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.

“There’s a group of unrelated college students living in a house in our neighborhood.  Our governing documents say that houses can only be used as single-family homes.  Aren’t these roommates violating those provisions?”

The answer is no.  Unrelated roommates living together in a home are not necessarily in violation of a restriction requiring all homes to be used for single-family use.  This is because, under the law, “family” might not mean what you think it means.

Denying someone housing because they are not married to the person they are living with, not related to the person they are living with, have no children, or are living alone would violate the law.  Even though local zoning laws and HOA governing documents will usually use the term “single family” (or “one family,” which is common in Utah), they are not necessarily referring to actual families.  This is one of those times when legal speak doesn’t follow common sense.

The legal definition of “family” varies a little depending on the body of law you are dealing with. For instance, in Utah, state statutes do not define the term, but individual municipalities do.  Although the definitions used by different municipalities vary, they are generally similar because they all rely on the same case law and codified law that have developed on both federal and state levels over time. The City of Orem provides a good example:

Family shall mean one of the following groups of individuals, but not more than one at the same time: (1) an individual living alone; or (2) two or more people all of whom are related to one designated occupant of the dwelling by blood, marriage, adoption, or legal guardianship and their foster children and up to two other unrelated persons who do not pay rent and are not the primary occupant(s) of the dwelling; or (3) up to three related or unrelated individuals who live and cook together as a single housekeeping unit; or (4) two unrelated individuals and any children of either of them living as a single-housekeeping unit; (5) up to six unrelated individuals living in the Student Housing Overlay zone or PD-21 zone; or (6) a number of unrelated individuals as may be specifically indicated in a particular PD zone.

For purposes of this section, primary occupant(s) is defined as the owner of the dwelling (owner is as defined in Section 22-6-9(I)(2)) and all persons related to the owner, or, if the owner does not live in the dwelling, the primary occupant(s)shall mean the person(s) to whom the owner has leased the dwelling and all persons related to the lessee. The definition of family includes up to two guests if the guests live and cook together with the family in a single dwelling unit and do not pay rent or give other consideration for the privilege of staying with the family. A guest under this section is defined as a person who stays with a family for a period of less than thirty days within any rolling one year period and does not utilize the dwelling as a legal address for any purpose. For purposes of the definition of family, the term “related” shall mean a spouse, parent, child, grandparent, grandchild, brother, sister, uncle, aunt, nephew, niece, great-grandparent, and great-grandchild. The term “related” does not include other, more distant relationships such as cousins.

As stated in Orem’s definition, the term “family” can refer to a variety of groups including any group of 3 or less unrelated persons who live and cook together as a single housekeeping unit.

The bottom line for community association boards is, when you see the term “single family” in your governing documents, make sure you understand exactly what it is referring to.  Go online and become familiar with your municipality’s definition (or have your attorney explain it to you). The best practice is to have a definition for “family” or “single family” in your governing documents that is consistent with the definition used by your local municipality, or just have your documents refer to the local ordinance.  Your documents should also contain some detail about what constitutes a housing use violation.  For instance, although you usually can’t deny housing based on the relationship between residents, you may restrict how many people live in a unit based on legitimate health and safety considerations.  If your governing documents do not include these provisions and details, you should consider amending to include them.

Utah homeowners associations have long used reinvestment fees as a way to generate revenue when property is sold to help fund the costs of maintaining community amenities and infrastructure. The Utah Legislature recently made changes to how reinvestment fees may be established, calculated, and used.

What Is a Reinvestment Fee?

A reinvestment fee is a fee imposed on a buyer or seller when real property within a common-interest community is transferred. Under Utah Code § 57-1-46, the fee must be dedicated to benefiting the common areas or the community, including expenses associated with infrastructure, amenities, open space, recreation facilities, community programming, association expenses, and certain capital-intensive infrastructure maintenance.

Reinvestment fees are different from ordinary HOA transfer or administrative fees. A transfer-related administrative fee is generally intended to cover the association’s costs associated with processing a sale, while a reinvestment fee is a covenant-based charge intended to provide funding for the community itself.

New Cap on Reinvestment Fees

For most associations, the maximum reinvestment fee that can be charged is 0.5% of the value of the property. However, this year the Legislature created a new category called a “low-amenity association.” A low-amenity association is generally an association consisting exclusively of detached single-family homes that does not provide capital-intensive infrastructure maintenance services to its members. For these associations, the cap is reduced to 0.25% of the property’s value.

For example, on a $500,000 home:

• A typical qualifying association could charge up to $2,500.
• A low-amenity association could only charge up to $1,250.

