a board meeting).  That magic number will be stated in your bylaws or CC&Rs.  It may be an unreasonably high number (like 50% to 75% of all owners) or it may be a realistic number, but either way it’s required.  If it’s unreasonably high, change it, amend the bylaws, but don’t ignore it.  One of the first things to occur at any meeting should be the determination of a quorum.

3.  The documents that apply.  If your association has CC&Rs (a declaration), bylaws and articles of incorporation, do those documents have to be followed?  If so, how closely do they need to be followed?  The answers are absolutely and to the word.  I’m sure it will come as a surprise to the conscientious readers of this blog, but some boards . . .  how shall I put this . . . don’t appreciate the weight that should be given to what the governing documents say.  They tend to think you are able to pick and choose what you adhere to, or that if they simply aren’t aware of what’s in the documents, then there’s no need to comply with them.  Virtually nothing that is contained in governing documents is optional.  They must be adhered to strictly and literally.

4.  The laws that apply.  There are basically two types of HOAs in Utah – condominium HOAs (or condominium associations) and non-condo HOAs (also called PUDs or community associations).  It’s very important that you know which one you are in (consult your attorney if you don’t).

Condominiums:  The Condominium Ownership Act applies to all condominiums in Utah.

Noncondo HOAs (PUDs or community associations):  The Community Association Act applies to residential non-condo HOAs in Utah (and to mixed-use commercial/residential non-condo projects as of May 14, 2013).

Both:  The Utah Revised Nonprofit Corporation Act also applies to all associations that are incorporated as nonprofit corporations, as most are.

5.  Hierarchy of laws and documents.  If your CC&Rs and bylaws contradict each other, they aren’t simply ignored or tossed out as invalid.  There is a specific heirarchy that generally applies when documents or the law contradict each other.  When a lower document contradicts a higher document, the provision in the higher document is the valid and effective provision and the one in the lower document is ignored (until the documents are amended, which is hopefully promptly after the contradiction is found), unless the higher document is a law that specifically defers to a lower document.

In a condominium, the law states that the following order prevails:

(a) the Condo Act,
(b) the Nonprofit Corporation Act,
(c) articles of incorporation,
(d) declaration (CC&Rs),
(e) bylaws,
(f) rules.

In a non-condo HOA, the order is not set by statute or case law, but the following order should prevail:

(a) the Community Association Act,
(b) the Nonprofit Corporation Act,
(c) declaration (CC&Rs),
(d) articles of incorporation,
(e) bylaws,
(f) rules

6.  Voting Thresholds.  Too often, the subtle distinction between different voting approval thresholds are ignored.  For instance, is there a difference between these two requirements:   “a special assessment shall require the approval of a majority of the members voting in person or by proxy”  and “a special assessment shall require the approval of a majority of the members represented at a meeting in person or by proxy”?

The difference is that the first one requires approval of a majority of those members that actually cast a vote.  The second requires the approval of a majority of the members that show up at the meeting or who are represented by proxy.  So, if 90 members show up to a meeting personally, 10 have given proxies, a vote for a special assessment is held and 94 votes are cast, the number of votes needed for approval under the first requirement above is 48 (a majority of 94).  The number of votes needed for approval under the second requirement is 51 (a majority of 100).

Also remember that, in a condominium, the law requires that voting rights of each owner be directly tied to each owner’s undivided interest in the common area .  This means that if a member has a .837 percent undivided interest in the common area, that member has a .837 vote in any matter put before the association membership (elections, etc.).

7.  A board meeting is not an association meeting or member meeting.  Board meetings (usually held monthly or quarterly) are just that, meetings of the board.  While it is recommended that board meetings be open to the members and the members be allowed to speak during a specified comment period, they are not meetings of the association or member meetings. Typically, the only association meeting or member meeting is the annual meeting held once a year.

