801.790.9000 7070 South Union Park Center, Suite 220 Midvale, UT 84047
435.575.9000 1776 Park Avenue, Suite 209 Park City, UT 84060

News/Blog

News/Blog

January 25, 2018

 

Three Morris Sperry lawyers attended the national community association law seminar to continue to hone their skills and remain the most qualified HOA lawyers in Utah. The Conference covered cutting edge aspects of community association law along with in-depth seminars on new approaches to old issues. Morris Sperry attorneys take the time to attend this seminar in a continuing effort to remain the leading lawyers in the Utah HOA legal community.  

 

 

Comments 0   Add new comment
November 16, 2017

John Morris presented today on new Fair Housing Act regulations that could dramatically change how HOAs look at housing discrimination. In the modification to the regulations, [81 FR 63074, Sept. 14, 2016], at 24 CFR § 100.7 - LIABILITY FOR DISCRIMINATORY HOUSING PRACTICES, HUD for the first time clearly defines the potential for direct liability for an HOA for the discriminatory actions of an Owner in the Association. A condominium association or homeowners association could be liable for "Failing to take prompt action to correct and end a discriminatory housing practice by a third party, where it knew or should have known of the conduct and had the power to correct it." It is now left to the HOAs to determine who the third parties are, what it means to "have the power to correct," and to figure out how to exercise that power in a way that satisfies the requirements of the Fair Housing Act. HUD also issued new regulations on Quid Pro Quo and Hostile Environment Harassment found at 24 CFR § 100.600. These new regulations made it clear that Pro Quo and Hostile Environment Harassment  is illegal under the Fair Housing Act.  John Morris discussed these issues at the CAI luncheon presentation along with other panelists who included Chris Robison from the Utah Antidiscrimination and Labor Division. Morris Sperry has as much or more experience with defending and prosecuting HOA Fair Housing complaints that any firm in Utah, and offers their homeowners association clients and owner clients solid advice and legal representation in these complicated and fact intensive matters.   

Comments 0   Add new comment
October 28, 2017

Quinn Sperry of Morris Sperry was elected by his industry peers as the President-Elect of the Utah Chapter of the Community Association Institute. His service as President will start in one year. This continues Quinn's long standing service in the local Utah Chapter of CAI and his dedication to making HOAs better in Utah. Quinn has served as the Chair and a long standing member of the Communications Committee of the local chapter in Utah and is widely recognized in the industry for his work on bringing the local newsletter to Utah Board Members and Owners.

Comments 0   Add new comment
August 31, 2017

 

Quinn Sperry was elected by his peers to serve as the Treasurer of the Community Association Law Section of the Utah State Bar for the 2017 through 2018 year. He was elected at the 2017 annual meeting of the section. This further demonstrates Morris Sperry's commitment to service. Quinn served on a committee of the section since 2016 and will continue to support the section that was Morris Sperry's idea and that Morris Sperry applied to create with the Utah State Bar in 2015. Quinn is looking forward to helping the section fulfil its mission and goals.

Comments 0   Add new comment
August 31, 2017

 

On August 31, 2017, John Morris teamed up with Matt Liapis, a GIS expert, to discuss GIS and digital mapping technology and how it can be used in litigation. Specifically, John explained how this technology was used by Morris Sperry in obtaining a fifteen million dollar judgment. GIS presents a new opportunity for visualizing and analyzing property ownership on a massive scale and in a way that simplifies and quantifies a tremendous amount of data in simple to see and understand maps. Mat Liapis testified as a GIS expert in the trial and was able to effectively and efficiently demonstrate on digital maps the ownership of thousands of parcels of property at several different time periods. He was further able to visualize and quantify hundreds of lots upon which certain documents had been recorded. Using alternative methods of quantifying and presenting this data such as through traditional title searches and reports would have cost hundreds of thousands of dollars. In contrast, the GIS analysis and mapping was more persuasive, easily understood, and cost a small faction of that amount. Morris Sperry uses cutting edge technology in litigation and trial both to increase the persuasiveness of their arguments and to keep costs down. 

 

Comments 0   Add new comment
May 31, 2017

 

In what is almost certainly the largest wrongful lien verdict in Utah and perhaps the largest in the United States, Morris Sperry lawyers obtained a $15,110,000 wrongful lien judgment (pursuant to the Utah Wrongful Lien Act beginning at Utah Code Ann. Section 38-9-101) for their clients after a week-long trial. The judgment out of the Fourth District Court includes over fourteen million dollars in wrongful lien statutory damages and over half a million dollars in attorney fees. The trial judgment included both an award of $3,000 per interest holder under Utah Code Ann. Section 38-9-203(1) and an award of $10,000 per interest holder under Utah Code Ann. Section 38-9-203(2). The judgment was obtained for three association clients, Cold Springs, Rock Creek, and Willow Springs in the Ranches at Eagle Mountain. In addition to the massive verdict, Morris Sperry obtained an order of quiet title eliminating forever any obligation of the owners in Morris Sperry's client associations to pay assessments to the Ranches master association and clearing the title to their homes of any CC&Rs, declarations, bylaws, notices of liens, and other documents previously recorded by the Ranches.

It started when Morris Sperry was retained to review some irregularities in the amendment procedures used by the Ranches master association. Morris Sperry lawyers figured out that the Ranches documents had serious legal defects and could potentially be invalidated, freeing Morris Sperry's clients from any obligations of the master association and eliminating over ten thousand dollars a month in assessments being paid by the owners in Morris Sperry's client associations. Based on the detailed and extensive analysis of the legal issues prepared by Morris Sperry, their clients were confident going forward with an extraordinary challenge to the Ranches authority even though the master association had operated for more than ten years. When the Ranches refused to release its documents, Morris Sperry filed and prosecuted a lawsuit that involved complicated legal and equitable issues.The Morris Sperry attorneys' unparallelled understanding of HOA law and extensive complex litigation experience allowed their clients to achieve this amazing trial result and huge verdict. When you have an HOA legal problem and you really want the right answer, this case is just one more example of why Morris Sperry is the only choice in Utah.

Comments 0   Add new comment
January 17, 2017

 

For the fourth straight year, more Morris Sperry lawyers attended the largest and most important HOA law seminar in the nation than any other Utah law firm. Six lawyers from Morris Sperry spent four days in seminars on topics such as drones, hot HOA topics, amending governing documents, pets in HOAs, fiduciary duties, and several other community association topics. The law seminar put on by the College of Community Association Lawyers is the best opportunity for serious HOA lawyers to talk about HOA issues and strategies with hundreds of lawyers from around the country focused in this complex area of law. Morris Sperry lawyers attending and presenting at this seminar fine tune cutting edge strategies and ideas for inclusion in new governing documents and implementation throughout their practice. Morris Sperry invests in this training because they remain the only law firm in Utah focused exclusively on representing associations, owners, and developers in the complex area of community association law (condominiums, HOAs, townhomes, PUDS, and homeowner associations). Who do you want representing your condominium, townhome, or HOA, the lawyer who spends part of their time on HOA law or the lawyers at Morris Sperry who invest the time and effort to stay on the cutting edge of legal issues in the complex area of community association law?

Comments 0   Add new comment
September 20, 2016

 

John Morris of Morris Sperry took time out of his busy schedule to visit Ms. Peck's class at McMillan elementary school to talk about the judicial system and put on a mock trial in which the students participated. With a prosecutor, judge, jury, defense lawyer, and multiple witnesses, the children all played their parts and had a great time. Morris Sperry lawyers are always looking for a way to participate in the community.

 

Comments 0   Add new comment
May 24, 2016

While we generally trust in the integrity of owners, managers, and board members counting votes by owners at HOA board elections, that trust must have limits in the form of good controls. Investigations into condominium election fraud in Florida highlight the problem.  In one case, 115% of the owners voted in the annual election! In another, multiple people have confirmed that ballots submitted on their behalf were entirely fraudulent and do not contain their signature. The goal of this fraud is different in different community associations. Sometimes it is a misguided but innocent effort on the part of board members to keep election costs down. Other times it is an effort by entrenched board members to remain in power.  Even worse, sometimes it is part of a concerted effort to rob the assocaition of funds starting with the people on the board remaining in control and sometimes with the collusion of the manager. Hundreds of other complaints of election fraud were submitted in Florida in the last few years.   

It would be delusional to think this type of association electrion fraud never occurs in Utah, even if it is rare. Morris Sperry can help implement processes on behalf of associations and owners to minimize this risk when owners are concerned about election fraud or to proactively prevent any concerns. We have successfully participated in several hotly contested elections and implemented mutually agreeable procedures for collecting and counting ballots. These procedures gave everyone confidence in the results. Morris Sperry has the experience to advise associations and owners about elections, voting, counting procedures, and safeguards to ensure the integrity of the voting process.  

Comments 0   Add new comment
May 23, 2016

John Holland, the founder of Property Management Systems Inc., passed away May 17, 2016. Anyone who had the privilege of meeting John remembered him as a kind and thoughtful man who always made anyone he was speaking with feel special. He built a very successful property management business on hard work and his ability to build relationships. John and his son Joe introduced John Morris of Morris Sperry into the HOA world. Fresh out of law school, John Morris served on the board of his condominium association that Property Management Systems managed. After getting to know one another, Joe asked John Morris to help him with another association's legal issues. The rest is history as John Morris's practice included more and more HOA work until it become his sole focus. This culminated in the founding of Morris Sperry, the only law firm in Utah focused on HOA law. Joe and John Morris are still friends and still working together to solve problems for HOAs.

John Holland was a good man and he will be missed by his family, his employees, and those in the property management industry. We offer our deepest condolences from the lawyers and staff at Morris Sperry. 

Comments 0   Add new comment

Pages

October 28, 2017

Quinn Sperry of Morris Sperry was elected by his industry peers as the President-Elect of the Utah Chapter of the Community Association Institute. His service as President will start in one year. This continues Quinn's long standing service in the local Utah Chapter of CAI and his dedication to making HOAs better in Utah. Quinn has served as the Chair and a long standing member of the Communications Committee of the local chapter in Utah and is widely recognized in the industry for his work on bringing the local newsletter to Utah Board Members and Owners.

Comments 0   Add new comment
August 31, 2017

 

Quinn Sperry was elected by his peers to serve as the Treasurer of the Community Association Law Section of the Utah State Bar for the 2017 through 2018 year. He was elected at the 2017 annual meeting of the section. This further demonstrates Morris Sperry's commitment to service. Quinn served on a committee of the section since 2016 and will continue to support the section that was Morris Sperry's idea and that Morris Sperry applied to create with the Utah State Bar in 2015. Quinn is looking forward to helping the section fulfil its mission and goals.