The statutory caps do not apply to property located within a “large master planned development” (i.e. more than 500 acres or 500 homes).

At Least 50% Must Go Into Reserves

The new law also changes how reinvestment-fee revenue must be handled. Unless the association is a large master planned development, at least 50% of each reinvestment fee must be deposited into reserve funds. This change is particularly important for communities that have historically treated reinvestment-fee revenue as general operating revenue. Going forward, associations subject to the requirement should establish accounting procedures that clearly identify the portion of reinvestment-fee revenue that must be reserved for future capital needs.

Member Approval Is Now Required

The 2026 amendments also impose a new approval requirement. Beginning May 6, 2026, an association may not impose a reinvestment fee unless:

1. The fee is authorized by the declaration or a reinvestment fee covenant; and
2. A majority of the association’s voting interests, or a greater percentage required by the governing documents, approves the fee.

After the required approval, the association may establish the amount of the fee only in accordance with the declaration or reinvestment fee covenant and applicable notice requirements.

Owners Can Also Vote to Remove or Amend the Fee

The new statute gives association members a mechanism to challenge or modify an existing reinvestment fee. Members may call a special meeting to consider removing or amending the fee. At least 51% of the voting interests must attend and vote, and a majority of those voting must approve the change.

What Should Utah HOAs Do Now?

The 2026 amendments make it important for HOAs, condominium associations, and developers to review their existing reinvestment-fee provisions. In particular, associations should determine:

• Whether the reinvestment fee is properly authorized in the recorded governing documents;
• Whether a separate statutory notice of the reinvestment-fee covenant has been recorded;
• Whether the association qualifies as a low-amenity association;
• Whether the existing fee exceeds the applicable statutory cap;
• Whether the association’s accounting procedures properly segregate the required reserve contribution; and
• Whether the association has obtained the member approval when required.

For new developments, these changes should also be considered when drafting declarations, reinvestment fee covenants, budgets, and reserve plans. Reinvestment fees can provide a valuable source of long-term funding, particularly for communities with substantial amenities or capital-intensive infrastructure, but the covenant now needs to be structured with the new statutory provisions in mind.

Imagine this: Your homeowners association, let’s call it Whispering Pines Lodge HOA, has been operating smoothly for years. But recently, a board member does a quick internet search and discovers a shiny new website—whisperingpineslodge.com—run by a third-party property management company or a local real estate agent renting out units in your community.

Suddenly, your residents and potential buyers are confused. Is this the official HOA website? Who is actually in charge here?

Before you brace yourselves for aggressive (and expensive) litigation, let’s break down the legal realities of HOA trademarks and look at some practical, cost-effective steps to protect your community’s identity.

The Basics: Common Law vs. Federal Trademarks

First things first. Does an HOA need a federal trademark to protect their name? The short answer is: No, but it’s complicated.

Under U.S. law, a trademark is acquired the moment a mark (like your HOA’s name or logo) is used in commerce. This grants the owner the right to prevent others from using confusingly similar marks. This is called a “common law” trademark, and it apply to marks currently used within a specific geographic area. You don’t actually need to file paperwork in Washington D.C. to get this basic protection.

Because your HOA has likely used its name since the day the Declaration was recorded, the Association almost certainly holds common law trademark rights over its full, official name in the local area.

If a court were to look at a potential infringement, they would evaluate whether the competing use causes a “likelihood of consumer confusion,” dilutes the value of your name, or implies that the HOA has authorized or endorsed the third party. This is also the HOA’s concern; members may stumble onto copies governing documents or rules on a third-party website and be led astray by outdated information.

The “Gray Area” of Generic, Common Words

Here’s where things get tricky. While you might own the rights to your full HOA name, claiming exclusive rights to individual, common words is an uphill battle.

If your community is called Whispering Pines Lodge, each of the individual words, “Whispering,” “Pines,” and “Lodge” are incredibly common. These are words used in everyday speech, so legally preventing a third party from using those individual words is very difficult. Combining multiple words is a good start at becoming more unique. Whispering Pines Lodge puts you in a legal gray area. The combination of these words is a little less common, but someone is likely using a similar name somewhere on the internet. However, as an existing HOA using the name in the area, you will have some protection. Pro tip: the more unique the name, the easier to protect.

Domains are Not Trademarks

It’s easy to assume that if you own the trademark, you should automatically own the domain. Unfortunately, the internet doesn’t work that way.

In a legal sense, a domain name is treated as a form of intangible property; it’s just a digital address. While a trademark can be used as a domain, you generally cannot stop someone else from registering a domain name that incorporates common words, as long as they aren’t using it to actively deceive consumers or sell counterfeit goods.

