1     
HOMEOWNER ASSOCIATION UTILITIES AMENDMENTS

2     
2015 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Dixon M. Pitcher

5     
Senate Sponsor: Brian E. Shiozawa

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions relating to utility service to homeowner associations.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms;
13          ▸     addresses the circumstances under which an electrical corporation or a gas
14     corporation may discontinue service to a unit or a lot;
15          ▸     provides a procedure by which an association may:
16               •     pay a unit owner's or a lot owner's delinquent utility bill to maintain service; or
17               •     enter a unit or a lot to winterize the unit or lot;
18          ▸     addresses the method by which an association may recover actual and reasonable
19     money used to pay a unit owner's or a lot owner's utility bill or to winterize a unit or
20     a lot; and
21          ▸     makes technical and conforming changes.
22     Money Appropriated in this Bill:
23          None
24     Other Special Clauses:
25          None
26     Utah Code Sections Affected:
27     AMENDS:
28          57-8-3, as last amended by Laws of Utah 2013, Chapters 95 and 152
29          57-8a-102, as last amended by Laws of Utah 2013, Chapters 95 and 152
30     ENACTS:
31          57-8-56, Utah Code Annotated 1953
32          57-8a-225, Utah Code Annotated 1953
33     

34     Be it enacted by the Legislature of the state of Utah:
35          Section 1. Section 57-8-3 is amended to read:
36          57-8-3. Definitions.
37          As used in this chapter:
38          (1) "Assessment" means any charge imposed by the association, including:
39          (a) common expenses on or against a unit owner pursuant to the provisions of the
40     declaration, bylaws, or this chapter; and
41          (b) an amount that an association of unit owners assesses to a unit owner under
42     Subsection 57-8-43(9)(g).
43          (2) "Association of unit owners" means all of the unit owners:
44          (a) acting as a group in accordance with the declaration and bylaws; or
45          (b) organized as a legal entity in accordance with the declaration.
46          (3) "Building" means a building, containing units, and comprising a part of the
47     property.
48          (4) "Commercial condominium project" means a condominium project that has no
49     residential units within the project.
50          (5) "Common areas and facilities" unless otherwise provided in the declaration or
51     lawful amendments to the declaration means:
52          (a) the land included within the condominium project, whether leasehold or in fee
53     simple;
54          (b) the foundations, columns, girders, beams, supports, main walls, roofs, halls,
55     corridors, lobbies, stairs, stairways, fire escapes, entrances, and exits of the building;
56          (c) the basements, yards, gardens, parking areas, and storage spaces;
57          (d) the premises for lodging of janitors or persons in charge of the property;
58          (e) installations of central services such as power, light, gas, hot and cold water,
59     heating, refrigeration, air conditioning, and incinerating;
60          (f) the elevators, tanks, pumps, motors, fans, compressors, ducts, and in general all
61     apparatus and installations existing for common use;
62          (g) such community and commercial facilities as may be provided for in the
63     declaration; and
64          (h) all other parts of the property necessary or convenient to its existence, maintenance,
65     and safety, or normally in common use.
66          (6) "Common expenses" means:
67          (a) all sums lawfully assessed against the unit owners;
68          (b) expenses of administration, maintenance, repair, or replacement of the common
69     areas and facilities;
70          (c) expenses agreed upon as common expenses by the association of unit owners; and
71          (d) expenses declared common expenses by this chapter, or by the declaration or the
72     bylaws.
73          (7) "Common profits," unless otherwise provided in the declaration or lawful
74     amendments to the declaration, means the balance of all income, rents, profits, and revenues
75     from the common areas and facilities remaining after the deduction of the common expenses.
76          (8) "Condominium" means the ownership of a single unit in a multiunit project
77     together with an undivided interest in common in the common areas and facilities of the
78     property.
79          (9) "Condominium plat" means a plat or plats of survey of land and units prepared in
80     accordance with Section 57-8-13.
81          (10) "Condominium project" means a real estate condominium project; a plan or
82     project whereby two or more units, whether contained in existing or proposed apartments,
83     commercial or industrial buildings or structures, or otherwise, are separately offered or
84     proposed to be offered for sale. Condominium project also means the property when the
85     context so requires.
86          (11) "Condominium unit" means a unit together with the undivided interest in the
87     common areas and facilities appertaining to that unit. Any reference in this chapter to a
88     condominium unit includes both a physical unit together with its appurtenant undivided interest
89     in the common areas and facilities and a time period unit together with its appurtenant
90     undivided interest, unless the reference is specifically limited to a time period unit.