Comments 0   Add new comment
August 31, 2017

 

On August 31, 2017, John Morris teamed up with Matt Liapis, a GIS expert, to discuss GIS and digital mapping technology and how it can be used in litigation. Specifically, John explained how this technology was used by Morris Sperry in obtaining a fifteen million dollar judgment. GIS presents a new opportunity for visualizing and analyzing property ownership on a massive scale and in a way that simplifies and quantifies a tremendous amount of data in simple to see and understand maps. Mat Liapis testified as a GIS expert in the trial and was able to effectively and efficiently demonstrate on digital maps the ownership of thousands of parcels of property at several different time periods. He was further able to visualize and quantify hundreds of lots upon which certain documents had been recorded. Using alternative methods of quantifying and presenting this data such as through traditional title searches and reports would have cost hundreds of thousands of dollars. In contrast, the GIS analysis and mapping was more persuasive, easily understood, and cost a small faction of that amount. Morris Sperry uses cutting edge technology in litigation and trial both to increase the persuasiveness of their arguments and to keep costs down. 

 

Comments 0   Add new comment
May 31, 2017

 

In what is almost certainly the largest wrongful lien verdict in Utah and perhaps the largest in the United States, Morris Sperry lawyers obtained a $15,110,000 wrongful lien judgment (pursuant to the Utah Wrongful Lien Act beginning at Utah Code Ann. Section 38-9-101) for their clients after a week-long trial. The judgment out of the Fourth District Court includes over fourteen million dollars in wrongful lien statutory damages and over half a million dollars in attorney fees. The trial judgment included both an award of $3,000 per interest holder under Utah Code Ann. Section 38-9-203(1) and an award of $10,000 per interest holder under Utah Code Ann. Section 38-9-203(2). The judgment was obtained for three association clients, Cold Springs, Rock Creek, and Willow Springs in the Ranches at Eagle Mountain. In addition to the massive verdict, Morris Sperry obtained an order of quiet title eliminating forever any obligation of the owners in Morris Sperry's client associations to pay assessments to the Ranches master association and clearing the title to their homes of any CC&Rs, declarations, bylaws, notices of liens, and other documents previously recorded by the Ranches.

It started when Morris Sperry was retained to review some irregularities in the amendment procedures used by the Ranches master association. Morris Sperry lawyers figured out that the Ranches documents had serious legal defects and could potentially be invalidated, freeing Morris Sperry's clients from any obligations of the master association and eliminating over ten thousand dollars a month in assessments being paid by the owners in Morris Sperry's client associations. Based on the detailed and extensive analysis of the legal issues prepared by Morris Sperry, their clients were confident going forward with an extraordinary challenge to the Ranches authority even though the master association had operated for more than ten years. When the Ranches refused to release its documents, Morris Sperry filed and prosecuted a lawsuit that involved complicated legal and equitable issues.The Morris Sperry attorneys' unparallelled understanding of HOA law and extensive complex litigation experience allowed their clients to achieve this amazing trial result and huge verdict. When you have an HOA legal problem and you really want the right answer, this case is just one more example of why Morris Sperry is the only choice in Utah.

Comments 0   Add new comment
January 17, 2017

 

For the fourth straight year, more Morris Sperry lawyers attended the largest and most important HOA law seminar in the nation than any other Utah law firm. Six lawyers from Morris Sperry spent four days in seminars on topics such as drones, hot HOA topics, amending governing documents, pets in HOAs, fiduciary duties, and several other community association topics. The law seminar put on by the College of Community Association Lawyers is the best opportunity for serious HOA lawyers to talk about HOA issues and strategies with hundreds of lawyers from around the country focused in this complex area of law. Morris Sperry lawyers attending and presenting at this seminar fine tune cutting edge strategies and ideas for inclusion in new governing documents and implementation throughout their practice. Morris Sperry invests in this training because they remain the only law firm in Utah focused exclusively on representing associations, owners, and developers in the complex area of community association law (condominiums, HOAs, townhomes, PUDS, and homeowner associations). Who do you want representing your condominium, townhome, or HOA, the lawyer who spends part of their time on HOA law or the lawyers at Morris Sperry who invest the time and effort to stay on the cutting edge of legal issues in the complex area of community association law?

Comments 0   Add new comment
September 20, 2016

 

John Morris of Morris Sperry took time out of his busy schedule to visit Ms. Peck's class at McMillan elementary school to talk about the judicial system and put on a mock trial in which the students participated. With a prosecutor, judge, jury, defense lawyer, and multiple witnesses, the children all played their parts and had a great time. Morris Sperry lawyers are always looking for a way to participate in the community.

 

Comments 0   Add new comment
May 23, 2016

John Holland, the founder of Property Management Systems Inc., passed away May 17, 2016. Anyone who had the privilege of meeting John remembered him as a kind and thoughtful man who always made anyone he was speaking with feel special. He built a very successful property management business on hard work and his ability to build relationships. John and his son Joe introduced John Morris of Morris Sperry into the HOA world. Fresh out of law school, John Morris served on the board of his condominium association that Property Management Systems managed. After getting to know one another, Joe asked John Morris to help him with another association's legal issues. The rest is history as John Morris's practice included more and more HOA work until it become his sole focus. This culminated in the founding of Morris Sperry, the only law firm in Utah focused on HOA law. Joe and John Morris are still friends and still working together to solve problems for HOAs.

John Holland was a good man and he will be missed by his family, his employees, and those in the property management industry. We offer our deepest condolences from the lawyers and staff at Morris Sperry. 

Comments 0   Add new comment
January 30, 2016

For the third straight year, more Morris Sperry lawyers attended the largest and most important HOA law seminar in the nation than any other Utah law firm. Five lawyers from Morris Sperry spent four days in seminars on topics such as aging communities, hot HOA topics, amending governing documents, pets in HOAs, plats, and several other community association topics. The law seminar put on by the College of Community Association Lawyers is the best opportunity for serious HOA lawyers to talk about HOA issues and strategies with hundreds of lawyers from around the country focused in this complex area of law. Morris Sperry lawyers attending and presenting at this seminar fine tune cutting edge strategies and ideas for inclusion in new governing documents and implementation throughout their practice. Morris Sperry can invest in this training because they remain the only law firm in Utah focused exclusively on representing associations, owners, and developers in the complex area of community association law (condominiums, HOAs, townhomes, PUDS, and homeowner associations). Who do you want representing your condominium, townhome, or HOA, the "jack of all trades" lawyer who would never invest the time in a seminar like this or the lawyers at Morris Sperry who invest the time and effort to stay on the cutting edge of legal issues impacting your assocaition?

Comments 0   Add new comment
January 14, 2016

John Morris, Quinn Sperry, and Brandon Myers were all selected by their peers as one of Utah Business magazine's 2016 Utah Legal Elite. This select group of lawyers practicing in Utah is chosen by other lawyers. The list of winners is published in a special edition of Utah Business magazine. Legal Elite honorees are selected by their peers in a statewide balloting process. Each year, members of the Utah Bar are invited to participate by submitting a ballot of Utah lawyers they hold in the highest regard - lawyers they have observed firsthand and would recommend to others. Nominators are allowed to cast only one ballot and can not vote for themselves. Morris Sperry lawyers have been selected for this list for years, and this selection is just one measure of the good work and value that Morris Sperry lawyers provide to their clients.

 

 

Comments 0   Add new comment
December 11, 2015

Lauren DeVoe has joined Morris Sperry as a new associate attorney. Lauren graduated at the top of her class at the University of Utah and served on the Utah Law Review. She interned for a Utah Supreme Court Justice and worked for a year as a clerk for judges in the Second District Court writing opinions and assisting judges in rendering decisions. She has a keen legal mind and fantastic experience that she will be putting to work for community associations, developers, and owners in HOAs. Morris Sperry is excited for Lauren's arrival and looks forward to the great legal work she will be providing Morris Sperry clients.

Comments 0   Add new comment

Pages

October 28, 2017

Quinn Sperry of Morris Sperry was elected by his industry peers as the President-Elect of the Utah Chapter of the Community Association Institute. His service as President will start in one year. This continues Quinn's long standing service in the local Utah Chapter of CAI and his dedication to making HOAs better in Utah. Quinn has served as the Chair and a long standing member of the Communications Committee of the local chapter in Utah and is widely recognized in the industry for his work on bringing the local newsletter to Utah Board Members and Owners.

Comments 0   Add new comment
August 31, 2017

 

Quinn Sperry was elected by his peers to serve as the Treasurer of the Community Association Law Section of the Utah State Bar for the 2017 through 2018 year. He was elected at the 2017 annual meeting of the section. This further demonstrates Morris Sperry's commitment to service. Quinn served on a committee of the section since 2016 and will continue to support the section that was Morris Sperry's idea and that Morris Sperry applied to create with the Utah State Bar in 2015. Quinn is looking forward to helping the section fulfil its mission and goals.

Comments 0   Add new comment
August 31, 2017

 

On August 31, 2017, John Morris teamed up with Matt Liapis, a GIS expert, to discuss GIS and digital mapping technology and how it can be used in litigation. Specifically, John explained how this technology was used by Morris Sperry in obtaining a fifteen million dollar judgment. GIS presents a new opportunity for visualizing and analyzing property ownership on a massive scale and in a way that simplifies and quantifies a tremendous amount of data in simple to see and understand maps. Mat Liapis testified as a GIS expert in the trial and was able to effectively and efficiently demonstrate on digital maps the ownership of thousands of parcels of property at several different time periods. He was further able to visualize and quantify hundreds of lots upon which certain documents had been recorded. Using alternative methods of quantifying and presenting this data such as through traditional title searches and reports would have cost hundreds of thousands of dollars. In contrast, the GIS analysis and mapping was more persuasive, easily understood, and cost a small faction of that amount. Morris Sperry uses cutting edge technology in litigation and trial both to increase the persuasiveness of their arguments and to keep costs down. 

 

Comments 0   Add new comment
May 31, 2017

 

In what is almost certainly the largest wrongful lien verdict in Utah and perhaps the largest in the United States, Morris Sperry lawyers obtained a $15,110,000 wrongful lien judgment (pursuant to the Utah Wrongful Lien Act beginning at Utah Code Ann. Section 38-9-101) for their clients after a week-long trial. The judgment out of the Fourth District Court includes over fourteen million dollars in wrongful lien statutory damages and over half a million dollars in attorney fees. The trial judgment included both an award of $3,000 per interest holder under Utah Code Ann. Section 38-9-203(1) and an award of $10,000 per interest holder under Utah Code Ann. Section 38-9-203(2). The judgment was obtained for three association clients, Cold Springs, Rock Creek, and Willow Springs in the Ranches at Eagle Mountain. In addition to the massive verdict, Morris Sperry obtained an order of quiet title eliminating forever any obligation of the owners in Morris Sperry's client associations to pay assessments to the Ranches master association and clearing the title to their homes of any CC&Rs, declarations, bylaws, notices of liens, and other documents previously recorded by the Ranches.

