Homeowners associations can encounter situations where their governing documents require a meeting, vote, consent, or other member action that becomes impractical or impossible to achieve.
For example, an association may be seeking approval of amended governing documents but unable to obtain participation from enough owners to reach the required threshold. The proposed amendments may be strongly supported by those owners who do participate, but continued nonresponse from a portion of the membership prevents adoption. The same issue may arise with a special assessment or another action that depends on member participation or consent. In some circumstances, the difficulty may involve the association’s ability to properly call or conduct a required meeting rather than a vote.
When good-faith, repeated efforts are not enough to move an association forward, Utah law provides another option. Because homeowners associations are generally organized as nonprofit corporations, Utah Code § 16-6a-117 of the Utah Revised Nonprofit Corporation Act provides a mechanism for judicial relief when the association’s ordinary governance process has become impractical or impossible to complete.
What is Utah Code § 16-6a-117?
Section 16-6a-117 applies when it has become impractical or impossible for a nonprofit corporation to call or conduct a meeting of its members, delegates, or directors, or otherwise obtain their consent in the manner ordinarily required.
The statute allows a director, officer, delegate, or member to petition the court for relief. If relief is appropriate, the court has broad discretion to enter an order that is fair and equitable under the circumstances. Depending on the situation, that may include authorizing a meeting, written consent, or another method of obtaining the necessary approval. The court may also dispense with applicable quorum or voting thresholds.
That flexibility is what makes § 16-6a-117 so useful. But it does not mean every difficult vote or governance problem is a good candidate for a 16-6a-117 petition.
A Petition Needs a Strong Factual Record
The key question is not simply whether the association has been unsuccessful, but why. A petition should be supported by facts showing that the association has made diligent, repeated efforts to use its ordinary procedures and that continuing the same process is unlikely to resolve the problem. This helps establish that the circumstances have become impractical or impossible, as required by the statute.
Where owner participation is the issue, relevant facts may include prior voting periods, extensions, notices, meetings, emails, phone calls, direct outreach, and the actual voting results. The distinction between nonparticipation and opposition can also matter. An association that has strong support among participating owners but cannot obtain enough responses to reach the required threshold presents a different situation from one in which a significant number of owners have affirmatively opposed the proposed action.
Other cases may involve a different type of obstacle, and the relevant facts will depend on what the association is trying to accomplish and what is preventing it from doing so.
The important point is that § 16-6a-117 is not intended to replace the association’s normal procedures simply because they present challenges or require additional time and effort. The association should be able to show why continued use of those procedures has become impractical or impossible and why judicial involvement is warranted.
What Does a Petition Include, and What Does the Process Look Like?
If the circumstances support moving forward, a petition should, at a minimum, explain the applicable governance requirements, an association’s prior efforts, why continued use of the process required by the governing documents has become impractical or impossible, and the specific relief requested.
Following the filing of the petition and the required procedural steps, an association will typically submit a proposed order setting out the requested relief. The proposed order should also include a method of notice reasonably designed to reach those who would otherwise be entitled to notice of the meeting or action. The court then determines whether the requested relief is fair and equitable under the circumstances and whether to enter the order.
Section 16-6a-117 gives an association flexibility to request relief directed toward addressing the circumstances that have made it impractical or impossible to proceed via the process required by its governing documents. Where applicable, the statute is also intended to provide long-term solutions that allow an association to continue managing its affairs without having to seek relief under Section 16-6a-117 again. If relief is granted, the association may then proceed in accordance with the court’s order, including any notice, action, voting, meeting, or other requirements established by the court.
Is Your Association Ready to File?
Sometimes the answer is yes. Sometimes the better answer is not yet.
Before filing, an association should evaluate what it is trying to accomplish, what requirement is preventing it from moving forward, what has already been attempted, and whether additional reasonable efforts could make a difference.
In some cases, the association may already have a well-developed history supporting judicial relief. In others, another targeted outreach effort, owner meeting, voting extension, or better documentation may help either resolve the problem or strengthen the record for a future petition.
That evaluation is important. A petition is only as strong as the facts supporting it.
Could Section 16-6a-117 Help Your Association?
An association does not necessarily have to continue repeating a required process once the circumstances have reached the point where doing so may be impractical or impossible. At the same time, obtaining relief under § 16-6a-117 will depend on the particular facts and the record supporting the request.
Miller Harrison works with homeowners associations to evaluate whether a petition may be appropriate, including reviewing the governing documents, prior voting or outreach efforts, the factual record, and the circumstances preventing an association from moving forward. Where additional steps may strengthen the record before filing, we can also help identify and structure those efforts.
If your association has been unable to obtain a required vote or consent, establish a quorum, conduct a required meeting, or otherwise complete an important governance action, contact our office to discuss whether relief under Utah Code § 16-6a-117 may be appropriate for your association.