While the HOA could try to buy up every competing domain name, paying to acquire and maintain a bunch of dormant websites is rarely a prudent use of association funds.

Practical Remedies That Won’t Break the Bank

If an aggressive lawsuit isn’t the answer, what should an HOA do when a third party is piggybacking off their name? Here is the Miller Harrison approach:

1. Send a Letter

If online confusion is a real concern, we recommend sending a formal letter to the third-party property managers or agents. Trademark law rewards those who actively prevent others from using their mark. The letter will officially request that they modify their website to clarify they are notaffiliated with the Association. Usually, adding a simple disclaimer, providing a direct link to the official HOA site, or explicitly identifying themselves as a third-party manager is enough to solve the problem.

2. Leverage SEO Instead of Lawsuits.

If your HOA website is buried on page three of Google for the search term “Whispering Pines Lodge Utah” but pulls up first for “Whispering Pines Lodge Utah HOA”, the most practical solution is Search Engine Optimization (SEO). Investing a little time or money into improving your official site’s SEO will ensure it pops up first when owners are looking for you. It’s can often be much cheaper to outrank the competition on Google than it is to out-litigate them in court.

3. Consider Federal Registration (If It Makes Sense)

Federal trademark registration remains an option. While not strictly necessary, it provides stronger enforcement rights across the entire country and puts the public on official notice of your ownership. The process involves an application, a review period by the USPTO, and a public opposition period. Even then, it’s not a magic shield. It only protects you in specific categories of commerce and doesn’t give you a monopoly on generic words. Still, if you want to solidify your priority, it’s a tool worth considering.

The Bottom Line

When it comes to HOA name confusion, you have rights, but you also have options that don’t require draining your reserve accounts on legal fees.

If your community is dealing with digital doppelgängers, a well-drafted letter and a smart web strategy are usually your best bets. If you need help drafting that letter, evaluating your common law rights, or applying for a federal trademark, the team at Miller Harrison is here to help. Contact us today to keep your HOA’s good name exactly where it belongs—with you.

If you’re reading this and your HOA’s records consist of an envelope of receipts, loose dollars, and a picture of the Board President from 2001, keep reading. If you’re reading this and your HOA’s records are dialed in, neatly sorted, alphabetized, color-coded, and digitally easy to find, keep reading. You see, no matter the state of your HOA’s records, the dreaded records request will come for us all. Don’t be scared. We just need to make sure you’re ready.

An Owner’s Requirements for a Records Request

Owners want to ensure that their HOA is a well-oiled machine. In order to get access to certain records, an owner must submit a properly formatted written request. A casual verbal comment at a board meeting or a vague text to a board member doesn’t trigger the statutory penalties. Under Utah Code § 57-8a-227(3)(a), the owner’s written request must explicitly include:

• The Association’s Name
• The Owner’s Full Name
• The Property Address
• The Owner’s Email Address
• A Clear Description of the specific documents requested

Additionally, under § 57-8a-227(3)(b), the owner must specify their election on how they want to receive or view the records. If a request is missing these core statutory elements, a board can ask the owner to resubmit a compliant written request before spending association resources compiling documents. Whether a request stems from genuine curiosity or an escalating dispute over vendor contracts, ignoring or improperly handling a member’s demand for documents can quickly turn an administrative minor hassle into a costly legal headache. Utah Code Section 57-8a-227 sets the ground rules for community associations that has mostly been straightforward. But a notable shift from the Utah HOA Ombudsman’s Office has shifted the landscape on what associations must hand over.

Why HOAs Must Respond and How Fast

Under Utah Code § 57-8a-227, homeowners have a clear statutory right to inspect and copy core association documents.

• The Timeline: An association has 10 business days from receipt of a written request to comply.
• The Core Documents: The statutory list includes recorded CC&Rs, bylaws, rules, approved meeting minutes (past 3 years), insurance certificates, reserve analyses, and annual financial statements.

Failing to respond within the statutory window is rarely a winning strategy:

1. For failing to provide core website-required documents (governing documents, recent minutes, and annual budgets/financials), the HOA incurs a mandatory $25 per day penalty paid to the owner, starting on the 11th business day.
2. If an owner sends a 10-day cure notice and the board fails to fix the issue, the owner can file a lawsuit. If they win, the court can order production, award actual damages (or $1,000, whichever is greater), and force the HOA to pay the owner’s attorney fees.