It started when Morris Sperry was retained to review some irregularities in the amendment procedures used by the Ranches master association. Morris Sperry lawyers figured out that the Ranches documents had serious legal defects and could potentially be invalidated, freeing Morris Sperry's clients from any obligations of the master association and eliminating over ten thousand dollars a month in assessments being paid by the owners in Morris Sperry's client associations. Based on the detailed and extensive analysis of the legal issues prepared by Morris Sperry, their clients were confident going forward with an extraordinary challenge to the Ranches authority even though the master association had operated for more than ten years. When the Ranches refused to release its documents, Morris Sperry filed and prosecuted a lawsuit that involved complicated legal and equitable issues.The Morris Sperry attorneys' unparallelled understanding of HOA law and extensive complex litigation experience allowed their clients to achieve this amazing trial result and huge verdict. When you have an HOA legal problem and you really want the right answer, this case is just one more example of why Morris Sperry is the only choice in Utah.

Comments 0   Add new comment
January 17, 2017

 

For the fourth straight year, more Morris Sperry lawyers attended the largest and most important HOA law seminar in the nation than any other Utah law firm. Six lawyers from Morris Sperry spent four days in seminars on topics such as drones, hot HOA topics, amending governing documents, pets in HOAs, fiduciary duties, and several other community association topics. The law seminar put on by the College of Community Association Lawyers is the best opportunity for serious HOA lawyers to talk about HOA issues and strategies with hundreds of lawyers from around the country focused in this complex area of law. Morris Sperry lawyers attending and presenting at this seminar fine tune cutting edge strategies and ideas for inclusion in new governing documents and implementation throughout their practice. Morris Sperry invests in this training because they remain the only law firm in Utah focused exclusively on representing associations, owners, and developers in the complex area of community association law (condominiums, HOAs, townhomes, PUDS, and homeowner associations). Who do you want representing your condominium, townhome, or HOA, the lawyer who spends part of their time on HOA law or the lawyers at Morris Sperry who invest the time and effort to stay on the cutting edge of legal issues in the complex area of community association law?

Comments 0   Add new comment
May 24, 2016

While we generally trust in the integrity of owners, managers, and board members counting votes by owners at HOA board elections, that trust must have limits in the form of good controls. Investigations into condominium election fraud in Florida highlight the problem.  In one case, 115% of the owners voted in the annual election! In another, multiple people have confirmed that ballots submitted on their behalf were entirely fraudulent and do not contain their signature. The goal of this fraud is different in different community associations. Sometimes it is a misguided but innocent effort on the part of board members to keep election costs down. Other times it is an effort by entrenched board members to remain in power.  Even worse, sometimes it is part of a concerted effort to rob the assocaition of funds starting with the people on the board remaining in control and sometimes with the collusion of the manager. Hundreds of other complaints of election fraud were submitted in Florida in the last few years.   

It would be delusional to think this type of association electrion fraud never occurs in Utah, even if it is rare. Morris Sperry can help implement processes on behalf of associations and owners to minimize this risk when owners are concerned about election fraud or to proactively prevent any concerns. We have successfully participated in several hotly contested elections and implemented mutually agreeable procedures for collecting and counting ballots. These procedures gave everyone confidence in the results. Morris Sperry has the experience to advise associations and owners about elections, voting, counting procedures, and safeguards to ensure the integrity of the voting process.  

Comments 0   Add new comment
May 23, 2016

John Holland, the founder of Property Management Systems Inc., passed away May 17, 2016. Anyone who had the privilege of meeting John remembered him as a kind and thoughtful man who always made anyone he was speaking with feel special. He built a very successful property management business on hard work and his ability to build relationships. John and his son Joe introduced John Morris of Morris Sperry into the HOA world. Fresh out of law school, John Morris served on the board of his condominium association that Property Management Systems managed. After getting to know one another, Joe asked John Morris to help him with another association's legal issues. The rest is history as John Morris's practice included more and more HOA work until it become his sole focus. This culminated in the founding of Morris Sperry, the only law firm in Utah focused on HOA law. Joe and John Morris are still friends and still working together to solve problems for HOAs.

John Holland was a good man and he will be missed by his family, his employees, and those in the property management industry. We offer our deepest condolences from the lawyers and staff at Morris Sperry. 

Comments 0   Add new comment
March 31, 2016

 

The Connecticut Supreme Court has heard but not decided a potentially precedent-setting case involving condominiums. A police dog in a condominium building hallway signaled for marijuana outside of the door of a condominium unit. The police then obtained a warrant for the unit and found marijuana plants, growing equipment, firearms, and seeds. A trial court judge dismissed the charges saying the original search in the common area hallway violated the condominium owner's constitutional rights. This decision seems consistent with an earlier United States Supreme Court decision in 2013 holding that police dogs cannot sniff for drugs in areas right outside of a private residence without a warrant. The counter-argument in this case is that the condominium hallways are common area accessible by any owner in the project. 

This case represents an interesting constitutional question and a very practical question for community associations trying to take action to root out suspected crime. This issue could come up anytime there is crime in a condominium, townhome project, homeowners association, or any other type of HOA. The type of crime varies and can include drug dealers, growing operations, prostitution, and theft rings. The neighbors and unit owners frequently expect the association to take some action and association boards and management committees are often motivated to stop the illegal activity.

At Morris Sperry we have dealt with these issues for years and have good advice for association boards when they encounter this problem. These problems have to be handled in a way that complies with the law and puts a stop to the crime in the community.  

Comments 0   Add new comment
January 30, 2016

For the third straight year, more Morris Sperry lawyers attended the largest and most important HOA law seminar in the nation than any other Utah law firm. Five lawyers from Morris Sperry spent four days in seminars on topics such as aging communities, hot HOA topics, amending governing documents, pets in HOAs, plats, and several other community association topics. The law seminar put on by the College of Community Association Lawyers is the best opportunity for serious HOA lawyers to talk about HOA issues and strategies with hundreds of lawyers from around the country focused in this complex area of law. Morris Sperry lawyers attending and presenting at this seminar fine tune cutting edge strategies and ideas for inclusion in new governing documents and implementation throughout their practice. Morris Sperry can invest in this training because they remain the only law firm in Utah focused exclusively on representing associations, owners, and developers in the complex area of community association law (condominiums, HOAs, townhomes, PUDS, and homeowner associations). Who do you want representing your condominium, townhome, or HOA, the "jack of all trades" lawyer who would never invest the time in a seminar like this or the lawyers at Morris Sperry who invest the time and effort to stay on the cutting edge of legal issues impacting your assocaition?

Comments 0   Add new comment
January 14, 2016

John Morris, Quinn Sperry, and Brandon Myers were all selected by their peers as one of Utah Business magazine's 2016 Utah Legal Elite. This select group of lawyers practicing in Utah is chosen by other lawyers. The list of winners is published in a special edition of Utah Business magazine. Legal Elite honorees are selected by their peers in a statewide balloting process. Each year, members of the Utah Bar are invited to participate by submitting a ballot of Utah lawyers they hold in the highest regard - lawyers they have observed firsthand and would recommend to others. Nominators are allowed to cast only one ballot and can not vote for themselves. Morris Sperry lawyers have been selected for this list for years, and this selection is just one measure of the good work and value that Morris Sperry lawyers provide to their clients.

 

 

Comments 0   Add new comment

Pages

January 14, 2016

John Morris, Quinn Sperry, and Brandon Myers were all selected by their peers as one of Utah Business magazine's 2016 Utah Legal Elite. This select group of lawyers practicing in Utah is chosen by other lawyers. The list of winners is published in a special edition of Utah Business magazine. Legal Elite honorees are selected by their peers in a statewide balloting process. Each year, members of the Utah Bar are invited to participate by submitting a ballot of Utah lawyers they hold in the highest regard - lawyers they have observed firsthand and would recommend to others. Nominators are allowed to cast only one ballot and can not vote for themselves. Morris Sperry lawyers have been selected for this list for years, and this selection is just one measure of the good work and value that Morris Sperry lawyers provide to their clients.

 

 

Comments 0   Add new comment
November 24, 2015

A Virginia association recently received an application from an eleven-year-old boy for an open board position. The bylaws and declaration don't have any minimum age requirements. The Association has engaged counsel and is scrambling to figure out if they must accept the application and put the boy on the ballot for the election. The application raises all sorts of interesting issues including whether a child with no capacity to enter into a contract can nonetheless vote on a board and make decisions. Practically, of course, it seems that an association who elects an eleven-year-old to the board deserves what they get! 

This funny example highlights the never-ending questions that can arise in the context of board elections. The Association is taking the right step in seeking legal advice to resolve this issue before an annual meeting and before an election dispute turns into something more serious. Morris Sperry attorneys can turn around these types of questions quickly and efficiently to keep associations on track with their board elections.

Comments 0   Add new comment
November 12, 2015

As Americans, we love our country and those men and women, past and present, who serve and sacrifice for our freedoms. Displaying the Flag of the United States is one way we show our patriotism to honor our nation and the heroes that make this country great.  

Recently, the right to fly our nation’s Flag within homeowners associations (each an “HOA”) has stirred some controversy here in our state. When news broke that an HOA in the Salt Lake Valley wanted to restrict its residents from flying Old Glory, owners of that HOA and many others expressed their outrage. It is likely that no other symbol evokes more emotion and patriotism than the Stars and Stripes. So if you are an owner or resident in an HOA, what are your rights when it comes to flying the American Flag?

When a person purchases a home in an HOA (a condo, townhome, or detached home), that person becomes a member of the HOA and agrees to adhere to the HOA’s particular covenants, conditions, and restrictions (the “CC&Rs”). Courts interpret CC&Rs as legally binding contracts between the owners and the HOA. This is why it’s so important for owners or prospective purchasers to review the HOA’s CC&Rs so they understand the covenants or restrictions that may apply to the use of their property and the HOA’s common property within the HOA’s boundaries. Due to the complex nature of CC&Rs, owners in HOAs sometimes fail to properly understand the restrictions they agree to when purchasing their home or fail to see the many benefits HOA living brings with it.

While some HOA rights are apparent, other rights have been misunderstood. Some people feel that an HOA restricting the location where a Flag is flown is a restriction on freedom of speech and the property rights we as Americans hold so dear. However, this is not always the case.   

A homeowner in an HOA has the absolute legal right to fly the American Flag on property he or she exclusively owns or controls, within certain legal requirements. Both federal and Utah state statutes apply to one’s right to display the American Flag. Section 3 of the Freedom to Display the American Flag Act of 2005 (federal law) states:

“A condominium association, cooperative association, or residential real estate management association may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use.”  

A quick reading of this section may suggest that an HOA may not restrict an owner’s right to display the Flag at all. However, the key issue to focus on in this scenario is the location where an owner is attempting to display the Flag.

