Emphasis Added

South Hills POD 4 is a private community that is registered with the state of Utah as a nonprofit corporation, complete with a board of trustees. As a private community, the association (homeowners) is responsible for the maintenance/repairs of all roadways, sidewalks, curbs, parks, etc. – anything that is common property. A pothole develops? We, not the city, get to repair it. Playground equipment breaks? It’s our responsibility to get it fixed or replaced. Chipped and cracked sidewalks are on us.

Utah Code 57-8a-226(3)(a) Except as provided in Subsection (3)(b), a board meeting shall be open to each lot owner or the lot owner's representative if the representative is designated in writing.

Utah Code 57-8a-227(1)(a) Subject to Subsection (1)(b), an association shall keep and make documents available to lot owners in accordance with Sections 16-6a-1601 through 1603, 16-6a-1605, 16-6a-1606, and 16-6a-1610.

(i) regardless of whether the association is incorporated under Title 16, Chapter 6a, Utah Revised Nonprofit Corporation Act; and

(ii) including keeping and making available to lot owners a copy of the association's:

(A) declaration and bylaws;

(B) most recent approved minutes; and

New 2023 HOA Laws and What They Mean For Your HOA

Records

Senate Bill 191 (2023) clarifies the Nonprofit Act regarding which records an owner is entitled to see if the owner follows the process specified in Subsection 16-6a-1602(2) (the process that requires the owner to have a "proper purpose" for seeing the records). The statute now specifies that the records that may be viewed after following that particular process are the "other records" listed in Utah Code Subsections 16-6a-1601(2) through (5), namely: "appropriate" accounting records and a membership list with the names and addresses of all members in alphabetical order and showing the number of votes of each member. Previously, the subsection referred to "any of the other records of the nonprofit corporation." A different process is required for certain other records and other records must be available on the HOA's website (or office). (Since Subsection 16-6a-1602(1) specifies the process to view the records listed in Subsection 16-6a-1601(5), the process specified in Subsection 16-6a-1602(2) only applies to the records listed in 16-6a-1601(2) through (4), which, again are "appropriate" accounting records and the membership list).

The bill also defines the term "corporate records" in the definitions section of the Utah Revised Nonprofit Corporation Act, to mean the records described in Section 16-6a-1601, and to exclude "correspondence, communications, notes, or other similar information, regardless of format or method of storage, that are not an official decision, published document, or record of the corporation." However, the Nonprofit Act never uses the term "corporate records" in any substantive way, so the definition has limited usefulness, if any at all. See Utah Code Section 16-6a-102(13).

Rental Restrictions

The law prohibits a condo and community association from requiring an owner who rents out their home to pay an additional assessment or fee because the home is a rental. Senate Bill 191 (2023) amends the statute to provide that an association that permits at least 35% of the units in the association to be rental units may charge an owner who rents their unit an annual fee of up to $200 to defray the association's additional administrative expenses directly related to that rental unit, as detailed in an accounting provided to the owner. See Utah Code Section 57-8a-209(9)(c).

Board Member Qualifications, Sex Offenders

Senate Bill 191 (2023) amends the law to provide that an association may, through governing documents or the board's internal procedures, disqualify an individual from serving as a director because the individual has either been convicted of a felony or is required to register with the sex offender registry due to a conviction for an offense committed against a person under 18 (a.k.a. a "sex offender"). See Utah Code Section 57-8a-501.

The bill further provides that an association rule may restrict an adult or juvenile who is required to register with the sex offender registry due to a conviction for an offense committed against a person under 18 (a.k.a. a "sex offender") from accessing a swimming pool, park or playground that is maintained, operated, or owned by the association (a "protected area"), except an association cannot restrict such access when that person must be in a protected area to perform their parental responsibilities. See Utah Code Section 57-8a-218(18).

Definition of "Political Sign"

The law contains restrictions against association rules restricting political signs, except reasonable regulations on the time, place, and manner of posting a political sign. But, the law never defined what constituted a political sign. Senate Bill 191 (2023) defines a "political sign" to mean "any sign or document that advocates: (1) the election or defeat of a candidate for public office, or (2) the approval or defeat of a ballot proposition." See the new definitions in Utah Code Section 57-8a-102(21). See the restrictions against rules governing political signs in Utah Code Section 57-8a-218(4).