The Ombudsman’s Plot Twist

While § 57-8a-227 requires associations to provide “appropriate accounting records” under Utah Code § 16-6a-1601(2), the term itself has long been a grey area. Previously, many associations operated under the assumption that providing high-level financial summary reports—like annual profit-and-loss statements and balance sheets—was enough to satisfy the statute. However, in Advisory Opinion 2026-28 (issued July 14, 2026), the Utah HOA Ombudsman expressly reconsidered its prior position and introduced significant clarity—and confusion—for board operations:

• Financial Statements ≠ Accounting Records: The Ombudsman clarified that high-level summary reports and “appropriate accounting records” are distinctly different.
• Executed Contracts & Invoices MUST Be Produced: The Ombudsman ruled that transaction-level source documents used to build the budget or verify financial statements—including executed vendor contracts, invoices, receipts, and general ledgers—are “appropriate accounting records” that an HOA must provide upon request.
• Where the Line Is Drawn: The Ombudsman drew a firm boundary around unexecuted bids and vendor proposals. Drafts, unaccepted bids, or rejected proposals that never created a financial obligation for the association do not constitute accounting records and do not have to be disclosed.

What This Means for Your Board’s Best Practices

This shift means boards cannot simply point an owner to an online budget spreadsheet and consider the matter closed if the owner asks to see the underlying vendor contracts supporting those budget line items.

• To protect your association, boards should adopt these best practices immediately:
• Maintain neat, auditable digital records of all executed contracts, paid invoices, and bank statements alongside your monthly financials.
• Store unaccepted vendor bids in separate administrative files so they aren’t accidentally commingled or improperly disclosed.
• Date-stamp every written request upon arrival to ensure your 10-business-day compliance clock doesn’t run out unnoticed.

If your association has received a complex records request or wants to audit its document retention policy under the latest Utah rulings, reach out to the legal team at Miller Harrison today. We’ll help keep your books clean, your responses timely, and your board out of the crosshairs.

In our last article, we discussed the different ways Utah HOAs and condominium associations can fund major repairs, including operating funds, reserves, and special assessments. When a board determines that a special assessment is necessary, two important questions usually follow:

1. How do we make sure the assessment is legally valid?
2. Can we fund the project now without requiring every owner to come up with a large lump sum payment immediately?

The answers to those questions depend on Utah law and the association’s governing documents. The declaration and bylaws may determine whether the board can approve the assessment on its own or whether an owner vote is required. The governing documents and Utah law also impose specific requirements for notice, voting, allocation of the assessment, and payment. For larger projects, an association loan can also be a useful tool. When structured properly, a loan can allow the association to complete needed work promptly while giving owners who need additional time the ability to pay their assessments over a longer period. But both pieces need to be done correctly. An improperly authorized assessment can create collection and enforcement problems. Poorly negotiated loan documents can also give a lender rights that are unnecessarily broad or require the board to make commitments that exceed its authority under the governing documents.

Making Sure the Special Assessment Is Properly Authorized

Before imposing a significant special assessment, the board should answer several basic questions such as:

1. Does the board have authority to approve the assessment, or is an owner vote required?
2. How must the assessment be allocated among the owners?
3. Are there limits on the amount, timing, or purpose of the assessment?
4. 4. What meeting, notice, and voting procedures apply?

Some governing documents allow the board to impose a special assessment without an owner vote. Others require owner approval, particularly for assessments above a certain amount or for particular types of expenses. The board should also verify how the cost must be divided. An equal division among lots or units may seem fair, but the declaration may require the expense to be allocated according to ownership interests, percentages, unit types, or another formula. Utah law also imposes requirements concerning association meetings and budgets, and the governing documents may add additional procedures. Depending on how the project is funded and the assessment is structured, those requirements may need to be considered as part of the process. For a significant assessment, clear communication with owners should begin before the assessment is approved. No owner wants to be surprised by a large, unexpected bill. The board should give owners reasonable notice of the proposed project and assessment, explain why the work is needed and how the proposed assessment will be calculated, and provide any meeting or voting information required by the governing documents or Utah law. Once the assessment is properly approved, the board should adopt a written resolution identifying the project, the total amount being assessed, each owner’s share, payment deadlines, available payment options, and how any association financing will work. Providing clear information before the assessment is adopted, followed by clear documentation after approval, can reduce confusion, owner frustration, and disputes over the assessment.