If the owner has “exclusive possession or use” of an area then the HOA cannot restrict or prevent Flag displays in that area. The HOA, however, can restrict Flag flying in the common areas. The CC&Rs and plats for each HOA identify those sections of an owner’s dwelling or lot that are owned exclusively by the owner and those areas over which the owner has the exclusive right to use or possess. The HOA’s CC&Rs further identify the common areas of the HOA. In a condominium project, the common areas are owned collectively by all owners and may include areas such as the clubhouse or pool area, landscaping surrounding condos, and building features (siding, roofs, eaves, etc.). In other community association developments (non-condominium projects), the common areas are owned by the HOA itself. Thus, the common areas in HOAs are not owned by any one owner and there is no “separate ownership interest” in the common areas for a particular owner. Moreover, the CC&Rs generally provide that all owners of the HOA have a right to use and enjoy the common areas, which means that no individual owner has the “right to exclusive possession or use” of these common areas. These common areas, therefore, fall outside the scope of section 3 of the Freedom to Display the American Flag Act of 2005, and an HOA may regulate or even prohibit the display of the Flag on its common areas.

Utah law further addresses displaying flags in an HOA. Utah’s Display of Flag Act includes condominium associations within the definition of “residential property management authority”[1] and provides, in part:

A residential property management authority may not prohibit a resident from displaying a Flag:

(a)    consistent with the guidelines in [federal law];

(b)   within an area over which the resident has exclusive control; and

(c)    from a staff, pole, or window.[2]

As explained above, an owner or resident of a condominium association does not have “exclusive control” over common areas within his or her HOA; therefore, a condominium association may restrict or prevent an owner or resident from displaying the Flag in common areas. On the other hand, CC&Rs typically define the interior sides of windows in condominium projects as being under the resident’s “exclusive control”; thus, an HOA could not prohibit the resident from displaying the Flag in a window.

Utah’s Community Association Act[3] – which applies to planned unit developments and community associations other than condominium projects[4] – further addresses the issue of displaying the Flag in a community association. Section 219 of this act states:

  1. An association may not prohibit a lot owner from displaying a United States flag inside a dwelling or limited common area or on a lot, if the display complies with United States Code, Title 4, Chapter 1, The Flag. 
  2. An association may restrict the display of a flag on the common areas.

This law allows the HOA to restrict the display of the Flag in the common areas, which are owned by the HOA and not by any particular owner. Keep in mind, however, that the HOA may not prohibit an owner from displaying the Flag in any area that is not common area, except in limited circumstances

Federal law allows an HOA to adopt “any reasonable restriction pertaining to the time, place, manner of displaying the Flag of the United States necessary to protect a substantial interest of the condominium association, cooperative association, or residential real estate management association.” [5] One example of a valid time, place, and manner restriction could apply to illuminating the Flag for display at night.  “[I]t might be appropriate to restrict large flood lights that illuminate the flag because it disturbs the ability of neighbors to sleep.”[6] An HOA may require that the Flag be properly displayed per the Federal Flag Act. We all hope that someone displaying or using the Flag does so in a manner that is proper and respectful to the Flag but, just in case, an HOA may require that the individual correct his/her actions so that the Flag is properly displayed.

One must keep in mind that even though an HOA has the right to restrict the display of the American Flag on common area, the HOA may take the position that it wants its owners and residents to fly the Flag in the common areas.  An HOA may choose to amend its CC&Rs (in accordance with its particular amendment procedures) and specifically allow owners to display the American Flag in certain common areas. Such an amendment may contain guidelines concerning the location and manner that flag poles or other devices may be installed on the common areas to minimize the potential for future damages (i.e. water penetration through the holes) while still allowing residents to express their patriotism and respecting a person’s right to fly that Star Spangled Banner.

It is important to note that while many view HOAs in a negative light, these people limit their focus and perspective to only certain restrictions imposed by the HOA. It is true that when individuals live in an HOA, they are essentially entering into a contract with their neighbors and, by entering into that contract, the owners may give up some of their rights that may otherwise accompany traditional homeownership (outside of an HOA); however, these individuals in an HOA gain protections and rights too.  Some of the use restrictions that may limit traditional property rights concern: colors used on the exterior of a home, materials and colors used when installing a fence, types of plants or trees an owner may have in his/her yard, smoking tobacco products in or around a dwelling, and the number or type of pets an owner may have, whether an owner may rent their property.  Viewed from another perspective, these restrictions grant owners the right to protect themselves from breathing secondhand smoke and to maintain uniformity in the quality of craftsmanship, landscaping, and level of building and landscaping maintenance all of which preserve property values.  An HOA’s CC&Rs further afford owners the right to elect members of their HOA’s governing board, approve their HOA’s budget, and ratify proposed amendments to their HOA’s CC&Rs. 

In conclusion, living in an HOA does not strip individuals of their Constitutional, federal, and/or state law rights when it comes to issues such as displaying the American Flag.  By living in an HOA, individuals agree to adhere to further statutory and contractual provisions intended to promote the health, safety, and welfare of the community residents, maintain a sense of community, and preserve owners’ property values.

**This article originally appeared on the Utah Chapter of the Community Associations Institute blog on Nov. 11, 2015.


 

[1] Utah Code Ann. § 57-24-101(3).

[2] Utah Code Ann. § 57-24-102(1).

[3] Utah Code Ann. § 57-8a-101 et seq.

[4] Utah Code Ann. § 57-8-1 et seq., applies to condominium projects. 

[5] See Section 4 of the Freedom to Display the American Flag Act of 2005.

[6] See Guidance for Complying with the Freedom to Display the American Flag Act of 2005, Community Associations Institute, available at http://www.caionline.org/govt/news/Pages/GuidanceforComplyingwiththeFreedomtoDisplaytheAmericanFlagActof2005.aspx.

Comments 0   Add new comment
October 21, 2015

In a free webinar put on by Utah CAI, John Morris introduced a new Utah HOA mediation program that he spearheaded and that members of the local CAI chapter have been working on for more than two years. This will be a great opportunity to cost effectively resolve disputes involving HOAs. Associations, board members, homeowners, and vendors in homeowners associations can now take advantage of this program and low cost mediators experienced in HOA matters that the program will offer. This is a great option for resolving disputes before people are forced to spend money on lawyers and lawsuits. Morris Sperry is proud to have guided the development of this program for the benefit of all homeowners and associations in Utah.

 

Comments 0   Add new comment
October 5, 2015

Quinn Sperry of Morris Sperry was interviewed on the news last week about a serious controversy in a Utah HOA. Residents want to fly the American flag and the association board is sending them fines and wants the flags removed. This problem repeats around the country when HOAs take harsh positions on flying the flag inside the community. No symbol evokes more emotion, patriotism, and willingness to fight an HOA than the stars and stripes. Morris Sperry regularly advises both owners in communities and community associations (HOAs, condominiums, townhomes, and homeowners associations) about flying the flag of the United States of America. There is an absolute legal right to fly the American flag from or on certain property owned or under the exclusive use of the homeowner and with certain legal requirements. Working with Morris Sperry and taking advantage of our experience and knowledge with this issue, associations can make and enforce reasonable requirements for flying of the American flag while allowing owners to express their patriotism and while respecting their legal right to fly the flag. More importantly, with the wise counsel of Morris Sperry, associations and owners can avoid the media circus and hostility created by the association that was the subject of this story.

Click HERE to see the story. 

Comments 0   Add new comment
August 18, 2015

In another free speech case, the New Jersey Supreme Court held that rule banning handing out campaign materials in a cooperative violated the state's constitutional guarantee of free speech. This case follows a pattern of cases applying private action on private property to be subject to constitutional protection. The New Jersey Supreme Court applied a cohesive analysis and considered who was seeking to speak, the purpose of the speech, and where it was being prohibited.  The Court addressed the "important right of residents to speak about the governance of their community" in light of the board's concerns. Importantly, the Court also described how the board had an exception to the rule for its materials, and utilized that exception to criticize opponents and tout the board's accomplishments. One wonders if the case would have been decided differently if the Board had rule against handouts that applied to everyone.  

Morris Sperry remains on the cutting edge of these issues offering solid legal advice and state of the art new documents that address these and many other evolving issues in community association law. Morris Sperry HOA attorneys offer this good legal advice to developers in the formation of community associations, boards and management committees in the governance of associations, and owners who are concerned about the operation of their associations. 

Comments 0   Add new comment
July 31, 2015

In what appears to be the largest HOA assessment collections judgment ever obtained in Utah, and perhaps the largest in the United States, the Morris Sperry law firm obtained a judgment for unpaid unit owner assessments on behalf of a client association in Park City, Utah, for nearly 1.4 million dollars. Morris Sperry also promptly obtained payment in full for the judgment. The largest unit owner in a Park City condominium hotel refused to pay assessments as part of a series of disputes and lawsuits. The judgment was for over a million dollars in assessments and over three hundred thousand dollars in interest. At the request of the Morris Sperry HOA law office, the court ordered that interest accrue on the judgment at thousands of dollars a month and awarded the association its attorney fees. 

Morris Sperry's litigation and assessment collection team routinely collects much smaller amounts on behalf of condominum and homeowner associations, but they are also capable of successfully prosecuting the most complex collection matters. Regardless of whether you have a routine collection matter or a collection matter involving bankruptcy, foreclosure, counterclaims, or millions of dollars; Morris Sperry is the team you want working for your community association collecting unpaid dues and assessments.   

Comments 0   Add new comment
May 27, 2015

A Tennessee HOA has agreed to pay $156,000 to settle a lawsuit against the association alleging violations of the Fair Housing Act. The Association refused to grant permission to an owner to build a therapeutic space for two children with Down syndrome. The Association failed to grant the reasonable accommodation, in this instance a reasonable modification, to create the space. After years of effort to obtain approval and multile denials, the family finally move out of the neighborhood and sold their home at a loss. 

The Fair Housing Act is a field of landmines for a homeowners association, condominium, or townhome community. It is critical that the association engage competent legal counsel when anyone asks for an "accommodation" related to a disability. The failure to handle these requests properly or to grant some requests can result in serious fines, penalties, and awards of attorney fees against the association. Morris Sperry has worked on dozens of Fair Housing Act matters and fully understands how to navigate the process of receiving, analyzing, and responding to a request for an accommodation.

Comments 0   Add new comment
April 26, 2015

A Florida condominium president paid himself hundreds of thousands of dollars for "managing" the condominium and purchased a car with association funds that he used. He was criminally charged for managing without a license and as part of his plea deal, he agreed to resign from the board, do 25 hours community services, serve three months' probation, return the car, and write a letter admitting wrongdoing. The association has also filed a civil suit to recover the money he paid to himself.