8.  HOA Registry.  Finally, remember that the law requires each association to update their information with the Utah HOA Registry within 90 days of any change in that information (e.g., after a board election where a new board member was elected, or after changing managers).  It wasn’t just a one-time requirement and it’s  not an annual renewal.  It must be updated after any change and all information required by the law for condos and the law for non-condos must be included.

This may be new information for some, but hopefully, it just serves as a helpful refresher for others.  In many HOA issues, the devil is in the details and attention to those details will help ensure proper and lawful operation and governance of your association.

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Posted by Curtis G. Kimble

It’s Spring, Time to Ward Against Water Issues

April 1, 2013

By Curtis G. Kimble.

It may be April Fools Day, but it’s no joke that every year around this time insurance companies see many flood issues and claims from homeowner associations.  What’s worse, flood insurance is expensive and the typical HOA insurance policy does not provide coverage for flood and surface water claims.  So, how do you protect yourself and your community?  An HOA insurance specialist Béat Koszinowski of the Buckner Company shared some loss prevention tips with us that I’m passing along:

1.   Problem:  Irrigation system floods.

  • Broken pipes, leaks and breaks that occur during the first few weeks of operation
  • Malfunctioning or incorrect setting of the system causing overwatering
  • General overwatering of certain areas or watering while the ground is still frozen (this can also cause slip and fall liability claims)
  • Runoff due to changes in landscaping, etc.

Solution:  Check the entire irrigation system thoroughly and inspect all areas where the sprinkler system operates at the start of the season and on a regular basis.  Do not activate the system without checking it and making sure it operates properly. The average amount of this type of claim is between $15,000 and $25,000 and preventing this type of issue is a good investment in your property.

2.   Problem:  Landscaping, gutter and roof water runoff.

  • Settling, sinking, expanding or shifting of the ground or landscaping features
  • Ground cover or other landscaping features that are causing water to accumulate near the home and or penetrate the building envelope via the surface or below the ground.
  • Water runoff near buildings that is not properly channeled away

Solution: Check the entire HOA grounds for problem areas and or hire a skilled contractor to check your landscaping, building envelope and other important areas.  This helps to ensure your property and investment is protected.

Tip:  Board members or homeowners should notify the manager or maintenance crew if they notice areas of concern. Don’t assume they know. It is important to understand that most insurance companies will not pay for damages that cause a claim due to wear and tear, rot, mold, latent defect, rust and corrosion, faulty workmanship, faulty design and inherent vice. Inherent vice means losses caused by a quality in a property that causes it to damage itself or destroy itself.

Hopefully, these tips will help keep this important issue in everyone’s mind at this time of year and will help avoid problems that are worse than any April Fools joke.

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Posted by Curtis G. Kimble

Bills That Passed This Legislative Session and How to Comply

March 26, 2013

By Curtis G. Kimble.

The 2013 Utah General Legislative Session has ended and the bills that passed have been finalized in their enrolled form to await signature by the Governor. Which bills passed and which ones didn’t?

Only three of the six bills I discussed in my last post ended up passing the House and the Senate.  They all affect condo and non-condo HOAs in more or less the same way.

SB 64 Homeowner Association Reserve Account Amendments

As I noted before, this law will give the decision back to the board of whether and how to fund a reserve (as most CC&Rs require, and where the decision makers will be subject to fiduciary duties).  Specifically, the law:

  • Specifies that a reserve analysis must include certain things, such as a list of the maintenance items that will require reserve funds,  their remaining useful life, and their cost to repair or replace; an estimate of the contribution to a reserve fund necessary to meet the cost to repair or replace each component; and a reserve funding plan that recommends how the association may fund the annual contribution.
  • Requires an association to provide a summary each year of the reserve analysis to each owner (not just to those at the annual meeting) and a complete copy of the reserve analysis, including any updates, to an owner upon request.
  • Requires the board to include a reserve fund line item in the annual budget in the amount the board determines based on the reserve analysis and based on what “the board determines is prudent under the circumstances” (there is no requirement that the amount be higher than 1$ or even 0$ – not that I recommend that).  This is important because it is almost inevitable that the association will not agree with the amounts recommended by a professional reserve study.  Almost every association feels that their reserve professional has recommended that they set aside more than they really need.  This law allows flexibility so the board can fund reserves in the amount they deem is prudent with all things considered.   However, if the CC&Rs requires a certain level of reserve funding, the CC&Rs will control; this law does not authorize a board to fund reserves lower than what their governing documents might require.
  • Allows the homeowners to veto the reserve fund contribution if they don’t like it (whether too low or too high) by a 51% vote of the owners at a special meeting called within 45 days of when the annual budget is adopted.