Using an Association Loan to Give Owners More Time to Pay

One of the practical challenges with a large special assessment is that not every owner has substantial cash readily available. An association loan can sometimes make the assessment more manageable. Instead of waiting for every owner to pay the entire assessment before beginning the project, the association may borrow the funds needed to complete the work and use assessment payments to repay the loan. Owners who are able to pay their assessment in full may be permitted to do so, while owners who need additional time may be offered a longer payment schedule. This approach can be particularly useful when repairs cannot reasonably wait but the board is concerned about the financial impact of a large assessment on individual owners. It can give owners more flexibility without forcing the association to delay necessary work while it waits for assessment payments to come in. Before offering a payment over time option, the board should determine the following:

1. Whether owners may prepay their share.
2. How interest and financing costs will be allocated.
3. Whether owners who pay immediately can avoid some or all financing costs.
4. What happens to an unpaid assessment balance if an owner sells.
5. What happens if an owner fails to make the required payments.

The assessment documents and the loan documents should address these issues consistently.

Be Careful About What the Lender Is Asking For

A lender’s loan documents are naturally written to protect the lender. That does not mean every provision is appropriate for every association. Association loan agreements may contain restrictions affecting the association’s financial decisions for years after the loan closes. A lender may seek provisions requiring the association to maintain or increase assessments, limiting the use of reserve funds, restricting additional borrowing or expenditures, assigning assessment income, or requiring lender consent before certain financial decisions are made. Some of those protections may be reasonable but other lender protections may go considerably further than necessary. The more important question is whether the board actually has the authority to make the promises contained in the loan documents. If the declaration requires owner approval for certain assessment decisions, for example, the board should be cautious about signing an agreement promising the lender that the board will make those decisions on its own. That is why reviewing an association loan should involve more than comparing interest rates and repayment terms. The lender’s covenants, collateral provisions, assignment of assessment income, consent rights, default remedies, and other restrictions should be compared against the association’s governing documents before the loan is signed.

Getting It Right Before the Documents Are Signed

Special assessments are difficult for owners even when everyone agrees that the underlying project is necessary. A board is in a much stronger position when it can clearly explain why the assessment is needed, how each owner’s share was calculated, how the assessment was authorized, and what payment options are available. It is also far easier to correct a problem with a proposed assessment or negotiate an unreasonable loan provision before the assessment is imposed or the loan closes. Once the assessment has been adopted or the financing documents have been signed, the association’s options may be much more limited. Miller Harrison works with Utah HOA and condominium boards throughout this process. We review governing documents, identify the approval procedures required for special assessments, prepare assessment resolutions and owner notices, and review and negotiate association loan documents. If your association is considering a major repair project, special assessment, or association loan, involving counsel early can help ensure that the assessment and financing are structured together, properly authorized, and clearly communicated before the board moves forward. This article is provided for general informational purposes only and is not legal advice. The requirements applicable to a particular HOA or condominium association depend on Utah law and the association’s specific declaration, bylaws, articles, and other governing documents. Associations should consult qualified legal counsel regarding their particular circumstances.

HOA or Condo board members may have anxiety about making repairs to association common area and just as importantly—how to fund those repairs. In reality, many community associations may be apprehensive to get a contractor or vendor out and make repairs, large or small. What results is that maintenance is delayed until it’s too late, major repairs must be made, and the community has to spend more than they would have from the get-go. Why aren’t repairs made proactively? Why isn’t the up-keep better? It’s all about the money.

Understanding how to properly fund repairs isn’t just good governance; it’s a legal responsibility under Utah law that protects your community’s property values, allows associations to plan for the future, and prepare financially for emergencies. Plus, this keeps association members happy with a well-maintained community.

This guide breaks down the three primary financial mechanisms available to your association and the board: (1) annual budgets, (2) reserve accounts, and (3) special assessments.

What is the Annual Budget (or Operating Budget)?

A board may think that the operating budget is a catch-all for any expense that arises. But an operating budget must be more—it must be dedicated to the predictable, ongoing administration of the association. Utah law requires boards to prepare and adopt a budget at least annually and present it to the members. See Utah Code § 57-8-7.6 and § 57-8a-215.

What repairs can this budget be used for?

The operating budget is designed for day-to-day operations and routine upkeep. It covers regular cleaning, utilities, and minor, predictable repairs. For example, if a landscaper needs to be paid for upkeep, a sprinkler system needs adjusting, or a broken lobby door lock needs replacement, those funds come from the operating budget.

What is the Reserve Account?

Many boards think reserve funding is simple: save extra money, spend it when you need it. There’s actually more to it. By law, reserve funds can only be used for specific repairs (explained below). Boards must conduct a formal reserve analysis every six years and review or update it every three years. Furthermore, the board is legally required to maintain reserve funds in a separate account.

What repairs can the reserve be used for?