91          (12) "Contractible condominium" means a condominium project from which one or
92     more portions of the land within the project may be withdrawn in accordance with provisions
93     of the declaration and of this chapter. If the withdrawal can occur only by the expiration or
94     termination of one or more leases, then the condominium project is not a contractible
95     condominium within the meaning of this chapter.
96          (13) "Convertible land" means a building site which is a portion of the common areas
97     and facilities, described by metes and bounds, within which additional units or limited common
98     areas and facilities may be created in accordance with this chapter.
99          (14) "Convertible space" means a portion of the structure within the condominium
100     project, which portion may be converted into one or more units or common areas and facilities,
101     including limited common areas and facilities in accordance with this chapter.
102          (15) "Declarant" means all persons who execute the declaration or on whose behalf the
103     declaration is executed. From the time of the recordation of any amendment to the declaration
104     expanding an expandable condominium, all persons who execute that amendment or on whose
105     behalf that amendment is executed shall also come within this definition. Any successors of
106     the persons referred to in this subsection who come to stand in the same relation to the
107     condominium project as their predecessors also come within this definition.
108          (16) "Declaration" means the instrument by which the property is submitted to the
109     provisions of this act, as it from time to time may be lawfully amended.
110          (17) "Electrical corporation" means the same as that term is defined in Section 54-2-1.
111          [(17)] (18) "Expandable condominium" means a condominium project to which
112     additional land or an interest in it may be added in accordance with the declaration and this
113     chapter.
114          (19) "Gas corporation" means the same as that term is defined in Section 54-2-1.
115          [(18)] (20) "Governing documents":
116          (a) means a written instrument by which an association of unit owners may:
117          (i) exercise powers; or
118          (ii) manage, maintain, or otherwise affect the property under the jurisdiction of the
119     association of unit owners; and
120          (b) includes:
121          (i) articles of incorporation;
122          (ii) bylaws;
123          (iii) a plat;
124          (iv) a declaration of covenants, conditions, and restrictions; and
125          (v) rules of the association of unit owners.
126          [(19)] (21) "Independent third party" means a person that:
127          (a) is not related to the unit owner;
128          (b) shares no pecuniary interests with the unit owner; and
129          (c) purchases the unit in good faith and without the intent to defraud a current or future
130     lienholder.
131          [(20)] (22) "Leasehold condominium" means a condominium project in all or any
132     portion of which each unit owner owns an estate for years in his unit, or in the land upon which
133     that unit is situated, or both, with all those leasehold interests to expire naturally at the same
134     time. A condominium project including leased land, or an interest in the land, upon which no
135     units are situated or to be situated is not a leasehold condominium within the meaning of this
136     chapter.
137          [(21)] (23) "Limited common areas and facilities" means those common areas and
138     facilities designated in the declaration as reserved for use of a certain unit or units to the
139     exclusion of the other units.
140          [(22)] (24) "Majority" or "majority of the unit owners," unless otherwise provided in
141     the declaration or lawful amendments to the declaration, means the owners of more than 50%
142     in the aggregate in interest of the undivided ownership of the common areas and facilities.
143          [(23)] (25) "Management committee" means the committee as provided in the
144     declaration charged with and having the responsibility and authority to make and to enforce all
145     of the reasonable rules covering the operation and maintenance of the property.
146          [(24)] (26) "Mixed-use condominium project" means a condominium project that has
147     both residential and commercial units in the condominium project.
148          [(25)] (27) "Par value" means a number of dollars or points assigned to each unit by the
149     declaration. Substantially identical units shall be assigned the same par value, but units located
150     at substantially different heights above the ground, or having substantially different views, or
151     having substantially different amenities or other characteristics that might result in differences
152     in market value, may be considered substantially identical within the meaning of this
153     subsection. If par value is stated in terms of dollars, that statement may not be considered to
154     reflect or control the sales price or fair market value of any unit, and no opinion, appraisal, or
155     fair market transaction at a different figure may affect the par value of any unit, or any
156     undivided interest in the common areas and facilities, voting rights in the unit owners'
157     association, liability for common expenses, or right to common profits, assigned on the basis
158     thereof.
159          [(26)] (28) "Person" means an individual, corporation, partnership, association, trustee,
160     or other legal entity.
161          [(27)] (29) "Property" means the land, whether leasehold or in fee simple, the building,
162     if any, all improvements and structures thereon, all easements, rights, and appurtenances
163     belonging thereto, and all articles of personal property intended for use in connection
164     therewith.
165          [(28)] (30) "Record," "recording," "recorded," and "recorder" have the meaning stated
166     in Title 57, Chapter 3, Recording of Documents.