Association boards should always be wary of hiring board members and their relatives to provide any services to the association and should carefully abide by conflict of interest procedures if they consider those relationships. Moreover, associations need to make sure multi-member boards are functioning properly to provide the oversight needed to manage conflict of interest transactions.

Unfortunately, Utah has no requirements for licensing or regulation of condo or HOA managers. Morris Sperry lawyers are part of a committee working hard on a new law that would provide at least a minimal amount of regulation over HOA managers in Utah. If passed, the new law would require managers to have a certain level of industry training, a minimum level of insurance, and require registration with the state. Unfortunately, this law has been stalled in the legislature for the last two years. Morris Sperry remains hopeful that this manager registration act can be passed so that situations like that in Florida are less likely to happen in Utah. 

Comments 0   Add new comment
April 8, 2015

Governor Herbert signed the ceremonial copy of H.B. 98 today at the Capitol. John Morris of Morris Sperry, members of the apartment association, and the sponsor Representative Gage Froerer attended. John Morris appeared representing the Utah CAI Legislative Action Committee, members of whom worked on this bill. This new HOA law in Utah further defines the relationship between landlords in condominium associations and community associations. It also adds needed clarity to the law applicable to HOA fines and warning letters. John Morris and the other members of the Utah CAI LAC worked hard on this bill and it represents a good compromise between all of the interests involved.

Comments 0   Add new comment

Pages

March 6, 2015

HB 304 passed through the Utah Senate Transportation and Public Utilities and Technology Committee and was placed on the Senate consent calendar yesterday. The odds of this bill passing just went up significantly. Community Associations could soon have a tool that allows them to get notice from utility companies before power and natural gas are shut off by the utility company for lack of payment. The board or management committee will have a chance to either enter the unit and winterize the unit or pay the bill and keep the utilities on. The Utah Legislative Action Committee of the Utah chapter of the Community Association Institute worked on and proposed this bill to help reduce damage from freezing pipes and flooding in community associations. Hopefully, this will turn into a valuable tool for Utah condominium associations and PUDs. 

Comments 0   Add new comment
February 26, 2015

Senate Bill 80 passed the Utah Senate yesterday and will now start its journey through the House of Representatives. SB 80, entitled "Homeowners' Association Reserve Fund" will require developers during the period of administrative control (the time developers control a new project) to provide a copy of the HOA governing documents and the most recent financials for the association in any sale of a unit or home in the community.

Comments 0   Add new comment
February 26, 2015

Senate Bill 218 has passed out of committee in the Utah Senate and is now moving forward on the floor of the senate. This bill would make several changes to the Revised Nonprofit Corporation Act. Those HOAs that are incorporated, which 95% are, will be subject to the changes in all sorts of areas. Among other things, the new HOA law would: (1) clarify that notice and member participation by text, email, and other electronic means is acceptable in more circumstances, (2) eliminate the ability to use written ballots in a meeting if those ballots were solicited as part of an effort to take action without a meeting, (3) clarify that a proxy may be sent by text, email, or other means of electronic communication, (4) clarifying the right of board members to approve of board actions by text and email, (5) limit the authority of committees, (6) clarify that other types of notice may be permitted for meetings of the members and board, (7) clarifies the conflict of interest section application to relatives of board members, and (8) clarifies the contents of articles of restatement. 

If this bill passes, HOAs will need to update their procedures and practices applicable to daily decision making by board members and for member meetings and action. Morris Sperry will continue to monitor this bill and will be ready to provide any association with a complete overview of the changes if this new law passes.

Comments 0   Add new comment
February 25, 2015

SB 118 was amended and substituted today to include an after-the-fact change to HB 99, the HOA open meetings bill that recently passed both houses of the Utah Legislature and is waiting for the governor's signature. If the governor signs it, HB 99 will require HOAs to have most board meetings and management committee meetings open to all owners and will require notice of most of those meetings to owners who request notice. Consistent with the desires of the Utah Senate, a provision was added to SB 118 that will modify the new HOA open meeting law to provide for a notice, right to cure, and cause of action for an owner against an HOA that refuses to comply with the open meeting laws. This cause of action will allow an owner to recover a $500 minimium damage amount, an order that the association comply, and attorney fees if an HOA ignores the new open meeting requirements after a warning from the owner. As one of the draftsman of both the original HB 99 open meeting bill and of the changes required by the Senate, John Morris and the Morris Sperry team of lawyers are ready to advise HOAs in Utah (condominiums, townhomes, homeowners associations) on what they need to do to comply with this new law and all HOA laws. As a frequent advocate of owner rights, the Morris Sperry attorneys also remain willing to assist owners with enforcing their rights under this law and any other.  

Comments 0   Add new comment
February 25, 2015

HOA bill HB 304 passed out of the House Public Utilities and Technology Committee yesterday and is off to the floor of the Senate. As explained in an earlier news article on this site, this law would allow community associations to get advance notice when utilities will be turned off so that Associations can try to avoid freezing pipes and all the damage they cause in community associations. Representative Dixon Pitcher (Representative Pitcher's Website) of the Utah House of Representatives is sponsoring this bill. Representative Pitcher has been a great supporter of fair and balanced HOA laws and his constuents in District 10 should be pleased by his efforts. 

Comments 0   Add new comment
February 24, 2015

John Morris of Morris Sperry testified in favor of Senate Bill 118 (SB 118) today in the House Business and Labor Committee with Senator Todd Weiler. (Senator Weiler's Website)  Senator Weiler graciously allowed his original senate bill to be expanded to provide more help for Community Associations trying to amend governing documents (declaration, bylaws, articles of incorporation). SB 118 will limit the restrictions on amending governing documents so that no more than 67% of the owners and mortgage holders are required to approve an amendment. It also fixes a couple of other limitations that exist in some documents, including in Senator Weiler's district. Morris Sperry commends the Utah legislature and Senator Todd Weiler for their serious consideration of the issues facing community associations and their willingness to help solve those problems. Owners and board members in Condominiums, Townhomes, and Homeowners Associations in Senator Weiler's district are well served by his Utah legislative efforts and for his balanced and practical approach to HOA legal issues.

Comments 0   Add new comment
February 15, 2015

Community Associations with units that share walls (condominiums and townhomes) frequently run into problems when an owner fails to pay utility bills and allows the heat to be shut off in the middle of the winter.  The pipes sometimes freeze and burst causing damage in that unit and others nearby.

House Bill (HB) 304 is an attempt to help solve that problem. In short, it would allow HOAs to give notice to the power and gas company and require them to: (1) give notice to the association if they intend to shut off power or gas to a unit, and (2) allow the association to pay the bill if it wants to keep the heat on.  It also clarifies the right of the association to enter any unit for the purpose of winterizing the unit if the association receives notice that the power or gas are going to be shutoff and the the association elects not to pay the bills. To read the bill, click HERE.

This bill is another effort by the Utah CAI Legislative Action Committee with the help of Represenative Dixon Pitcher. Morris Sperry remains heavily involved in this committee and with supporting both the Utah Legislative Action Committee and the Community Association Institute generally. 

Comments 0   Add new comment
February 11, 2015

John Morris appeared and testified again before the Senate Business and Labor committee regarding House Bill 98 (HB 98) (HB0098S01), substituted Senate Bill 118 (SB 118) (SB0118S01), and substituted Senate Bill 80 (SB 80) (SB0080S01). All three bills passed out of committee today and are headed to the floor of the Senate. HB 98 is the compilation bill that will clarify and update the requirements for HOA fines in Utah. It will also have a big impact on an association's rights related to rental units in the association and the association's right to impose rental restrictions through amendments to the governing documents. Charges that an Association might impose on rental units just because they are rental units will be a thing of the past as will other blatently descriminatory practices against rental units in associations. SB 118 addresses restrictive provisions in governing documents that make it overly difficult to amend those documents. It will void requirements that 100% of the owners approve amendments in older condominiums, 100% requirements for mortgagee approvals for amendments, and any requirement that a particular owner approve an amendment. If it passes, SB 80 will require certain disclosures at the time of sale of a unit or home in a community association if the association is in the developer control period. This will help provide more information to purchasers about hoa reserve accounts as well as other association financial information.  

Comments 0   Add new comment
February 8, 2015

John Morris testified before the Senate Business and Labor committee last week regarding new HOA laws in Utah. HB 99 will require condominium, townhome, HOA, PUD, and homeowner associtaions to all open their board of directors', management committee', or board of trustees' meetings to owners. John Morris answered questions about the law and addressed concerns of Senators that the law does not go far enough in protecting the rights of owners to attend board member meetings. John explained that the law is a first step and that the industry does not want to create to much of a burden on managers or associations, while nonetheless preserving the right of an owenr to attend board meetings. John continues his work on good laws in Utah on the Community Association Insitute (CAI) Utah Legislative Action committee. House Bill 99 is sponsored by representative Mike Shultz in District 12. HB 99 originated in the local Utah Chapter and was the product of almost three years of discussion among managers, owners in HOAs, board members, HOA attorneys, and other industry vendors and participants.   

Comments 0   Add new comment
February 4, 2015

House Bill 98 (HB 98) just passed the house and has been refered to the Utah Senate for Consideration.  HB 98 contains some compromise legislation on landlord/HOA issues and also contains a substantial revision to the HOA fine laws for both condominiums and for homeowners associations governed by the Community Association Act. These provisions allow commercial condominium associations to assess fines for the first time in Utah. Morris Sperry will be ready to help with updates to Rules and CC&Rs to facilitate this new opportunity. The new fine changes also clarify continuing verses repeated violations, the content of warning and fine letters, the procedures related to the issuance of fines and warnings, and the right of board members and owners to attend fine hearings remotely. These fine changes are good for associations and owners. Morris Sperry attorney John Morris is proud to be part of the Utah CAI Legislative Action Committee that worked on this bill and to be one of the primary drafters of the fine law changes in this bill. Morris Sperry remains committed to this volunteer effort and to keeping at the forefront of changes in community association law so that their HOA, townhome, homeowners association, condominium, and PUD clients receive legal advice that is timely and accurate.     

Comments 0   Add new comment

Pages

October 28, 2017

Quinn Sperry of Morris Sperry was elected by his industry peers as the President-Elect of the Utah Chapter of the Community Association Institute. His service as President will start in one year. This continues Quinn's long standing service in the local Utah Chapter of CAI and his dedication to making HOAs better in Utah. Quinn has served as the Chair and a long standing member of the Communications Committee of the local chapter in Utah and is widely recognized in the industry for his work on bringing the local newsletter to Utah Board Members and Owners.

Comments 0   Add new comment
August 31, 2017

 

Quinn Sperry was elected by his peers to serve as the Treasurer of the Community Association Law Section of the Utah State Bar for the 2017 through 2018 year. He was elected at the 2017 annual meeting of the section. This further demonstrates Morris Sperry's commitment to service. Quinn served on a committee of the section since 2016 and will continue to support the section that was Morris Sperry's idea and that Morris Sperry applied to create with the Utah State Bar in 2015. Quinn is looking forward to helping the section fulfil its mission and goals.