Utah law dictates that reserve funds are strictly for repairing, replacing, or restoring common areas and facilities that have a useful life of 3 years or more, and a remaining useful life of less than 30 years that cannot reasonably be funded from the annual or operating budget (such as, roofs, asphalt, or exterior siding). Pro-tip: A low-hanging fruit for a cost-effective repair from the reserve account could be new paint on the association’s exterior. Check out the podcast “HOA Insights: Common Sense for Common Areas” Episode 161 for more.

What are special assessments?

Even with the best operating budget and fully funded reserves, disasters happen and unforeseen capital deficits arise. This could be a major concrete repair after years of neglect or replacement of roofing after a storm. Special assessments are one-time additional charges levied on a lot or unit owner to cover these major, unfunded community repairs.

What is the role an attorney can play in advising boards on budgeting?

When there is a funding shortfall or a scary major repair, boards have many problem-solving tools at their disposal.

An attorney plays a vital role in interpreting Utah law and the Declaration or CC&Rs, advising boards on the annual budgets, budget approval, establishing and maintaining reserve accounts, the exact voting procedures required to pass a special assessment, and preventing the illegal commingling of funds. Furthermore, when owners fail to pay these carefully planned assessments, an attorney ensures that collection efforts, including the perfection of liens and potential foreclosures, are executed legally and effectively.

So, things did not turn out at trial the way you hoped. We’re sorry to hear that. But your attorneys have told you that you have at least one card left to play: you can appeal to a higher court! Maybe they’re even saying that you’re as sure to win on appeal as anyone can be in the great crucible of civil litigation. After spending so much of your time and money losing at trial, appealing can seem like a no-brainer—nothing more than the routine next step defeated parties take to finally get to the right result. And perhaps the typical appellate process does not sound like a big deal to you either. An opening brief, a response brief, a reply brief, and then oral arguments? Isn’t that basically the same motion practice you’ve been dealing with the whole case, just with beefier briefing?

Why not take at least one more shot at justice?

That is a deceptively complicated question that depends heavily on the circumstances and issues of your case. Suffice to say that there are a lot of reasons why an appeal could be a bad idea. For one, most appeals fail. After all, there are reasons why the case turned out the way it did and usually it is not because of errors that are significant enough for the appellate court to reverse the outcome. See Utah R. Civ. P. 61 (“Harmless error”). For another, it can be hard to know if your decision has been overly influenced by the sunk cost fallacy. Even if your attorneys are encouraging you to appeal, how do you know you’re not throwing good money after bad?

Fortunately, there is at least one metric to help you determine whether you’re in for a relatively cheap appeal that has a decent chance of success, or a more expensive appeal that is very difficult to win. Ask your attorneys what your “issues on appeal” would be and what the “standards of review” are for those issues (and what will happen if you win so that you know you are appealing a material issue). Their answers can generally be grouped into three categories, and the more expensive an issue is to appeal, the less likely it is to succeed:

1. Appealing a “conclusion of law” that is reviewed for “correctness” is generally the cheapest issue to present on appeal with the greatest chance of success. See Smith v. Volkswagen SouthTowne, Inc., 2022 UT 29, ¶ 42, 513 P.3d 729. On such issues, the appellate court gives the trial court’s reasoning “no deference” and considers the legal question as if for the first time. Id. Appealing such issues thus gives appellants a true second chance at persuading a court to interpret the law their way. Appeals solely on legal conclusions can also take significantly fewer hours worked (and accordingly, fewer hours billed by your attorneys) than trial did because there is neither the need nor the opportunity to develop further evidence on appeal. Everyone, including the appellate court itself, is stuck with the same frozen record and a purely legal issue often does not require much review of that record.
2. But appealing a discretionary decision by the trial court is a tall order. Such decisions are reviewed for “abuse,” and proving abuse of discretion is a “heavy burden” that will only succeed if you persuade the appellate court that “no reasonable person would take the view adopted by the trial court.” Goggin v. Goggin, 2013 UT 16, ¶ 26, 299 P.3d 1079 (emphasis added). While abuse can be shown in multiple ways—e.g., “(1) there was a misunderstanding or misapplication of the law resulting in substantial and prejudicial error; (2) the evidence clearly preponderated against the finding; or (3) such a serious inequity has resulted as to manifest a clear abuse of discretion,” id. ¶ 44—it is worth keeping in mind that the ultimate question the appellate court is asking is if no reasonable person would agree with the trial court’s decision. Believe it or not, it is pretty uncommon for someone appointed to be a judge to make a totally unreasonable decision. And trying to persuade the appellate court that has happened in your case can require more extensive research, creative brainstorming, and refined drafting (i.e., more time and money) than challenging a pure conclusion of law does.
3. Finally, challenging findings of fact on appeal is both exceedingly difficult and the most expensive. Findings of fact, by either the jury or the court in a bench trial, “will not be disturbed unless they are clearly erroneous.” Kimball v. Kimball, 2009 UT App 233, ¶ 14, 217 P.3d 733. “A trial court’s factual determinations are clearly erroneous only if they are in conflict with the clear weight of the evidence, or if this court has a definite and firm conviction that a mistake has been made.” Id. (quotation simplified). To show clear error, a party should “marshal”—that is, summarize on appeal—the evidence supporting the challenged finding and then show why it is legally insufficient. Horning v. Labor Comm’n, 2023 UT App 30, ¶ 31, 529 P.3d 352 (“[A]n appellant failing to marshal all relevant evidence presented at trial which tends to support the findings and demonstrate why the findings are clearly erroneous will almost certainly fail to carry their burden of persuasion on appeal.” (emphasis added)). Unlike challenging a pure conclusion of law, challenging a finding of fact thus requires comprehensive review of the record and detailed drafting to marshal the supporting evidence and all the time and money that entails, which will then usually fail anyway. “The pill that is hard for many appellants to swallow is that if there is evidence supporting a finding, absent a legal problem—a ‘fatal flaw’—with that evidence, the finding will stand, even though there is ample record evidence that would have supported contrary findings.” Kimball v. Kimball, 2009 UT App 233, ¶ 20 n.5, 217 P.3d 733 (also indicating that the appellate courts will not reweigh the evidence on appeal). For this reason, some appellate attorneys will even generally refuse to challenge findings of fact because the odds of prevailing are so low and they do not want to bill their clients the significant fees needed to, ultimately, lose anyway. Ironically, these are often the kind of issues that parties are most passionate about because they truly know for a fact that the jury or court got it wrong, but just because they believed the wrong side does not mean the evidence will be legally insufficient to support their findings. You should carefully consider challenging findings of fact on appeal as objectively as possible. If your attorneys are willing or eager to challenge findings of fact on appeal, ask them to detail specifically how they are going to show that the supporting evidence is legally insufficient to support the challenged findings.

Ultimately, the decision of whether to appeal or not should be a sober financial decision based on the balance of risk vs. potential reward, which depends heavily on the kinds of issues you intend to present on appeal. We hope this information is helpful in determining your next steps after an unsuccessful trial.

Litigation can feel like it has swallowed your whole world, and the financial stakes may be life-changing. Nonetheless, please remember that you have a life outside of your case and even after a bitter defeat, there will be a morning after and the hopefully chance to adapt to any new circumstances you face.

By Amy C. Walker

I. Where Zoning Comes From

You just bought a piece of property here in the United States and the State of Utah. You have big dreams about what you can do with that property. What’s the next step?

At common law, a landowner’s baseline right is to use property freely, and both constitutions protect property as a fundamental interest. The Utah Constitution guarantees the inherent and inalienable right “to acquire, possess and protect property.” Utah Const. art. I, § 1. It also provides that private property may not be taken or damaged for public use without just compensation. Utah Const. art. I, § 22. The federal counterparts are the Takings Clause of the Fifth Amendment and the Due Process Clause of the Fourteenth Amendment. U.S. Const. amend. V; U.S. Const. amend. XIV, § 1.

But neither constitution guarantees unrestricted use. Your right to use your property is subject to the laws that govern your property. So which laws are those?

Well, that depends on your zoning. Zoning authority comes from the state. Local governments can only regulate land use to the extent the State Legislature and federal government have authorized them to. Zoning survived its constitutional test in Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), where the U.S. Supreme Court upheld comprehensive zoning against a due process challenge. But Euclid did not create zoning authority.

In Utah, zoning authorization comes from LUDMA, which is shorthand for both the County Land Use, Development, and Management Act, Utah Code Title 17, Chapter 79, and the Municipal Land Use, Development, and Management Act, Utah Code Title 10, Chapter 20. LUDMA balances the right of property owners to develop their own property against the right of counties, cities, and towns to govern how their jurisdictions develop through zoning law.

II. What Your Zoning Allows

Your local governing body is the legislative body that sets the zoning for its jurisdiction through zoning ordinances. Zoning ordinances include the map or maps that show which zone your property is in, as well as the rules that say what is allowed in your zone. Typically, these will specify permitted uses, conditional uses, housing types, lot sizes and density, setbacks, open space requirements, and anything else your local government’s representatives think makes sense for the people who live there.