167          [(29)] (31) "Size" means the number of cubic feet, or the number of square feet of
168     ground or floor space, within each unit as computed by reference to the record of survey map
169     and rounded off to a whole number. Certain spaces within the units including attic, basement,
170     or garage space may be omitted from the calculation or be partially discounted by the use of a
171     ratio, if the same basis of calculation is employed for all units in the condominium project and
172     if that basis is described in the declaration.
173          [(30)] (32) "Time period unit" means an annually recurring part or parts of a year
174     specified in the declaration as a period for which a unit is separately owned and includes a
175     timeshare estate as defined in Subsection 57-19-2(19).
176          [(31)] (33) "Unit" means either a separate physical part of the property intended for any
177     type of independent use, including one or more rooms or spaces located in one or more floors
178     or part or parts of floors in a building or a time period unit, as the context may require. A
179     convertible space shall be treated as a unit in accordance with Subsection 57-8-13.4(3). A
180     proposed condominium unit under an expandable condominium project, not constructed, is a
181     unit two years after the date the recording requirements of Section 57-8-13.6 are met.
182          [(32)] (34) "Unit number" means the number, letter, or combination of numbers and
183     letters designating the unit in the declaration and in the record of survey map.
184          [(33)] (35) "Unit owner" means the person or persons owning a unit in fee simple and
185     an undivided interest in the fee simple estate of the common areas and facilities in the
186     percentage specified and established in the declaration or, in the case of a leasehold
187     condominium project, the person or persons whose leasehold interest or interests in the
188     condominium unit extend for the entire balance of the unexpired term or terms.
189          Section 2. Section 57-8-56 is enacted to read:
190          57-8-56. Association of unit owners' right to pay delinquent utilities.
191          (1) Upon request in accordance with Subsection (2), at least 10 days before the day on
192     which an electrical corporation or a gas corporation discontinues service to a unit, the electrical
193     corporation or gas corporation shall give the association of unit owners:
194          (a) written notice that the electrical corporation or gas corporation will discontinue
195     service to the unit; and
196          (b) an opportunity to pay any delinquent charges and maintain service to the unit.
197          (2) An association of unit owners may request the notice and opportunity to pay
198     described in Subsection (1) by sending a written request to the electrical corporation or gas
199     corporation that includes:
200          (a) the address of each unit in the association of unit owners;
201          (b) the association of unit owners' name, mailing address, phone number, and email
202     address; and
203          (c) the address where the electrical corporation or gas corporation may send notices.
204          (3) If, after an electrical corporation or a gas corporation sends a written notice
205     described in Subsection (1) to an association of unit owners and the association of unit owners
206     does not pay the delinquent charges within 10 days after the day on which the electrical
207     corporation or gas corporation sends the notice, the electrical corporation or gas corporation
208     may discontinue service to the unit.
209          (4) An association of unit owners may collect any payment to an electrical corporation
210     or a gas corporation under this section as an assessment in accordance with Section 57-8-44.
211          (5) (a) If, after an association of unit owners receives a written notice described in
212     Subsection (1), the association of unit owners decides not to pay the delinquent charges, the
213     association of unit owners may, if permitted by the association of unit owners' governing
214     documents, and after reasonable notice to the unit owner:
215          (i) enter the unit; and
216          (ii) winterize the unit.
217          (b) A person who enters a unit in accordance with Subsection (5)(a) is not liable for
218     trespass.
219          (c) An association of unit owners may charge a unit owner an assessment for the actual
220     and reasonable costs of winterizing a unit in accordance with this Subsection (5).
221          Section 3. Section 57-8a-102 is amended to read:
222          57-8a-102. Definitions.
223          As used in this chapter:
224          (1) (a) "Assessment" means a charge imposed or levied:
225          (i) by the association;
226          (ii) on or against a lot or a lot owner; and
227          (iii) pursuant to a governing document recorded with the county recorder.
228          (b) "Assessment" includes:
229          (i) a common expense; and
230          (ii) an amount assessed against a lot owner under Subsection 57-8a-405(7).
231          (2) (a) Except as provided in Subsection (2)(b), "association" means a corporation or
232     other legal entity, any member of which:
233          (i) is an owner of a residential lot located within the jurisdiction of the association, as
234     described in the governing documents; and
235          (ii) by virtue of membership or ownership of a residential lot is obligated to pay:
236          (A) real property taxes;
237          (B) insurance premiums;
238          (C) maintenance costs; or
239          (D) for improvement of real property not owned by the member.
240          (b) "Association" or "homeowner association" does not include an association created
241     under Title 57, Chapter 8, Condominium Ownership Act.
242          (3) "Board of directors" or "board" means the entity, regardless of name, with primary
243     authority to manage the affairs of the association.
244          (4) "Common areas" means property that the association:
245          (a) owns;
246          (b) maintains;
247          (c) repairs; or
248          (d) administers.
