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News/Blog

News/Blog

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.

 

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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.  

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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. 

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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.  

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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?

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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.

 

 

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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.

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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.

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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.

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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.  

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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. 

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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?

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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.

 

 

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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.

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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.  

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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.

 

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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. 

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September 22, 2015

The cable television provider in a Florida association recently refused to provide service because its service technicians had been robbed at gunpoint. Nine buildings have been demolished by the city in the 60 unit association and the association had received millions of dollars in fines for code violations. This association is likely the end result of unchecked defered maintenance. When an association has failed to maintain long enough, it crosses a tipping point. Any owner who is financially capable of catching up the maintenance or with the talent and leadership to work through serious maintenance problems will have moved. The only people left will be those people financially unable to correct the problems and without the motivation or talent for serious maintenance projects. The inevitable result is a catestrophic loss of property values and eventual condemnation. Every association with any signficant common area infrastructure is at risk for this problem, particularly condominium and townhome associations. Morris Sperry can provide good legal and busineses advice on the issues of deferred maintenance and reserves. Don't let your association cross the tipping point!

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September 22, 2015

For the third year in a row, Morris Sperry lawyers showed up in force to play golf and enjoy a day with HOA managers, HOA insurance providers, and other HOA vendors and industry partners. This annual outing is a great chance for people in the Utah HOA industry to spend a day together and enjoy one-another's company outside of work. Morris Sperry sponsored a record eight teams this year, one of which was the biggest loser (remember . . . we focus on HOA law, not golfing), and one of which tied to win. Morris Sperry lawyers and staff look forward to this ongoing tradition and to continue to support CAI and the education of homeowners and HOA board members in Utah. 

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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.   

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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. 

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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.  

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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?

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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.

 

 

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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.

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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.

 

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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. 

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September 22, 2015

The cable television provider in a Florida association recently refused to provide service because its service technicians had been robbed at gunpoint. Nine buildings have been demolished by the city in the 60 unit association and the association had received millions of dollars in fines for code violations. This association is likely the end result of unchecked defered maintenance. When an association has failed to maintain long enough, it crosses a tipping point. Any owner who is financially capable of catching up the maintenance or with the talent and leadership to work through serious maintenance problems will have moved. The only people left will be those people financially unable to correct the problems and without the motivation or talent for serious maintenance projects. The inevitable result is a catestrophic loss of property values and eventual condemnation. Every association with any signficant common area infrastructure is at risk for this problem, particularly condominium and townhome associations. Morris Sperry can provide good legal and busineses advice on the issues of deferred maintenance and reserves. Don't let your association cross the tipping point!

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September 22, 2015

For the third year in a row, Morris Sperry lawyers showed up in force to play golf and enjoy a day with HOA managers, HOA insurance providers, and other HOA vendors and industry partners. This annual outing is a great chance for people in the Utah HOA industry to spend a day together and enjoy one-another's company outside of work. Morris Sperry sponsored a record eight teams this year, one of which was the biggest loser (remember . . . we focus on HOA law, not golfing), and one of which tied to win. Morris Sperry lawyers and staff look forward to this ongoing tradition and to continue to support CAI and the education of homeowners and HOA board members in Utah. 

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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.

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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.

 

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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. 

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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. 

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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.   

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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.

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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. 

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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.

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April 3, 2015

The governor signed the remaining new HOA law, S.B. 118, on the last day allowed. Signficant changes to the procedure for requesting association documents now takes effect along with help for association amendments and the fine and attorney fee provision for associations who fail to comply with the new open meeting laws. All of the new 2015 condominium laws and PUD laws will now take effect. Watch for future articles on the Morris Sperry website analyzing the new legislation and providing specific implementation dates.

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April 1, 2015

Governor Herbert signed three more new condo laws and new community association laws in the last few days. H.B. 98 dealing with association rentals and fines will become law. S.B. 80 making minor modifications to the reserve statute will become law. Finally, S.B. 206 making significant changes the the revised nonprofit corporations act will become law. Keep updated on the Morris Sperry's website for more information on these important new hoa laws.

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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.

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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. 

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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.  

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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.

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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. 

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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.  

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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.   

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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.     

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January 29, 2015

Two new hoa laws, HB 98 Association Amendments and HB 99 Open meetings, passed through House Business and Labor Committee by unanimous vote of the committee members and HB 99 just passed the house and is on the way to Senate. John Morris of Morris Sperry was involved in the drafting of both bills. HB 99 will guarantee owner access and the right to notice of regular meetings of the board of directors and management committees in condominium and homeowners associations in Utah. HB 98 contains long negotiated changes to further balance the relationship between HOAs and owners who rent their units and homes. Utah HB 98 also contains new provisions clarifying HOA fine provisions and changes that will finally allow commercial condominiums to fine owners rather than have to initiate lawsuits in every enforcement action. Morris Sperry is at the frontline in the drafting and passage of balanced laws affecting community assocaitions. 

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January 27, 2015

In 2014 sixty-four Representatives co-sponsored legislation that would have required HOAs to "reasonably accomodate" HAM radio towers and antennas. The legislation did not pass, but the HAM radio industry is back attempting the same legislation in 2015.

SEND AN EMAIL OR LETTER TO YOUR FEDERAL REPRESENTATIVE AND SENATOR TELLING HIM OR HER THAT YOUR OWNERS SHOULD DECIDE WHETHER OR NOT HAM RADIO TOWERS ARE ALLOWED IN YOUR HOA, NOT THE FEDERAL GOVERNMENT.

ASK THEM TO OPPOSE LEGISLATION REQUIRING HOMEOWNERS ASSOCIATIONS TO PERMIT HAM RADIO TOWERS IN THEIR COMMUNITY.  

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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.

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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.  

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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.