Comments 0   Add new comment
May 31, 2017

 

In what is almost certainly the largest wrongful lien verdict in Utah and perhaps the largest in the United States, Morris Sperry lawyers obtained a $15,110,000 wrongful lien judgment (pursuant to the Utah Wrongful Lien Act beginning at Utah Code Ann. Section 38-9-101) for their clients after a week-long trial. The judgment out of the Fourth District Court includes over fourteen million dollars in wrongful lien statutory damages and over half a million dollars in attorney fees. The trial judgment included both an award of $3,000 per interest holder under Utah Code Ann. Section 38-9-203(1) and an award of $10,000 per interest holder under Utah Code Ann. Section 38-9-203(2). The judgment was obtained for three association clients, Cold Springs, Rock Creek, and Willow Springs in the Ranches at Eagle Mountain. In addition to the massive verdict, Morris Sperry obtained an order of quiet title eliminating forever any obligation of the owners in Morris Sperry's client associations to pay assessments to the Ranches master association and clearing the title to their homes of any CC&Rs, declarations, bylaws, notices of liens, and other documents previously recorded by the Ranches.

It started when Morris Sperry was retained to review some irregularities in the amendment procedures used by the Ranches master association. Morris Sperry lawyers figured out that the Ranches documents had serious legal defects and could potentially be invalidated, freeing Morris Sperry's clients from any obligations of the master association and eliminating over ten thousand dollars a month in assessments being paid by the owners in Morris Sperry's client associations. Based on the detailed and extensive analysis of the legal issues prepared by Morris Sperry, their clients were confident going forward with an extraordinary challenge to the Ranches authority even though the master association had operated for more than ten years. When the Ranches refused to release its documents, Morris Sperry filed and prosecuted a lawsuit that involved complicated legal and equitable issues.The Morris Sperry attorneys' unparallelled understanding of HOA law and extensive complex litigation experience allowed their clients to achieve this amazing trial result and huge verdict. When you have an HOA legal problem and you really want the right answer, this case is just one more example of why Morris Sperry is the only choice in Utah.

Comments 0   Add new comment
September 20, 2016

 

John Morris of Morris Sperry took time out of his busy schedule to visit Ms. Peck's class at McMillan elementary school to talk about the judicial system and put on a mock trial in which the students participated. With a prosecutor, judge, jury, defense lawyer, and multiple witnesses, the children all played their parts and had a great time. Morris Sperry lawyers are always looking for a way to participate in the community.

 

Comments 0   Add new comment
May 23, 2016

John Holland, the founder of Property Management Systems Inc., passed away May 17, 2016. Anyone who had the privilege of meeting John remembered him as a kind and thoughtful man who always made anyone he was speaking with feel special. He built a very successful property management business on hard work and his ability to build relationships. John and his son Joe introduced John Morris of Morris Sperry into the HOA world. Fresh out of law school, John Morris served on the board of his condominium association that Property Management Systems managed. After getting to know one another, Joe asked John Morris to help him with another association's legal issues. The rest is history as John Morris's practice included more and more HOA work until it become his sole focus. This culminated in the founding of Morris Sperry, the only law firm in Utah focused on HOA law. Joe and John Morris are still friends and still working together to solve problems for HOAs.

John Holland was a good man and he will be missed by his family, his employees, and those in the property management industry. We offer our deepest condolences from the lawyers and staff at Morris Sperry. 

Comments 0   Add new comment
January 30, 2016

For the third straight year, more Morris Sperry lawyers attended the largest and most important HOA law seminar in the nation than any other Utah law firm. Five lawyers from Morris Sperry spent four days in seminars on topics such as aging communities, hot HOA topics, amending governing documents, pets in HOAs, plats, and several other community association topics. The law seminar put on by the College of Community Association Lawyers is the best opportunity for serious HOA lawyers to talk about HOA issues and strategies with hundreds of lawyers from around the country focused in this complex area of law. Morris Sperry lawyers attending and presenting at this seminar fine tune cutting edge strategies and ideas for inclusion in new governing documents and implementation throughout their practice. Morris Sperry can invest in this training because they remain the only law firm in Utah focused exclusively on representing associations, owners, and developers in the complex area of community association law (condominiums, HOAs, townhomes, PUDS, and homeowner associations). Who do you want representing your condominium, townhome, or HOA, the "jack of all trades" lawyer who would never invest the time in a seminar like this or the lawyers at Morris Sperry who invest the time and effort to stay on the cutting edge of legal issues impacting your assocaition?

Comments 0   Add new comment
January 14, 2016

John Morris, Quinn Sperry, and Brandon Myers were all selected by their peers as one of Utah Business magazine's 2016 Utah Legal Elite. This select group of lawyers practicing in Utah is chosen by other lawyers. The list of winners is published in a special edition of Utah Business magazine. Legal Elite honorees are selected by their peers in a statewide balloting process. Each year, members of the Utah Bar are invited to participate by submitting a ballot of Utah lawyers they hold in the highest regard - lawyers they have observed firsthand and would recommend to others. Nominators are allowed to cast only one ballot and can not vote for themselves. Morris Sperry lawyers have been selected for this list for years, and this selection is just one measure of the good work and value that Morris Sperry lawyers provide to their clients.

 

 

Comments 0   Add new comment
November 12, 2015

As Americans, we love our country and those men and women, past and present, who serve and sacrifice for our freedoms. Displaying the Flag of the United States is one way we show our patriotism to honor our nation and the heroes that make this country great.  

Recently, the right to fly our nation’s Flag within homeowners associations (each an “HOA”) has stirred some controversy here in our state. When news broke that an HOA in the Salt Lake Valley wanted to restrict its residents from flying Old Glory, owners of that HOA and many others expressed their outrage. It is likely that no other symbol evokes more emotion and patriotism than the Stars and Stripes. So if you are an owner or resident in an HOA, what are your rights when it comes to flying the American Flag?

When a person purchases a home in an HOA (a condo, townhome, or detached home), that person becomes a member of the HOA and agrees to adhere to the HOA’s particular covenants, conditions, and restrictions (the “CC&Rs”). Courts interpret CC&Rs as legally binding contracts between the owners and the HOA. This is why it’s so important for owners or prospective purchasers to review the HOA’s CC&Rs so they understand the covenants or restrictions that may apply to the use of their property and the HOA’s common property within the HOA’s boundaries. Due to the complex nature of CC&Rs, owners in HOAs sometimes fail to properly understand the restrictions they agree to when purchasing their home or fail to see the many benefits HOA living brings with it.

While some HOA rights are apparent, other rights have been misunderstood. Some people feel that an HOA restricting the location where a Flag is flown is a restriction on freedom of speech and the property rights we as Americans hold so dear. However, this is not always the case.   

A homeowner in an HOA has the absolute legal right to fly the American Flag on property he or she exclusively owns or controls, within certain legal requirements. Both federal and Utah state statutes apply to one’s right to display the American Flag. Section 3 of the Freedom to Display the American Flag Act of 2005 (federal law) states:

“A condominium association, cooperative association, or residential real estate management association may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use.”  

A quick reading of this section may suggest that an HOA may not restrict an owner’s right to display the Flag at all. However, the key issue to focus on in this scenario is the location where an owner is attempting to display the Flag.

If the owner has “exclusive possession or use” of an area then the HOA cannot restrict or prevent Flag displays in that area. The HOA, however, can restrict Flag flying in the common areas. The CC&Rs and plats for each HOA identify those sections of an owner’s dwelling or lot that are owned exclusively by the owner and those areas over which the owner has the exclusive right to use or possess. The HOA’s CC&Rs further identify the common areas of the HOA. In a condominium project, the common areas are owned collectively by all owners and may include areas such as the clubhouse or pool area, landscaping surrounding condos, and building features (siding, roofs, eaves, etc.). In other community association developments (non-condominium projects), the common areas are owned by the HOA itself. Thus, the common areas in HOAs are not owned by any one owner and there is no “separate ownership interest” in the common areas for a particular owner. Moreover, the CC&Rs generally provide that all owners of the HOA have a right to use and enjoy the common areas, which means that no individual owner has the “right to exclusive possession or use” of these common areas. These common areas, therefore, fall outside the scope of section 3 of the Freedom to Display the American Flag Act of 2005, and an HOA may regulate or even prohibit the display of the Flag on its common areas.

Utah law further addresses displaying flags in an HOA. Utah’s Display of Flag Act includes condominium associations within the definition of “residential property management authority”[1] and provides, in part:

A residential property management authority may not prohibit a resident from displaying a Flag:

(a)    consistent with the guidelines in [federal law];

(b)   within an area over which the resident has exclusive control; and

(c)    from a staff, pole, or window.[2]

As explained above, an owner or resident of a condominium association does not have “exclusive control” over common areas within his or her HOA; therefore, a condominium association may restrict or prevent an owner or resident from displaying the Flag in common areas. On the other hand, CC&Rs typically define the interior sides of windows in condominium projects as being under the resident’s “exclusive control”; thus, an HOA could not prohibit the resident from displaying the Flag in a window.

Utah’s Community Association Act[3] – which applies to planned unit developments and community associations other than condominium projects[4] – further addresses the issue of displaying the Flag in a community association. Section 219 of this act states:

  1. An association may not prohibit a lot owner from displaying a United States flag inside a dwelling or limited common area or on a lot, if the display complies with United States Code, Title 4, Chapter 1, The Flag. 
  2. An association may restrict the display of a flag on the common areas.

This law allows the HOA to restrict the display of the Flag in the common areas, which are owned by the HOA and not by any particular owner. Keep in mind, however, that the HOA may not prohibit an owner from displaying the Flag in any area that is not common area, except in limited circumstances

Federal law allows an HOA to adopt “any reasonable restriction pertaining to the time, place, manner of displaying the Flag of the United States necessary to protect a substantial interest of the condominium association, cooperative association, or residential real estate management association.” [5] One example of a valid time, place, and manner restriction could apply to illuminating the Flag for display at night.  “[I]t might be appropriate to restrict large flood lights that illuminate the flag because it disturbs the ability of neighbors to sleep.”[6] An HOA may require that the Flag be properly displayed per the Federal Flag Act. We all hope that someone displaying or using the Flag does so in a manner that is proper and respectful to the Flag but, just in case, an HOA may require that the individual correct his/her actions so that the Flag is properly displayed.