Additionally, the law provides for specific enforcement procedures if the association fails to comply with certain of its provisions.  An owner can sue for a court order compelling the association to comply, for $500 or the owner’s actual damages, whichever is greater, other available remedies, and costs and attorney fees.

HB 101 Homeowners Association Amendments

This revision to the statute requiring all HOAs to register as an HOA with the state of Utah merely restates what it said before in a little different way. There is no change in the law’s requirements or implications.

SB 90 Condominium and Community Association Amendments

  • With this new law, an association cannot charge a fee for review and approval of plans for construction or improvement of a unit or lot that exceeds the actual cost of reviewing and approving the plans.
  • The law clarifies what happens when there’s a loss to a unit that initially doesn’t look like it will exceed the association’s deductible but then the loss ends up costing more than the amount of the deductible.  The law says that if the board determines that a covered loss is likely not to exceed the deductible, and until it becomes apparent the loss exceeds the deductible and a claim is submitted to the association’s insurer, the unit owner’s policy is the primary policy for coverage.  So, the unit owner’s policy is primary, but only until it becomes clear that the damage will cost more to repair than the deductible.
  • For commercial condominium projects ( projects with no residential units), the insurance requirements of Utah Code 57-8-43 no longer apply for insurance policies issued or renewed after July 1, 2013.  For mixed-use projects (projects with both commercial and residential units), a commercial unit, including any fixture, improvement or betterment therein and including appurtenant limited common area, does not have to be insured by the association, unless the CC&Rs require it.
  • The Community Association Act is now applicable to any association with at least one residential lot (not just associations made up entirely of residential lots).  So, it will generally apply to mixed-use (commercial/residential) projects (except the insurance provisions were amended to not be applicable to commercial lots, the same as with condominium projects).

The following changes will not take effect until July 1, 2014:

  • The law will now authorize not only condos, but non-condo HOAs as well to access a unit or lot as necessary for maintenance, repair or replacement of common areas or for making an emergency repair, provided that 24 hours’ notice is given, or reasonable notice is given (or attempted) in an emergency.  The association is liable to repair damage it causes to the common areas or to a lot or unit the association uses to access common areas, and it must repair that damage within a reasonable time, except in developer-controlled community associations (where many of the laws in the Community Association Act don’t apply, thanks to legislators favoring developers much more than homeowners (contact your legislator and let them know favoring developers over homeowners isn’t acceptable!)).
  • The law authorizes a unit or lot owner to remove or alter a wall between two units or lots if the owner owns both units/lots, even if the wall is common area, unless restricted by the CC&Rs (most condo CC&Rs do, in fact, restrict this) and unless it would impair the structural integrity, mechanical systems or support of the building, the common areas, or a unit/lot.  The board may require the owner to submit, at the owner’s expense, an engineer’s or architect’s opinion stating that a proposed change will not impair the structural integrity or mechanical systems of the building or either lot, reduce the support or integrity of common areas, or compromise structural components.  The board may require the owner to pay all of the association’s legal and other expenses related to the proposed alteration, as well.  The removal or alteration of the wall does not change the assessment or voting right attributable to either of the units/lots (unless the CC&Rs say so).
  • The law also contains a procedure for the unlikely event that two or more associations want to consolidate or merge together into one association.