 

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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. 

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September 22, 2015

For the third year in a row, Morris Sperry lawyers showed up in force to play golf and enjoy a day with HOA managers, HOA insurance providers, and other HOA vendors and industry partners. This annual outing is a great chance for people in the Utah HOA industry to spend a day together and enjoy one-another's company outside of work. Morris Sperry sponsored a record eight teams this year, one of which was the biggest loser (remember . . . we focus on HOA law, not golfing), and one of which tied to win. Morris Sperry lawyers and staff look forward to this ongoing tradition and to continue to support CAI and the education of homeowners and HOA board members in Utah. 

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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.   

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July 24, 2015

It's final! Morris Sperry's new Park City address is 1776 Park Avenue, Suite 209, Park City, Utah. With two offices, Morris Sperry is now even better situated to serve clients anywhere in Utah. Starting July 28, 2015, Morris Sperry lawyers will be working in temporary space at this Park City address while the future permanent office space is completely remodeled and upgraded. Morris Sperry will be creating a world class office and meeting space to serve Park City, Heber, and all other Summit County, Wasatch County, and Eastern Utah community associations, condominium associations, and HOAs. The remodel will include a new conference room allowing Morris Sperry attorneys to host meetings of up to forty people and will include state of the art conference phone systems and presentation technology. Morris Sperry client associations will be allowed to use the conference room for annual meetings and board meetings at no cost. The Morris Sperry Park City HOA law office will also be the location for expanded training and educational seminars in this new state-of-the-art conference room. The Morris Sperry hoa lawyers look forward to moving into the permanent space in October, 2015. The addition of a Park City office also provides much needed relief for the Midvale office which is bursting at the seams after Morris Sperry added six lawyers in the last two years.

The Morris Sperry community association lawyers are committed to serving community associations throughout the state of Utah and will continue to add excellent lawyers and staff and open offices as necessary to provide excellent and timely legal services.  

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June 23, 2015

Quinn Sperry of the Morris Sperry HOA law firm have been named to Mountain States Super Lawyers Rising Stars list in 2015. Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations, and peer evaluations. No more than 2.5 percent of the laywers in any state are named to Rising Stars. The HOA lawyers at Morris Sperry are acknowledged and distinguished in various lawyer rating services.  

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June 23, 2015

The HOA law firm Morris Sperry is in the process of procuring office space in Park City, Utah. Two of the HOA attorneys at Morris Sperry live in Park City and Morris Sperry has many condominium and homeowners association clients in Park City, Deer Valley, Empire Pass, Heber, Jeremy Ranch, and the surrounding areas. Morris Sperry's Park City office will provide a convenient and easy office for clients, board members, and HOA owners to visit their HOA lawyers. Morris Sperry also intends to make available its conference room for homeowners association meetings and board meetings. Morris Sperry looks forward to opening the office sometime in October or November 2015. The HOA attorneys at Morris Sperry remain committed to serving the many homeowners associations, developers, and owners in HOAs all throughout Utah.

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May 27, 2015

In what could foretell the future for many Western State HOAs, a Nevada homeowners association removed dozens of mature pine trees to replace them with drought resistant and lower water consumption trees. According to the Association's manager, a healthy pine tree can consume twelve times as much water as more drought resistant trees. The owners in the community were upset by the change in the appearance of the community, but seemed to understand why the change had to be made. As population and world temperatures increase, HOAs in Utah and surrounding states will face more pressure to use less water and to replace thirsty lawn and landscaping. 

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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.

 

 

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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.

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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.

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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.  

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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.

 

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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. 

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September 22, 2015

For the third year in a row, Morris Sperry lawyers showed up in force to play golf and enjoy a day with HOA managers, HOA insurance providers, and other HOA vendors and industry partners. This annual outing is a great chance for people in the Utah HOA industry to spend a day together and enjoy one-another's company outside of work. Morris Sperry sponsored a record eight teams this year, one of which was the biggest loser (remember . . . we focus on HOA law, not golfing), and one of which tied to win. Morris Sperry lawyers and staff look forward to this ongoing tradition and to continue to support CAI and the education of homeowners and HOA board members in Utah. 

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September 22, 2015

The cable television provider in a Florida association recently refused to provide service because its service technicians had been robbed at gunpoint. Nine buildings have been demolished by the city in the 60 unit association and the association had received millions of dollars in fines for code violations. This association is likely the end result of unchecked defered maintenance. When an association has failed to maintain long enough, it crosses a tipping point. Any owner who is financially capable of catching up the maintenance or with the talent and leadership to work through serious maintenance problems will have moved. The only people left will be those people financially unable to correct the problems and without the motivation or talent for serious maintenance projects. The inevitable result is a catestrophic loss of property values and eventual condemnation. Every association with any signficant common area infrastructure is at risk for this problem, particularly condominium and townhome associations. Morris Sperry can provide good legal and busineses advice on the issues of deferred maintenance and reserves. Don't let your association cross the tipping point!

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September 8, 2015

In a new twist on the pink flamingo, a Texas HOA board is now wrestling with a T-Rex and a Velociraptor decoration on the front lawn of a member home. The owners installed the Jurassic lawn decorations without approval of the association. The declaration and bylaws clearly require approval of the association for any yard decorations. The owners have stated that they will challenge any attempt by the community association to enforce the restriction or to remove the decorations. The surrounding community is watching to see if the dinosaurs are strong enough to survive HOA enforcement powers. Hopefully the HOA and the homeowners have lawyers like Morris Sperry to help deal with this situation. This is the type of issue that can explode into expensive litigation and a damaging public relations battle. Having dealt with this type of problem many times, Morris Sperry can offer a combination of both legal and practical advice to resolve this type of problem in a constructive and cost effective way.   

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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. 

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