Community Associations Only

Water-efficient Landscaping

Under Senate Bill 191 (2023), community associations must adopt required rules regarding water efficient landscaping before June 30, 2023. The requirement for associations to adopt rules supporting water-efficient landscaping, including allowance for low water use on lawns during drought conditions, was made law in 2022. This new law requires those rules to be adopted by June 30, 2023. Additionally, the bill explicitly provides that a rule may not prohibit low water use on lawns during drought conditions. See New 2022 HOA Laws and What They Mean For Your HOA. See also Utah Code Section 57-8a-218(16).

House Bill 450 (2023) modifies Utah Code Section 57-8a-231 in the Community Association Act, which was enacted last year and states that an association may not enforce a governing document that prohibits a lot owner of a detached home (aka single family home) from incorporating water wise landscaping on the owner's lot, except in certain instances. The bill clarifies that an association may restrict or prohibit the use of specific plant materials other than water wise plant materials (as defined in the statute). Additionally, the provision in the statute that said an association could adopt a requirement that imposes minimum or maximum vegetative coverage was deleted. Now the statute says an association may not require an owner to have more than 50% vegetative coverage that is not water wise landscaping on the owner's lot.

Rules

The law that's been in place for several years in Utah Code Section 57-8a-217 requires that before a board in a community association adopts or amends a rule, the board must: (1) deliver notice to the owners that the board is considering a change to a rule, (2) provide an open forum at the board meeting giving owners an opportunity to be heard at the board meeting before the board adopts or amends a rule, and (3) deliver a copy of the change in the rules within 15 days after the date of the board meeting.

Senate Bill 152 (2023) amends the law to say that if a board fails to do any of those things, a lawsuit must be brought within 18 months in order to challenge the board action. See Subsection 57-8a-217(7).

Definition of "Rule"

Both the Condo and Community Association Acts have long had provisions governing "rules" in an association but neither act ever defined what constitutes a rule (other than that a rule is adopted by a board and the provisions of CC&Rs and bylaws are not rules).

Senate Bill 191 (2023) defines "rule" for community associations (but, strangely, not for condos):

"Rule" means a policy, guideline, restriction, procedure, or regulation of an association that:
(1) is not set forth in a contract, easement, article of incorporation, bylaw, or declaration; and
(2) governs the conduct of persons, or the use, quality, type, design, or appearance of real property or personal property.
"Rule" does not include the internal business operating procedures of a board.

See Utah Code Section 57-8a-102(25).

Applicability of the Community Association Act

To avoid any confusion and curtail any argument that the Community Association Act doesn't apply to a given association just because the association was formed before a certain provision of the act was enacted, Senate Bill 152 (2023) amends the law to provide that the act applies to an association that registers or updates the association's registration with the Utah HOA Registry. Of course, registering and updating an association's registration with the HOA Registry is required by the law. See Utah Code Section 57-8a-105(7).

How the new laws affect your community and what you need to do to comply with the new laws

Your community association (non-condos) must adopt rules supporting water-efficient landscaping, including allowance for low water use on lawns during drought conditions. by June 30, 2023.

New 2022 HOA Laws and What They Mean For Your HOA

The Utah general legislative session for 2022 was January - March 2022, and the general effective date for legislation from the session was May 4, 2022.

Water-efficient Landscaping

Under Senate Bill 152 (2022), all associations (even condominiums) are required to adopt rules supporting water-efficient landscaping, including allowance for low water use on lawns during drought conditions. See Utah Code Sections 57-8a-218(16) and 57-8-8.1(9).

Under House Bill 282 (2022), an association may not prohibit an owner of a lot with a detached dwelling (aka single family home) from incorporating water wise landscaping on the owner's lot. "Water wise landscaping" means any of the following: (1) installation of plant materials suited to the microclimate and soil conditions that can remain healthy with minimal irrigation once established or be maintained without the use of sprinklers, (2) use of water for outdoor irrigation through proper and efficient irrigation design and water application, or (3) the use of other landscape design features that either minimize the need of the landscape for supplemental water from irrigation or reduce the landscape area dedicated to lawn.

However, an association can require a lot owner to comply with a site plan review process, to maintain plants in a healthy condition, and to follow specific water wise landscaping design requirements adopted by the association, and can restrict the use of mulches considered detrimental to the association's operations, impose minimum or maximum vegetative coverage, and restrict the use of specific plant materials.

The bill enacts a new section of the Community Association Act, Utah Code Section 57-8a-231.

Finally, an association may not require a lot owner to have lawn in an area that's less than eight feet wide and may not restrict the conversion of a "grass park strip" to water-efficient landscaping. See Senate Bill 152 and House Bill 282, now codified in Utah Code Sections 57-8a-218(16), 57-8-8.1(9) and 57-8a-231(3)(b).