While these bills are not actually law until signed by the Governor, there is little chance that the Governor will veto any of them (I will, of course, let you know if he does).   (UPDATE: Each of these bills were signed by the Governor and are now law.)   The laws take effect May 14, 2013, except the ones mentioned above that don’t take effect until July 1, 2014.

As always, please note that none of the above is legal advice and should not be relied on as statements of the requirements of the law applicable to any particular scenario or circumstance.  The statutes themselves should be referred to for their exact and full contents and an attorney consulted with for application of any relevant law to a particular set of facts.

1 Comment | Governance, Insurance, New Condo Laws, New HOA Laws, New Non-Condo HOA Laws, Reserves | Tagged: | Permalink
Posted by Curtis G. Kimble

Last Week of Legislative Session: What’s in Store?

March 11, 2013

By Curtis G. Kimble.

It’s the last week of the Utah 2013 general legislative session, which is set to end Thursday, March 14, at midnight, and there are a few HOA bills on the path to becoming law.  Here’s a summary and update on where they are in the process:

HB 335 Condominium Owner Rental Amendments

HB 335 would amend the Condo Act to state a condominium project that recorded its initial declaration before May 12, 2009, would not be able to prohibit or restrict a unit owner’s ability to rent to any greater extent than is described in the declaration that was recorded at the time the unit owner purchased the unit owner’s unit, unless the association obtains the unit owner’s written consent.

This bill is in the House Rules Committee where it has been for a few weeks. This bill will not pass this session.

SB 64 1st sub Homeowner Association Reserve Account Amendments

This substituted version of SB 64 is completely different than the original version (see my prior post).  The most important part of this bill, in my opinion, is that now the decision of whether and how to fund a reserve is back where it belongs. If passed, this version of the law will put that decision back to the board (as most CC&Rs require, and where the decision will be subject to the fiduciary obligations of the decision makers).  This bill would also allow the homeowners to veto the reserve fund contribution  if they don’t like it (whether too low or too high) by a 51% vote of the owners at a special meeting.

Additionally, this bill provides for specific enforcement procedures if the association fails to comply with certain of its provisions.  The association will be required to provide a summary each year of the reserve analysis to each owner (not just at the annual meeting) and a complete copy of the reserve analysis to an owner upon request.  The board also has to include a reserve fund line item in the annual budget in the amount the board determines and the homeowners can veto that determination (as discussed above).

If an association fails to comply, an owner can sue for a court order compelling the association to comply, for $500 or the owner’s actual damages, whichever is greater, other available remedies, and costs and attorney fees.

This bill has passed through the Senate, though the House committee, and is in the House for a vote.  My guess is that this bill will pass, depending on the calendar.

SB 90 1st sub Condominium and Community Association Amendments

SB 90 1st sub changes which associations the Community Association Act applies to.  It currently only applies to wholly residential associations (associations where each member is an owner of a residential lot).  This bill makes the Act applicable to any association with at least one residential lot.  So, it will apply to mixed-use (commercial/residential) projects with at least one residential lot.

The bill states that, unless otherwise provided in the CC&Rs, developers essentially have control of the association for eternity (that is, for seven years after all declarants have ceased to offer lots for sale in the ordinary course of business (compare this with the Condo Act where it’s 3 years after recording the CC&Rs for a typical project)), or 60 days after 75% of the lots that may be created are sold, whichever happens first.

This bill contains changes to the reserve analysis law, as well, which are very similar to SB 64 1st sub (minus the veto and enforcement provisions).

The bill enacts some provisions relating to making changes to adjoining units or lots acquired by same owner, and relating to the consolidation or merger of associations (i.e., a procedure for merging, if two associations wanted to merge or consolidate).

Finally, the bill cleans up the insurance provisions in the Condo Act and Community Association Act and exempts commercial condominiums and lots from its requirements.

This bill has passed the Senate and is now on its way to the House.  Whether it can get through the House in time is anybody’s guess, but my bet is that it will.