One must keep in mind that even though an HOA has the right to restrict the display of the American Flag on common area, the HOA may take the position that it wants its owners and residents to fly the Flag in the common areas.  An HOA may choose to amend its CC&Rs (in accordance with its particular amendment procedures) and specifically allow owners to display the American Flag in certain common areas. Such an amendment may contain guidelines concerning the location and manner that flag poles or other devices may be installed on the common areas to minimize the potential for future damages (i.e. water penetration through the holes) while still allowing residents to express their patriotism and respecting a person’s right to fly that Star Spangled Banner.

It is important to note that while many view HOAs in a negative light, these people limit their focus and perspective to only certain restrictions imposed by the HOA. It is true that when individuals live in an HOA, they are essentially entering into a contract with their neighbors and, by entering into that contract, the owners may give up some of their rights that may otherwise accompany traditional homeownership (outside of an HOA); however, these individuals in an HOA gain protections and rights too.  Some of the use restrictions that may limit traditional property rights concern: colors used on the exterior of a home, materials and colors used when installing a fence, types of plants or trees an owner may have in his/her yard, smoking tobacco products in or around a dwelling, and the number or type of pets an owner may have, whether an owner may rent their property.  Viewed from another perspective, these restrictions grant owners the right to protect themselves from breathing secondhand smoke and to maintain uniformity in the quality of craftsmanship, landscaping, and level of building and landscaping maintenance all of which preserve property values.  An HOA’s CC&Rs further afford owners the right to elect members of their HOA’s governing board, approve their HOA’s budget, and ratify proposed amendments to their HOA’s CC&Rs. 

In conclusion, living in an HOA does not strip individuals of their Constitutional, federal, and/or state law rights when it comes to issues such as displaying the American Flag.  By living in an HOA, individuals agree to adhere to further statutory and contractual provisions intended to promote the health, safety, and welfare of the community residents, maintain a sense of community, and preserve owners’ property values.

**This article originally appeared on the Utah Chapter of the Community Associations Institute blog on Nov. 11, 2015.


 

[1] Utah Code Ann. § 57-24-101(3).

[2] Utah Code Ann. § 57-24-102(1).

[3] Utah Code Ann. § 57-8a-101 et seq.

[4] Utah Code Ann. § 57-8-1 et seq., applies to condominium projects. 

[5] See Section 4 of the Freedom to Display the American Flag Act of 2005.

[6] See Guidance for Complying with the Freedom to Display the American Flag Act of 2005, Community Associations Institute, available at http://www.caionline.org/govt/news/Pages/GuidanceforComplyingwiththeFreedomtoDisplaytheAmericanFlagActof2005.aspx.

Comments 0   Add new comment
October 29, 2015

Amy Binns-Shewan has joined Morris Sperry as an associate attorney. Amy excelled in law school, graduating in the top of her class. She graduated with honors and was invited to join the Order of the Coif. She served on the Utah Law Review and received several distinctions for excellent performance in law school. Amy is excited to focus on community association law and is looking forward to immersing herself in this complicated area of law. Amy contributes to the depth of excellent lawyers at Morris Sperry, allowing the firm to get work done (and done well) for our clients. Morris Sperry is excited to add excellent lawyers like Amy and will continue to grow and add lawyers as necessary to provide excellent and timely legal services to Utah condominiums, HOAs, homeowner associations, and community associations.  

Comments 0   Add new comment
October 21, 2015

In a free webinar put on by Utah CAI, John Morris introduced a new Utah HOA mediation program that he spearheaded and that members of the local CAI chapter have been working on for more than two years. This will be a great opportunity to cost effectively resolve disputes involving HOAs. Associations, board members, homeowners, and vendors in homeowners associations can now take advantage of this program and low cost mediators experienced in HOA matters that the program will offer. This is a great option for resolving disputes before people are forced to spend money on lawyers and lawsuits. Morris Sperry is proud to have guided the development of this program for the benefit of all homeowners and associations in Utah.

 

Comments 0   Add new comment

Pages

August 31, 2017

 

On August 31, 2017, John Morris teamed up with Matt Liapis, a GIS expert, to discuss GIS and digital mapping technology and how it can be used in litigation. Specifically, John explained how this technology was used by Morris Sperry in obtaining a fifteen million dollar judgment. GIS presents a new opportunity for visualizing and analyzing property ownership on a massive scale and in a way that simplifies and quantifies a tremendous amount of data in simple to see and understand maps. Mat Liapis testified as a GIS expert in the trial and was able to effectively and efficiently demonstrate on digital maps the ownership of thousands of parcels of property at several different time periods. He was further able to visualize and quantify hundreds of lots upon which certain documents had been recorded. Using alternative methods of quantifying and presenting this data such as through traditional title searches and reports would have cost hundreds of thousands of dollars. In contrast, the GIS analysis and mapping was more persuasive, easily understood, and cost a small faction of that amount. Morris Sperry uses cutting edge technology in litigation and trial both to increase the persuasiveness of their arguments and to keep costs down. 

 

Comments 0   Add new comment
May 31, 2017

 

In what is almost certainly the largest wrongful lien verdict in Utah and perhaps the largest in the United States, Morris Sperry lawyers obtained a $15,110,000 wrongful lien judgment (pursuant to the Utah Wrongful Lien Act beginning at Utah Code Ann. Section 38-9-101) for their clients after a week-long trial. The judgment out of the Fourth District Court includes over fourteen million dollars in wrongful lien statutory damages and over half a million dollars in attorney fees. The trial judgment included both an award of $3,000 per interest holder under Utah Code Ann. Section 38-9-203(1) and an award of $10,000 per interest holder under Utah Code Ann. Section 38-9-203(2). The judgment was obtained for three association clients, Cold Springs, Rock Creek, and Willow Springs in the Ranches at Eagle Mountain. In addition to the massive verdict, Morris Sperry obtained an order of quiet title eliminating forever any obligation of the owners in Morris Sperry's client associations to pay assessments to the Ranches master association and clearing the title to their homes of any CC&Rs, declarations, bylaws, notices of liens, and other documents previously recorded by the Ranches.

It started when Morris Sperry was retained to review some irregularities in the amendment procedures used by the Ranches master association. Morris Sperry lawyers figured out that the Ranches documents had serious legal defects and could potentially be invalidated, freeing Morris Sperry's clients from any obligations of the master association and eliminating over ten thousand dollars a month in assessments being paid by the owners in Morris Sperry's client associations. Based on the detailed and extensive analysis of the legal issues prepared by Morris Sperry, their clients were confident going forward with an extraordinary challenge to the Ranches authority even though the master association had operated for more than ten years. When the Ranches refused to release its documents, Morris Sperry filed and prosecuted a lawsuit that involved complicated legal and equitable issues.The Morris Sperry attorneys' unparallelled understanding of HOA law and extensive complex litigation experience allowed their clients to achieve this amazing trial result and huge verdict. When you have an HOA legal problem and you really want the right answer, this case is just one more example of why Morris Sperry is the only choice in Utah.

Comments 0   Add new comment
January 17, 2017

 

For the fourth straight year, more Morris Sperry lawyers attended the largest and most important HOA law seminar in the nation than any other Utah law firm. Six lawyers from Morris Sperry spent four days in seminars on topics such as drones, hot HOA topics, amending governing documents, pets in HOAs, fiduciary duties, and several other community association topics. The law seminar put on by the College of Community Association Lawyers is the best opportunity for serious HOA lawyers to talk about HOA issues and strategies with hundreds of lawyers from around the country focused in this complex area of law. Morris Sperry lawyers attending and presenting at this seminar fine tune cutting edge strategies and ideas for inclusion in new governing documents and implementation throughout their practice. Morris Sperry invests in this training because they remain the only law firm in Utah focused exclusively on representing associations, owners, and developers in the complex area of community association law (condominiums, HOAs, townhomes, PUDS, and homeowner associations). Who do you want representing your condominium, townhome, or HOA, the lawyer who spends part of their time on HOA law or the lawyers at Morris Sperry who invest the time and effort to stay on the cutting edge of legal issues in the complex area of community association law?

Comments 0   Add new comment
May 24, 2016

While we generally trust in the integrity of owners, managers, and board members counting votes by owners at HOA board elections, that trust must have limits in the form of good controls. Investigations into condominium election fraud in Florida highlight the problem.  In one case, 115% of the owners voted in the annual election! In another, multiple people have confirmed that ballots submitted on their behalf were entirely fraudulent and do not contain their signature. The goal of this fraud is different in different community associations. Sometimes it is a misguided but innocent effort on the part of board members to keep election costs down. Other times it is an effort by entrenched board members to remain in power.  Even worse, sometimes it is part of a concerted effort to rob the assocaition of funds starting with the people on the board remaining in control and sometimes with the collusion of the manager. Hundreds of other complaints of election fraud were submitted in Florida in the last few years.   

It would be delusional to think this type of association electrion fraud never occurs in Utah, even if it is rare. Morris Sperry can help implement processes on behalf of associations and owners to minimize this risk when owners are concerned about election fraud or to proactively prevent any concerns. We have successfully participated in several hotly contested elections and implemented mutually agreeable procedures for collecting and counting ballots. These procedures gave everyone confidence in the results. Morris Sperry has the experience to advise associations and owners about elections, voting, counting procedures, and safeguards to ensure the integrity of the voting process.  

Comments 0   Add new comment
May 23, 2016

John Holland, the founder of Property Management Systems Inc., passed away May 17, 2016. Anyone who had the privilege of meeting John remembered him as a kind and thoughtful man who always made anyone he was speaking with feel special. He built a very successful property management business on hard work and his ability to build relationships. John and his son Joe introduced John Morris of Morris Sperry into the HOA world. Fresh out of law school, John Morris served on the board of his condominium association that Property Management Systems managed. After getting to know one another, Joe asked John Morris to help him with another association's legal issues. The rest is history as John Morris's practice included more and more HOA work until it become his sole focus. This culminated in the founding of Morris Sperry, the only law firm in Utah focused on HOA law. Joe and John Morris are still friends and still working together to solve problems for HOAs.

John Holland was a good man and he will be missed by his family, his employees, and those in the property management industry. We offer our deepest condolences from the lawyers and staff at Morris Sperry. 

Comments 0   Add new comment
March 31, 2016

 

The Connecticut Supreme Court has heard but not decided a potentially precedent-setting case involving condominiums. A police dog in a condominium building hallway signaled for marijuana outside of the door of a condominium unit. The police then obtained a warrant for the unit and found marijuana plants, growing equipment, firearms, and seeds. A trial court judge dismissed the charges saying the original search in the common area hallway violated the condominium owner's constitutional rights. This decision seems consistent with an earlier United States Supreme Court decision in 2013 holding that police dogs cannot sniff for drugs in areas right outside of a private residence without a warrant. The counter-argument in this case is that the condominium hallways are common area accessible by any owner in the project. 

