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 money used to pay a unit
19     owner's or a lot owner's utility bill or to winterize a unit or a lot; and
20          ▸     makes technical and conforming changes.
21     Money Appropriated in this Bill:
22          None
23     Other Special Clauses:
24          None
25     Utah Code Sections Affected:
26     AMENDS:
27          57-8-3, as last amended by Laws of Utah 2013, Chapters 95 and 152
28          57-8a-102, as last amended by Laws of Utah 2013, Chapters 95 and 152
29     ENACTS:
30          57-8-56, Utah Code Annotated 1953
31          57-8A-225, Utah Code Annotated 1953
32     

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




Legislative Review Note
     as of 2-9-15 2:30 PM

Office of Legislative Research and General Counsel