SB 274 Condominium Foreclosure Amendments

SB 274 would require a bank or lender to pay a unit or lot’s share of certain common expenses from the time the lender starts the foreclosure process (by filing a notice of default) on a unit or lot.   Many banks start the foreclosure process and then wait for months and sometimes years before completing it, even if the homeowner has given up and long since moved out.  Meanwhile, the association still has to carry applicable insurance and carry out maintenance benefiting the unit or lot.  The bank won’t foreclose because they don’t want to have to start paying assessments.  This bill would address the problem to a small degree by requiring the bank to pay the unit or lots share of “landscaping maintenance in the common areas, water and insurance.”

If this bill gets through the banking lobby, I’d be amazed, but it has passed favorably out of committee and is on the Senate calendar for vote.

HB 101 1st sub Homeowners Association Amendments

The statute requiring all HOAs to register as an HOA with the state of Utah is being merely clarified once again with this bill.   There is no change in its requirements or implications.  It passed the Senate and House.

SB 262 Employment and Housing Antidiscrimination Amendments

SB 262 modifies the Utah Fair Housing Act, which is important for HOAs because the Fair Housing Act prohibits an HOA from discriminating against certain “protected classes” of people in its rules, covenants or practices.  If this bill passes, it would prohibit discrimination based on sexual orientation or gender identity.  Specifically, the bill states (the underlined language is new language):  “It is a discriminatory housing practice to do any of the following because of a person’s race, color, religion, sex, national origin, familial status, source of income, [or] disability, sexual orientation, or gender identity: . . . deny or make unavailable [any] a dwelling from any person; (b) discriminate against [any] a person in the terms, conditions, or privileges: (i) of the sale or rental of [any] a dwelling; or (ii) in providing facilities or services in connection with the dwelling; . . ..”

This bill passed out of the Senate committee with a favorable recommendation and is on the reading calendar of the Senate (to be voted on).

I’ll let you know which bills pass this session after it ends.

2 Comments | New Condo Laws, New HOA Laws, New Non-Condo HOA Laws | Tagged: | Permalink
Posted by Curtis G. Kimble

Utah LAC Issues Statement on SB 64 (Reserves)

February 22, 2013

By Curtis G. Kimble.

As many of you may know, the 2013 General Session of the Utah Legislature is in full swing on Capitol Hill.  A few bills enacting or amending HOA laws are in the works and I’ll be summarizing and commenting on those over the next couple of weeks.

As to one such bill, SB 64, CAI’s Utah Legislative Action Committee issued a position statement today coming down quite aggressively against it.  SB 64 amends the reserve funding requirements of Utah Code Sections 57-8-7.5 and 57-8a-211 and, if passed, will require an association to begin funding the reserve fund in the manner and amount determined by the vote of the owners within 90 days after the vote, and to file a certificate of compliance with the Department of Commerce within 30 days of starting to fund a reserve fund.  It also requires that if an association does not file a certificate of compliance within the required 30 days, the association may not levy a special assessment until it files a certificate of compliance.  View SB 64 here.  View the position statement here (I am not a member of ULAC and their position is not necessarily mine, nor mine theirs).

UPDATE March 1: view the substitute bill SB 64 here and a comparison of the changes to the original SB 64 here.

The original requirement of this law requiring the decision of whether to fund a reserve account to be made by a majority of those owners who happen to show up at the annual meeting, is one that I’ve always been opposed to for various reasons, not the least of which is that it unconstitutionally interferes with the obligation contained almost universally in preexisting HOA contracts (CC&Rs) that the board establish a reasonable reserve.  For reasons similar to those contained in the ULAC position statement, I am opposed to SB 64, as well.

If you have an opinion one way or the other on pending legislation, don’t be afraid to voice it to your representatives in the Legislature.  Follow this link to identify who they are and contact them: Utah State District Maps

2 Comments | HOA Finances, New HOA Laws, Reserves | Tagged: , , | Permalink
Posted by Curtis G. Kimble

Can Enforcing the CC&Rs Equally and Consistently Ever be Illegal?