249          (5) "Common expense" means costs incurred by the association to exercise any of the
250     powers provided for in the association's governing documents.
251          (6) "Declarant":
252          (a) means the person who executes a declaration and submits it for recording in the
253     office of the recorder of the county in which the property described in the declaration is
254     located; and
255          (b) includes the person's successor and assign.
256          (7) "Electrical corporation" means the same as that term is defined in Section 54-2-1.
257          (8) "Gas corporation" means the same as that term is defined in Section 54-2-1.
258          [(7)] (9) (a) "Governing documents" means a written instrument by which the
259     association may:
260          (i) exercise powers; or
261          (ii) manage, maintain, or otherwise affect the property under the jurisdiction of the
262     association.
263          (b) "Governing documents" includes:
264          (i) articles of incorporation;
265          (ii) bylaws;
266          (iii) a plat;
267          (iv) a declaration of covenants, conditions, and restrictions; and
268          (v) rules of the association.
269          [(8)] (10) "Independent third party" means a person that:
270          (a) is not related to the owner of the residential lot;
271          (b) shares no pecuniary interests with the owner of the residential lot; and
272          (c) purchases the residential lot in good faith and without the intent to defraud a current
273     or future lienholder.
274          [(9)] (11) "Judicial foreclosure" means a foreclosure of a lot:
275          (a) for the nonpayment of an assessment; and
276          (b) (i) in the manner provided by law for the foreclosure of a mortgage on real
277     property; and
278          (ii) as provided in Part 3, Collection of Assessments.
279          [(10)] (12) "Lease" or "leasing" means regular, exclusive occupancy of a lot:
280          (a) by a person or persons other than the owner; and
281          (b) for which the owner receives a consideration or benefit, including a fee, service,
282     gratuity, or emolument.
283          [(11)] (13) "Limited common areas" means common areas described in the declaration
284     and allocated for the exclusive use of one or more lot owners.
285          [(12)] (14) "Lot" means:
286          (a) a lot, parcel, plot, or other division of land:
287          (i) designated for separate ownership or occupancy; and
288          (ii) (A) shown on a recorded subdivision plat; or
289          (B) the boundaries of which are described in a recorded governing document; or
290          (b) (i) a unit in a condominium association if the condominium association is a part of
291     a development; or
292          (ii) a unit in a real estate cooperative if the real estate cooperative is part of a
293     development.
294          [(13)] (15) "Mixed-use project" means a project under this chapter that has both
295     residential and commercial lots in the project.
296          [(14)] (16) "Nonjudicial foreclosure" means the sale of a lot:
297          (a) for the nonpayment of an assessment; and
298          (b) (i) in the same manner as the sale of trust property under Sections 57-1-19 through
299     57-1-34; and
300          (ii) as provided in Part 3, Collection of Assessments.
301          [(15)] (17) "Residential lot" means a lot, the use of which is limited by law, covenant,
302     or otherwise to primarily residential or recreational purposes.
303          Section 4. Section 57-8a-225 is enacted to read:
304          57-8a-225. Association's right to pay delinquent utilities.
305          (1) Upon request in accordance with Subsection (2), at least 10 days before the day on
306     which an electrical corporation or a gas corporation discontinues service to a lot, the electrical
307     corporation or gas corporation shall give the association:
308          (a) written notice that the electrical corporation or gas corporation will discontinue
309     service to the lot; and
310          (b) an opportunity to pay any delinquent charges and maintain service to the lot.
311          (2) An association may request the notice and opportunity to pay described in
312     Subsection (1) by sending a written request to the electrical corporation or gas corporation that
313     includes:
314          (a) the address of each lot in the association;
315          (b) the association's name, mailing address, phone number, and email address; and
316          (c) the address where the electrical corporation or gas corporation may send notices.
317          (3) If, after an electrical corporation or a gas corporation sends a written notice
318     described in Subsection (1) to an association and the association does not pay the delinquent
319     charges within 10 days after the day on which the electrical corporation or gas corporation
320     sends the notice, the electrical corporation or gas corporation may discontinue service to the
321     lot.
322          (4) An association may collect any payment to an electrical corporation or a gas
323     corporation under this section as an assessment in accordance with Section 57-8a-301.
324          (5) (a) If, after an association receives a written notice described in Subsection (1), the
325     association decides not to pay the delinquent charges, the association may, if permitted by the
326     association's governing documents, and after reasonable notice to the lot owner:
327          (i) enter the lot; and
328          (ii) winterize the lot.
329          (b) A person who enters a lot in accordance with Subsection (5)(a) is not liable for
330     trespass.
331          (c) An association may charge a lot owner an assessment for the actual and reasonable
332     costs of winterizing a lot in accordance with this Subsection (5).