Friday, March 14, 2008

Some Very Useful Information

Lawyers, board members, association managers and involved unit owners ought to take some time to access and read this "Joint Statement of the Department of Housing and Urban Development and the Department of Justice." The document provides guidance on reasonable accomodations under the Fair Housing Act.

I'll be reading it this weekend, and will post some of the more interesting and helpful portions of the guide over the next few days. (So, if you are not yet a subscriber to this blog, now would be a good time to become one. If you wish to subscribe, enter your email address to the left.)

Thursday, March 13, 2008

There Ought to be a Rule...

against parking in your neighor's unit. has this picture, and a few others, in this
news story; according to KSL's report, the driver said that the car "shot into reverse" when she started the car.

Also according to KSL, neither the driver nor the building were seriously injured.

Wednesday, March 05, 2008

Keeping Your Private Roads Private

On February 12, the Utah Supreme Court released a trilogy of cases dealing with private roadways, and the interpretation of Utah Code Ann. 72-5-104 (the "Dedication Statute"). Under the Dedication Statute, the continuous and uninterrupted use of a private roadway, by the public, will result in a deemed public dedication of the road. If a road is dedicated in this fashion, the public gains a permanent right to travel accross the roadway.

In the opinions, the Court clarified what constitutes an "interruption" that is sufficient to restart the running of the ten-year period. Of most interest to associations is the Town of Leeds v. Prisbey opinion, which found that Ms. George's twenty-four hour roadblocks, which she conducted in 1971, 1978, 1985, 1992 and 1999, had sufficiently interrupted the public use to prevent a public dedication.

The other decisions had different facts, and are not as helpful in providing guidance to associations.

In light of the decisions, it's probably a good idea for associations to have a 24-hour road block of their roads (from public use), at least once every ten years, and keep evidence of the blockages.

The cases are Town of Leeds v. Prisbey, 2008 UT 11, Wasatch County v. Okelberry, 2008 UT 10, and Utah County v. Butler, 2008 UT 12.

Saturday, March 01, 2008

Contact Your Legislator re: SB 220

For the past several weeks, I've been trying to protect Utah Community Associations and their owners (past, present and future), from SB 220, a bill pushed by the Utah Home Builders Association, and designed to protect builders from construction defect lawsuits. Here, for your review, is a copy of the letter that I sent to Utah representatives, who will be voting on this legislation on Monday.

If you have not done so yet, I encourage you to email or call your legislator.

Here's a handy page that will help you to find your representative, by address:

Contact Your Representative

Dear Representative:

I am an attorney, practicing primarily community association law. I was the founder of the Utah Chapter of the Community Associations Institute and am a member of CAI’s College of Community Association Lawyers. (The opinions in this letter are my own.)

I have become aware of SB 220, and am very concerned regarding the adverse consequences that it would have, if it passes, upon community associations and those who buy and live in them. I have no doubt that the legislation, if it passes, would deprive most Utah homeowners from having any recourse in the event of defective construction.

I have received a copy of correspondence sent from a local realtor to a representative in support of the bill; I would respectfully request that you consider my responses to the arguments in the letter that you may have received:

"It codifies more than a decade of Utah case law currently in place";

This is not true. The Utah Supreme Court stated several years ago, regarding to the American Towers decision, which this purports to “codify” : “we do not find American Towers Owners Ass'n and SME Industries persuasive authority regarding the current state of the economic loss rule in Wyoming or Utah." (Grynberg v. Questar, 2003 UT 8,¶56, 70 P.3d 1). Several other cases have questioned and limited American Towers. I am certain that it is that clear trend, from Utah’s Supreme Court and Court of Appeals, that is spurring this legislation.

"It reinforces homeowners' rights to bring claims under contract law, allowing current and subsequent homeowners to sue builders for defective construction under the terms of their contract or warranty";

There is no need to “reinforce” a right to sue under contract. This right is clearly established under Utah law, and has been since statehood. This bill does absolutely nothing to create or reinforce any homeowners’ rights.