January 30, 2013

By Curtis G. Kimble.

Has your board ever faced a demand for a “reasonable accommodation” by a disabled resident?  Have you ever heard of a “reasonable accommodation”?  What about a request for a modification to a unit or common area to accommodate a disability?  As explained by the following excerpt from our Utah HOA Law app, if certain requirements are met, granting the request for accommodation or modification is not optional, and enforcing a covenant or rule in such a case can actually be illegal.

Excerpt from RKW’s Utah HOA Law app:

The federal Fair Housing Act prohibits discrimination by landlords and HOAs, as well as others associated with providing housing whose discriminatory practices make housing unavailable (or restrict the use of housing) to persons because of:

•   race or color
•   religion
•   sex
•   national origin
•   familial status, or
•   disability

. . .

Discrimination Based Upon Disability

The Fair Housing Act prohibits discrimination on the basis of disability in all types of housing transactions.  It’s important to realize that discrimination against disabled persons is unlike any other type of discrimination.  At the core of the policy against discrimination is the concept that everyone should be treated equally.  The Act, however, requires that housing providers give special treatment to the disabled when it is necessary to allow them to have an equal opportunity to enjoy their dwellings.

Reasonable Accommodations.

Specifically, a disabled person is entitled to “reasonable accommodations” (exceptions) in the rules, practices, or services of a housing provider (including an HOA) that are necessary for a disabled individual to use or enjoy a dwelling.  So, while uniform enforcement of the governing documents and rules is crucial as a general principle in an HOA, such uniform enforcement is actually against the law when a rule interferes with a disabled person’s use and enjoyment of their dwelling.  For instance, an HOA has a “no pets” policy.  A resident who is deaf requests that the HOA allow him to keep a dog in his unit as a reasonable accommodation.  The resident explains that the dog is an assistance animal that will alert him to several sounds, including knocks at the door, sounding of the smoke detector, the telephone ringing, and cars coming into the driveway.  The HOA must make an exception to its “no pets” policy to accommodate this resident.

When considering a request for a “reasonable accommodation,” an HOA must normally evaluate whether: (1) the individual is disabled, (2) the requested accommodation is reasonable, and (3) the requested accommodation is necessary for the individual to use or enjoy a dwelling.

1.  Disabled.  An individual can be disabled in one of three ways. A disability is: (a) a mental or physical impairment which substantially limits one or more major life activities, (b) a record of having such an impairment, or (c) being regarded as having such an impairment.

The term mental or physical impairment may include conditions such as blindness, hearing impairment, mobility impairment, mental retardation, alcoholism, drug addiction (but current drug users are not considered disabled), chronic fatigue, learning disability, head injury, and mental illness.  The term major life activity may include seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning, speaking, or working.

2.  Reasonable.  To be reasonable, an accommodation cannot impose an undue financial or administrative burden on the HOA and the benefit of the accommodation to the disabled person is weighed against the burden on the housing provider.  Those things are determined on a case-by-case basis taking various factors into account, such as the cost, the resources of the provider, the benefit of the accommodation, and whether alternatives would meet the disability-related needs.

3.  Necessary.  For a requested accommodation to be necessary for the individual to use or enjoy a dwelling, the requested accommodation must affirmatively enhance a disabled plaintiff’s quality of life by ameliorating the effects of the disability.  In other words, there must be a nexus between the disability and the requested accommodation.

Modifications.

The Act also requires an HOA to permit a disabled person to make reasonable modifications to the common area or to a unit in order to afford that person full enjoyment of the premises.  The modification is made at the disabled person’s expense (unless it is to be used by anyone other than that person, or if the HOA requires more expensive materials or options than those proposed by the owner, the HOA pays the difference).  This is in contrast to an accommodation. Accommodations are made by the housing provider (HOA) and can result in an expense to the HOA (unless it creates a financial burden on the HOA).

The same three criteria applicable to reasonable accommodations (disability, reasonableness, necessity) must be met or the HOA is not required to allow the modification.