This case represents an interesting constitutional question and a very practical question for community associations trying to take action to root out suspected crime. This issue could come up anytime there is crime in a condominium, townhome project, homeowners association, or any other type of HOA. The type of crime varies and can include drug dealers, growing operations, prostitution, and theft rings. The neighbors and unit owners frequently expect the association to take some action and association boards and management committees are often motivated to stop the illegal activity.

At Morris Sperry we have dealt with these issues for years and have good advice for association boards when they encounter this problem. These problems have to be handled in a way that complies with the law and puts a stop to the crime in the community.  

Comments 0   Add new comment
January 30, 2016

For the third straight year, more Morris Sperry lawyers attended the largest and most important HOA law seminar in the nation than any other Utah law firm. Five lawyers from Morris Sperry spent four days in seminars on topics such as aging communities, hot HOA topics, amending governing documents, pets in HOAs, plats, and several other community association topics. The law seminar put on by the College of Community Association Lawyers is the best opportunity for serious HOA lawyers to talk about HOA issues and strategies with hundreds of lawyers from around the country focused in this complex area of law. Morris Sperry lawyers attending and presenting at this seminar fine tune cutting edge strategies and ideas for inclusion in new governing documents and implementation throughout their practice. Morris Sperry can invest in this training because they remain the only law firm in Utah focused exclusively on representing associations, owners, and developers in the complex area of community association law (condominiums, HOAs, townhomes, PUDS, and homeowner associations). Who do you want representing your condominium, townhome, or HOA, the "jack of all trades" lawyer who would never invest the time in a seminar like this or the lawyers at Morris Sperry who invest the time and effort to stay on the cutting edge of legal issues impacting your assocaition?

Comments 0   Add new comment
January 14, 2016

John Morris, Quinn Sperry, and Brandon Myers were all selected by their peers as one of Utah Business magazine's 2016 Utah Legal Elite. This select group of lawyers practicing in Utah is chosen by other lawyers. The list of winners is published in a special edition of Utah Business magazine. Legal Elite honorees are selected by their peers in a statewide balloting process. Each year, members of the Utah Bar are invited to participate by submitting a ballot of Utah lawyers they hold in the highest regard - lawyers they have observed firsthand and would recommend to others. Nominators are allowed to cast only one ballot and can not vote for themselves. Morris Sperry lawyers have been selected for this list for years, and this selection is just one measure of the good work and value that Morris Sperry lawyers provide to their clients.

 

 

Comments 0   Add new comment
November 24, 2015

A Virginia association recently received an application from an eleven-year-old boy for an open board position. The bylaws and declaration don't have any minimum age requirements. The Association has engaged counsel and is scrambling to figure out if they must accept the application and put the boy on the ballot for the election. The application raises all sorts of interesting issues including whether a child with no capacity to enter into a contract can nonetheless vote on a board and make decisions. Practically, of course, it seems that an association who elects an eleven-year-old to the board deserves what they get! 

This funny example highlights the never-ending questions that can arise in the context of board elections. The Association is taking the right step in seeking legal advice to resolve this issue before an annual meeting and before an election dispute turns into something more serious. Morris Sperry attorneys can turn around these types of questions quickly and efficiently to keep associations on track with their board elections.

Comments 0   Add new comment
November 12, 2015

As Americans, we love our country and those men and women, past and present, who serve and sacrifice for our freedoms. Displaying the Flag of the United States is one way we show our patriotism to honor our nation and the heroes that make this country great.  

Recently, the right to fly our nation’s Flag within homeowners associations (each an “HOA”) has stirred some controversy here in our state. When news broke that an HOA in the Salt Lake Valley wanted to restrict its residents from flying Old Glory, owners of that HOA and many others expressed their outrage. It is likely that no other symbol evokes more emotion and patriotism than the Stars and Stripes. So if you are an owner or resident in an HOA, what are your rights when it comes to flying the American Flag?

When a person purchases a home in an HOA (a condo, townhome, or detached home), that person becomes a member of the HOA and agrees to adhere to the HOA’s particular covenants, conditions, and restrictions (the “CC&Rs”). Courts interpret CC&Rs as legally binding contracts between the owners and the HOA. This is why it’s so important for owners or prospective purchasers to review the HOA’s CC&Rs so they understand the covenants or restrictions that may apply to the use of their property and the HOA’s common property within the HOA’s boundaries. Due to the complex nature of CC&Rs, owners in HOAs sometimes fail to properly understand the restrictions they agree to when purchasing their home or fail to see the many benefits HOA living brings with it.

While some HOA rights are apparent, other rights have been misunderstood. Some people feel that an HOA restricting the location where a Flag is flown is a restriction on freedom of speech and the property rights we as Americans hold so dear. However, this is not always the case.   

A homeowner in an HOA has the absolute legal right to fly the American Flag on property he or she exclusively owns or controls, within certain legal requirements. Both federal and Utah state statutes apply to one’s right to display the American Flag. Section 3 of the Freedom to Display the American Flag Act of 2005 (federal law) states:

“A condominium association, cooperative association, or residential real estate management association may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use.”  

A quick reading of this section may suggest that an HOA may not restrict an owner’s right to display the Flag at all. However, the key issue to focus on in this scenario is the location where an owner is attempting to display the Flag.

If the owner has “exclusive possession or use” of an area then the HOA cannot restrict or prevent Flag displays in that area. The HOA, however, can restrict Flag flying in the common areas. The CC&Rs and plats for each HOA identify those sections of an owner’s dwelling or lot that are owned exclusively by the owner and those areas over which the owner has the exclusive right to use or possess. The HOA’s CC&Rs further identify the common areas of the HOA. In a condominium project, the common areas are owned collectively by all owners and may include areas such as the clubhouse or pool area, landscaping surrounding condos, and building features (siding, roofs, eaves, etc.). In other community association developments (non-condominium projects), the common areas are owned by the HOA itself. Thus, the common areas in HOAs are not owned by any one owner and there is no “separate ownership interest” in the common areas for a particular owner. Moreover, the CC&Rs generally provide that all owners of the HOA have a right to use and enjoy the common areas, which means that no individual owner has the “right to exclusive possession or use” of these common areas. These common areas, therefore, fall outside the scope of section 3 of the Freedom to Display the American Flag Act of 2005, and an HOA may regulate or even prohibit the display of the Flag on its common areas.

Utah law further addresses displaying flags in an HOA. Utah’s Display of Flag Act includes condominium associations within the definition of “residential property management authority”[1] and provides, in part:

A residential property management authority may not prohibit a resident from displaying a Flag:

(a)    consistent with the guidelines in [federal law];

(b)   within an area over which the resident has exclusive control; and

(c)    from a staff, pole, or window.[2]

As explained above, an owner or resident of a condominium association does not have “exclusive control” over common areas within his or her HOA; therefore, a condominium association may restrict or prevent an owner or resident from displaying the Flag in common areas. On the other hand, CC&Rs typically define the interior sides of windows in condominium projects as being under the resident’s “exclusive control”; thus, an HOA could not prohibit the resident from displaying the Flag in a window.

Utah’s Community Association Act[3] – which applies to planned unit developments and community associations other than condominium projects[4] – further addresses the issue of displaying the Flag in a community association. Section 219 of this act states:

  1. An association may not prohibit a lot owner from displaying a United States flag inside a dwelling or limited common area or on a lot, if the display complies with United States Code, Title 4, Chapter 1, The Flag. 
  2. An association may restrict the display of a flag on the common areas.

This law allows the HOA to restrict the display of the Flag in the common areas, which are owned by the HOA and not by any particular owner. Keep in mind, however, that the HOA may not prohibit an owner from displaying the Flag in any area that is not common area, except in limited circumstances

Federal law allows an HOA to adopt “any reasonable restriction pertaining to the time, place, manner of displaying the Flag of the United States necessary to protect a substantial interest of the condominium association, cooperative association, or residential real estate management association.” [5] One example of a valid time, place, and manner restriction could apply to illuminating the Flag for display at night.  “[I]t might be appropriate to restrict large flood lights that illuminate the flag because it disturbs the ability of neighbors to sleep.”[6] An HOA may require that the Flag be properly displayed per the Federal Flag Act. We all hope that someone displaying or using the Flag does so in a manner that is proper and respectful to the Flag but, just in case, an HOA may require that the individual correct his/her actions so that the Flag is properly displayed.

One must keep in mind that even though an HOA has the right to restrict the display of the American Flag on common area, the HOA may take the position that it wants its owners and residents to fly the Flag in the common areas.  An HOA may choose to amend its CC&Rs (in accordance with its particular amendment procedures) and specifically allow owners to display the American Flag in certain common areas. Such an amendment may contain guidelines concerning the location and manner that flag poles or other devices may be installed on the common areas to minimize the potential for future damages (i.e. water penetration through the holes) while still allowing residents to express their patriotism and respecting a person’s right to fly that Star Spangled Banner.

It is important to note that while many view HOAs in a negative light, these people limit their focus and perspective to only certain restrictions imposed by the HOA. It is true that when individuals live in an HOA, they are essentially entering into a contract with their neighbors and, by entering into that contract, the owners may give up some of their rights that may otherwise accompany traditional homeownership (outside of an HOA); however, these individuals in an HOA gain protections and rights too.  Some of the use restrictions that may limit traditional property rights concern: colors used on the exterior of a home, materials and colors used when installing a fence, types of plants or trees an owner may have in his/her yard, smoking tobacco products in or around a dwelling, and the number or type of pets an owner may have, whether an owner may rent their property.  Viewed from another perspective, these restrictions grant owners the right to protect themselves from breathing secondhand smoke and to maintain uniformity in the quality of craftsmanship, landscaping, and level of building and landscaping maintenance all of which preserve property values.  An HOA’s CC&Rs further afford owners the right to elect members of their HOA’s governing board, approve their HOA’s budget, and ratify proposed amendments to their HOA’s CC&Rs. 

In conclusion, living in an HOA does not strip individuals of their Constitutional, federal, and/or state law rights when it comes to issues such as displaying the American Flag.  By living in an HOA, individuals agree to adhere to further statutory and contractual provisions intended to promote the health, safety, and welfare of the community residents, maintain a sense of community, and preserve owners’ property values.

**This article originally appeared on the Utah Chapter of the Community Associations Institute blog on Nov. 11, 2015.


 

[1] Utah Code Ann. § 57-24-101(3).

[2] Utah Code Ann. § 57-24-102(1).

[3] Utah Code Ann. § 57-8a-101 et seq.

[4] Utah Code Ann. § 57-8-1 et seq., applies to condominium projects. 

[5] See Section 4 of the Freedom to Display the American Flag Act of 2005.

[6] See Guidance for Complying with the Freedom to Display the American Flag Act of 2005, Community Associations Institute, available at http://www.caionline.org/govt/news/Pages/GuidanceforComplyingwiththeFreedomtoDisplaytheAmericanFlagActof2005.aspx.

Comments 0   Add new comment

Pages