"It clarifies that homeowners and third parties may bring tort claims when a construction defect causes personal injury or damage to other property";

Again, this right is clear under existing case law. This bill, however, would allow these claims to be pursued only when there is an injury. If a tub falls through the floor and kills or injures someone, there could be a lawsuit. If a tub falls through and lands on the concrete garage in a condo, there will probably be no suit, because there will be no “damage to other property” and no contract between the contractor and the homeowner.

"It strikes a balance between allowing a homeowner to sue for faulty work, while guarding against frivolous lawsuits."

Many, if not most homeowners will not be able to sue because of the absence of a contract. Even where contracts exist, they are almost always drafted by the developer's or contractor's lawyer, and unit owners very seldom seek or obtain legal advice when purchasing their homes.
Furthermore, I have seen no evidence of “frivolous lawsuits”. On the rare occasions that frivolous lawsuits may be filed, the courts can and will respond by awarding attorneys’ fees to the defendants under Utah Code Ann. 78-27-56.

Why is the Utah Association of Realtors supporting SB 220???

"It protects the free market system and the home buyer's right to choice";

This does not, in any way, add any “right to choice”. What does it allow one to choose that they cannot currently choose?

"It helps insure that buyers have choices regarding the design, construction and warranty of their home";

How does this bill even effect, much less help that “choice”? How does an owner’s inability to sue in negligence increase their choices in design?"

It prevents third parties from suing on behalf of homeowners who may not want to be part of a lawsuit";

No one can sue on behalf of another without the other’s consent. A community association can, under current law, (which has been in place for thirty years) bring a suit on behalf of the association, but when that happens, the decision to sue is made by an elected board. No one is being forced, by anyone else, into lawsuits.

"It protects housing affordability by limiting frivolous lawsuits that artificially inflate home construction costs";

I keep hearing this, and I keep asking for any evidence of “frivolous lawsuits”, but I am not seeing any evidence of any frivolous construction defect lawsuits. Furthermore, “housing affordability” necessarily includes the cost of repairs and maintenance. If builders are shielded from liability (by this or any similar bill), the cost of resultant repairs and maintenance will be borne by innocent homeowners.

"And, it gives buyers the option, in line with building code standards, to choose more affordable products for their homes, e.g., a 20-year shingle for a roof, rather than a 50-year on".

Again, home buyers have that option right now. This adds nothing. In fact, under this law, they may get that 20 year roof without being told about it, because there will be no obligation on the builder to meet any standard of care.

"It protects homeowner and home builder insurance availability and affordability".

There is no evidence that this will help availability or affordability of home builder or homeowner insurance. If it has any effect on homeowner insurance, it would almost certainly be negative, as homeowner insurers would lose their right to subrogate against builders.

"It reinforces homeowners' rights to bring claims under contract law, allowing current and subsequent homeowners to sue builders for defective construction under the terms of their contract or warranty";

A repeat of the same arguments above. Those rights exist, and this does not add to them.

"It clarifies that homeowners and third parties may bring tort claims when a construction defect causes personal injury or damage to other property";

See above.

"It strikes a balance between allowing a homeowner to sue for faulty work while guarding against frivolous lawsuits".

There is no balance for the majority of Utahns who don’t have contracts with their contractors, and thus would have no right to sue.

I sincerely thank you for your time and consideration of this important legislation. I respectfully suggest that there is no need for any legislation on the subject, but if there is to be legislation on an issue of this importance, it should be carefully considered and debated. That has not happened with this bill.

Lincoln W. Hobbs

March 1 Open Thread

I'm trying a new idea in connection with today's Seminar and Discussion; this is this Blog's first "Open Thread".

The idea, for those of you who are new to this, is to just open it up for comments, starting with a topic and allowing the readership to let it go from there.

So, to start it all off -- Any thoughts about what the legislature has done this session, and what we, in the community association industry can and should do about it?

And remember, as you comment; this is an open (and moderated) blog. What you say can and will be seen by many others!