HUD has given examples of modifications that are typically considered reasonable, which include:

1. widening doorways to make rooms more accessible for persons in wheelchairs;
2. installing grab bars in bathrooms;
3. adding a ramp to make a primary entrance accessible for persons in wheelchairs; or
4. altering a walkway to provide access to a public or common use area.

. . .

This is a tricky area that can be counter-intuitive for boards.  A board should be familiar with and understand the above concepts, but this is definitely one area where a qualified attorney should be consulted prior to a board making any final decision to grant or deny a request for reasonable accommodation.

1 Comment | Enforcement, Fair Housing / Discrimination, Governance | Tagged: , , | Permalink
Posted by Curtis G. Kimble

5 Ways to Reduce Assessment Delinquencies

January 7, 2013

By Curtis G. Kimble.

Our law firm helps many HOA boards and managers collect past-due assessments (dues) from members.  Collecting on delinquencies is not easy work in any event, but it can inadvertently be made even more difficult than necessary by a manager or board.  Here are 5 ways to help ensure delinquencies can be collected in a timely manner.

1.  Have a collection policy in place and let your owners know about it.  A collection policy should explain due dates, when late charges are incurred, the interest rate on late amounts, returned check charges, and what actions will be taken on delinquent accounts and when.  At the same time, a collection policy should be somewhat flexible, rather than taking a hardline approach requiring a series of actions taken at set-in-stone dates.  Seek the advice of the association’s attorney because many laws and the association’s governing documents must be taken into consideration.  Finally, follow all the steps in the policy.

2.  Ensure the names and addresses of owners are accurate and up to date.  Sure, it’s generally the job of the owner to ensure the association has an accurate mailing address.  But, a board can avoid some headache by doing what they can to ensure accurate contact information.  Try to ensure actual contact with an owner is made before sending their account to collection.  Be aware of returned mail and vacant properties.  The primary complaints we see from owners are, “I’ve never heard anything from the association” and “if they had just knocked on my door and talked to me about it.”

It’s not a volunteer board member’s job to go knocking on doors to collect money, rather, it’s the individual owner’s duty to make sure their debts are paid.  Additionally, casual collection procedures that embarrass owners should be avoided.  But, communication is key, and communication can’t occur without accurate owner information.

3.  Implement effective procedures that will identify accounting errors.  Every HOA must use good, basic accounting practices.  I’m not saying every small association must strictly use GAAP (Generally Accepted Accounting Principles), which is a codification of how CPA firms and large corporations prepare and present their business income and expense, assets and liabilities on their financial statements.  But using a homemade accounting system on a spreadsheet or hand-written ledger can be a recipe for a mess and can significantly delay proper collection remedies.

Ideally, use bookkeeping software that will give you reasonable reports of every individual property account with a history of charges, payments, and a running balance.  Make notes that identify payments by check numbers and sender’s identity.  Identify charges to the individual’s account by item or purpose.  Be able to provide an accounting that will clarify the what and why of an individual’s balance at any given time.  When switching accounting systems or switching property managers, make sure to have a means or require a means of providing the history for any balance forward carried into the new system.

4.  Take action when assessments remain unpaid.  The association has rights that should be preserved early on with a delinquent account.  Follow the association’s collection policy.  Ensure letters are sent to the owner, a lien is filed against the property, and additional remedies are being pursued, as appropriate.  The more time passes, the harder it will be to collect.

5.  Take collection action uniformly and consistently with all owners who are delinquent.  Do not let personality conflicts or personal relationships factor into the actions taken on a delinquent account.  Treat all owners equally and fairly.

Associations that consistently follow good and effective practices, such as the ones listed above, have more success obtaining the cooperation of the owners and collecting delinquent assessments without having to resort to extreme legal measures.  Contact us if you’d like assistance implementing any of these practices or to help your association collect on delinquencies.

1 Comment | Governance, HOA Finances | Tagged: , , | Permalink
Posted by Curtis G. Kimble

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