Utah HOA Legislative Forecast for 2023
Utah HOA Legislative Forecast for 2023
by Tyler S. LaMarr, Chair of Utah’s Legislative Action Committee and attorney at Miller Harrison Lawyers
Each year Utah’s CAI Legislative Action Committee (LAC) engages in the legislative process in an effort to improve Utah’s laws pertaining to HOAs. LAC volunteers and LAC’s professional lobbyists spend countless hours tracking bills, meeting with lawmakers, and advancing favorable legislation for Utah’s HOAs.
Many Utah HOAs participate in CAI’s “Dollar a Door (or more)” fundraising campaign. Thank you for those who choose to donate! We encourage board members and managers to help Utah’s HOAs sign up and donate to this critical function for Utah’s HOA industry.
As with the weather, it is difficult to forecast legislative storms for any given legislative session. The 2023 session is forecast to be productive and beneficial for HOAs. The purpose of this article is to provide a forecast of pending and anticipated legislation. Thank you for your engagement and support. LAC welcomes your feedback and participation in its ongoing legislative efforts.
CAUTION: The following report identifies potential legislation only. CAI and LAC will provide further updates regarding bills that successfully become law.
2023 CAI/LAC Sponsored Bills
Sponsor: Senator Wayne Harper
- Applicability of Community Association Act
LAC has proposed a new section at the beginning of the Community Association Act (57-8a et seq.) clarifying that the Act applies to all associations regardless of when the association was created. The Act was adopted in 2004 and a recent Court of Appeals case suggests that pre-2004 associations may not be subject to the provisions of the Act. Kelly v. Timber Lakes 2022 UT App 23.
If successfully adopted, this bill would formalize what is already a common assumption for pre-2004 HOAs, lawmakers, many courts, and practitioners in the industry.
- HOA Rule Adoption.
LAC has prepared a draft amendment to §217 of the Act that would (1) provide a formal definition for a “rule” , and (2) set a statute of limitations of 18 months for HOA members to challenge the validity of an HOA’s rule adoption process.
The intent of this bill to provide clarity to HOAs engaged in the process of adopting and amending rules, and to reduce liability exposure for HOAs that fail to strictly follow the existing rule adoption requirements for Association’s governed by the Utah Community Association Act.
- Records – Clarifying Scope of “Records” to be kept and provided
LAC has proposed that the Utah Nonprofit Corporation Act (§§1601-1602) be amended to mirror the language contained in the model nonprofit corporations act. The purpose of this amendment is to clarify the scope of records that must be kept and provided as a matter of statutory right to members of the corporation and to reduce litigation on this topic that is increasingly common to Utah’s HOAs.
- Political Signage – Definition
LAC has proposed adding a definition to the term “political sign” to the Community Association and Condo Acts. The lack of definition has generated confusion for HOA boards and managers tasked with implementing and enforcing rules related to signage. The proposed definition would mirror an existing definition under a separate and currently inapplicable section of Utah Code:
(b) | "Political sign" means any sign or document that advocates:
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Currently, the undefined term presents questions about whether flags or other displays constitute political signage.
- Solar Legislation
During the 2022 Utah legislative session, the Community Association Act was amended to allow solar energy systems to be installed on attached homes, if the roofs and exteriors were not maintained by the HOA and all owners within the attached building provided consent. The prior legislation the word “detached” was inadvertently overlooked and not deleted. LAC has proposed cleaning up the prior legislation by deleting the word “detached” as follows:
(6) | A declaration or an association rule may require an owner of a
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This clarification will enable the HOA to impose basic aesthetic and safety guidelines for owners electing to install solar on attached housing.
- Permissible Fee for Rental Units within HOA
Utah Code §57-8-10.1(8)(c) & §57-8a-209 (8)(c) state that an association may not rental lot owners to "pay an additional assessment, fine, or fee because the lot is a rental unit/lot."
LAC has proposed an amendment to these sections permitting an annual fee of up to $250:
"pay an additional assessment, fine, or fee because the lot is a rental unit {lot}, however, the association may charge an annual permitting/administrative fee of up to $250 to defray the association’s costs directly related to the additional administrative expenses of a rental unit/lot. "
LAC’s proposal is in recognition that HOAs are better managed with accurate records of ownership, tenancy, and occupancy. These records facilitate good communication including costs involved with providing welcome packet and copies of governing documents and rules. A minimal fee enables better HOA governance.
Other Bills and Possible/Anticipated Legislation
These bills restrict individuals on the sex offender registry from entering a homeowners’ association swimming pool, park, or playground.
- UT HB 211 Sponsor: Musselman. Provisions related to Residential Property Service Agreements.
This bill provides that certain residential property service agreements are void and further prohibits such agreements from being recorded against real property as an agreement running with the land.
- Water Wise Landscaping
In light of recent news coverage related to HOA restrictions on artificial turf and xeriscaping some Utah legislators have discussed further limiting an HOA’s right to restrict water wise landscaping. To date, we have not seen any open bill files, but LAC and CAI will continue to monitor this issue throughout the 2023 session.
- Reinvestment Fees
Some Utahns have asked legislators to consider limiting an HOA’s right to collect reinvestment fees when the collected fees are disproportionate to the amenities and common areas managed and maintained by the HOA. To date, we have not seen any open bill files, but LAC and CAI will continue to monitor this issue throughout the 2023 session.
- Proposed Bill to “Protect vulnerable homeowners from rogue HOAs”
Representative Phil Lyman’s website continues to promote legislation aimed at protecting vulnerable homeowners from HOAs. Last year, Rep. Lyman sponsored HB 445, which did not pass. LAC opposes the Rep. Lyman’s bill, and will continue to track and monitor efforts in the 2023 session.