Records

Senate Bill 152 (2022) limits the records that owners are entitled to see to just the main records, such as minutes, governing documents, financials, etc. This is a change from prior law where owners were entitled to view and copy virtually all records of their HOA. Specifically, an association is required to keep and make available to owners a copy of the governing documents, most recent approved minutes, most recent budget and financial statement, most recent reserve analysis, and certificate of insurance for each insurance policy the association holds, plus the records listed in Utah Code Subsections 16-6a-1601(1) through (5).

Additionally, an association must now have all of its governing documents on its website, including the CC&Rs (declaration), articles of incorporation, bylaws, the plat of the development, and the rules, as well as the most recent approved minutes and most recent budget and financial statement. Previously, just the declaration and bylaws (and most recent approved minutes and most recent budget and financial statement) were required to be on the website. If the association doesn't have a website, then it must make the documents available to lot owners free of charge during regular business hours at the association's address listed with the Utah HOA Registry. See Utah Code Section 57-8a-227(2) and Section 57-8-17(2).

Electric Vehicle Charging Systems

Senate Bill 152 (2022) added new statutes to both the Condo Act and Community Association Act that provide:

an association may not prohibit an owner from installing or using an electric vehicle charging system in a parking space on the owner's lot or in a limited common area parking space designated for the owner's exclusive use;
an association may (1) require the owner to obtain approval before installing a charging system; (2) require that an electrical contractor install the charger, or if installed on common area, require the owner to reimburse the association for any increase in the insurance premium caused by the installation of the charger; (3) require the system to comply with the association's design criteria and other restrictions if they do not significantly increase the cost of or decrease the efficiency or performance of the charging station; and (4) require the owner to pay the costs of installation, metering, and use of the system, including the costs of electricity and damage to common area.

See Utah Code Section 57-8a-801 and 802 and Section 57-8-8.2.

Rules

Senate Bill 152 (2022) amends and enacts provisions in Utah Code Sections 57-8a-218 and 57-8-8.1 "Equal treatment by rules required -- Limits on association rules and design criteria."

Religious and Holiday Displays. A rule may not abridge the rights of an owner to display a religious or holiday sign, symbol, or decoration inside a dwelling or outside a dwelling on: (1) a lot, (2) the exterior of the dwelling, unless the association owns or maintains the exterior, or (3) the front yard of the dwelling, unless the association owns or maintains the yard. But, the association may adopt a reasonable time, place, and manner restriction with respect to a display that is outside a dwelling and visible from outside the lot.

Political Signs. The new law says a rule may not prohibit an owner from displaying a political sign inside a dwelling or outside a dwelling on: (1) a lot, (2) the exterior of the dwelling, regardless of whether the association owns the exterior, or (3) the front yard of the dwelling, regardless of whether the association owns the yard. A rule may reasonably regulate the time, place, and manner of posting a political sign, but may not regulate the content of a political sign. A "design provision" may not establish design criteria for a political sign.

For-Sale Signs. Finally, a rule may not prohibit an owner from displaying a for-sale sign inside a dwelling or outside a dwelling on: (1) a lot, (2) the exterior of the dwelling, regardless of whether the association owns the exterior, or (3) the front yard of the dwelling, regardless of whether the association owns the yard. A rule may reasonably regulate the time, place, and manner of posting a for-sale sign.

How the new laws affect your community and what you need to do to comply with the new laws

Rules

Your association must adopt rules supporting water-efficient landscaping, including allowance for low water use on lawns during drought conditions. The new law doesn't establish how quickly an association must adopt the rules (and doesn't establish a penalty for failing to do so), so your association should simply adopt the rules within a reasonable time, but definitely before the association attempts to enforce against any violations that are the result of low water use, such as a yellow lawn.

Additionally, note that if an association wants to prevent an owner from placing a political sign or for-sale sign on the common area in front of the owner's home, the CC&Rs must contain the restriction and not merely the rules. So, those associations will want to review their CC&Rs for such a restriction and adopt an amendment if they don't have one.

Records

Make sure the following are on the association's website:

1. All governing documents, namely:

CC&Rs (declaration),
articles of incorporation,
bylaws,
the plat for the development,
rules and architectural guidelines,
any other document by which the association may exercise powers or affect the property, such as resolutions of the board.

2. the most recent approved minutes, and

3. the most recent budget and financial statement.