So, what can you do with your land? Whatever the zoning ordinances allow. And here LUDMA puts a thumb on the scale in your favor. A land use authority must apply the plain language of its land use regulations, and if a regulation does not plainly restrict a land use application, the authority must interpret and apply it to favor the application. Utah Code § 10-20-901(2); Utah Code § 17-79-801(2). Utah courts say the same thing: because zoning ordinances are in derogation of a property owner’s common-law right to unrestricted use, provisions restricting property uses are strictly construed in favor of the property owner. Patterson v. Utah County Bd. of Adjustment, 893 P.2d 602, 606 (Utah Ct. App. 1995).

If the ordinances look good, then before you build you’ll typically need a land use application and a building permit. And in some cases, subdivision or plat approval. Subdivisions are needed if you want to divide your property into more than one parcel or if your project otherwise requires it. And an applicant whose application conforms to the ordinance in effect at the time of submission is generally entitled to approval. Western Land Equities, Inc. v. City of Logan, 617 P.2d 388 (Utah 1980).

If you aren’t sure, most cities allow an initial review meeting on your project with the zoning administrator or community development director. They can point you in the right direction and often give you insight into the kinds of projects your local government likes and doesn’t like.

Applications also differ in how much discretion the local government has. Some are administrative approvals, which means that as long as you cross your t’s and dot your i’s, you’re entitled to approval. Others are discretionary, which is where the land use authority has room for a judgment call. A conditional use is the classic example. It’s a use that is allowed, but only if you can meet the conditions your local government imposes. Those conditions must be tied to codified standards, but they often include consistency with the general plan, demonstrating that you won’t harm your neighbors, and showing that traffic concerns can be mitigated. Importantly, a conditional use must be approved if the reasonably anticipated detrimental effects can be substantially mitigated. Utah Code § 10-20-506.

Legislative solutions can include asking for a rezone, requesting changes to the code, or entering into a development agreement. However, these are the hardest, as your only real legally protected right in the legislative process is at the ballot box through voting in your officials and, in some cases, referendum. Your local government can simply decline to change the code. And when it does change the code, it can do so for almost any reason, so long as the ordinance is constitutional, does not conflict with state law, and it is reasonably debatable that the ordinance serves a legitimate public purpose. Once your local representatives have enacted a lawful ordinance, it remains in effect until they decide to change it.

III. Getting Help

Land use approvals are complicated in practice. Which category your application falls into, what the ordinance actually says, and how quickly you have to act if something goes wrong vary from place to place. If you’re running into issues with your local governing body, or you’d like help getting your project approved, our office can help.

This post is general information, not legal advice. Amy Walker is an attorney at Miller Harrison Law in Murray, Utah, practicing land use, real estate development, and civil litigation. She holds a Masters in Real Estate Development in addition to her law degree and represents developers, municipalities, HOAs, and property owners throughout the entitlement process.

THIS LAND IS MY LAND; IT ISN’T YOUR LAND

Navigating Boundary by Acquiescence in Utah

August 12, 2026

Neighbors can be great friends or fantastic enemies, and getting into a fight over boundaries rarely improves those sometimes delicate diplomatic relations with your would-be friends just over the fence.

First, a Word About Neighbors

While nothing in this post constitutes legal advice (you should seek out your own legal counsel), at my firm we frequently find ourselves telling our clients to carefully consider the cost of any dispute before they jump in headfirst.  Sometimes, trouble is unavoidable, and we recognize that.  But litigating a full boundary dispute can be a lengthy and a costly process – in terms of more than just money!  Even if you win, living next to a resentful neighbor can put a significant damper on your enjoyment of your home.  Something to bear in mind.

Hopefully the information in this post will help avoid disputes by providing a better understanding of how boundary lines can shift over time under certain circumstances.

Boundary by Acquiescence

Many people in Utah have some understanding of the doctrine of boundary by acquiescence in that they are aware, at least to some extent, of the fact that boundaries between properties can change over time depending on how the properties are treated.

For a legal boundary line to change under boundary by acquiescence, the circumstances that have to be present are:

1. The properties in question have to be adjoining
2. There has to be a visible line that is different from the actual legal boundary, and:
3. That non-boundary visible line has to have been treated as the real boundary line for a period of at least twenty years.

If any one of these isn’t present, then there is no boundary by acquiescence.  There are a couple bits of additional nuance to this doctrine that are worth discussing briefly here.

Let’s talk about the visible boundary line requirement first.

Visible Line

Aside from being visible, the line of the would-be boundary has to have “permanence, stability and a definite location.”  This definition of what constitutes a “visible line” for the purposes of boundary by acquiescence is actually fairly liberal, but it does have limits.

Specifically, “permanence” does not mean, for example, that a fence that would otherwise satisfy the visible line requirement has to have been in place for twenty or more years as long as any replacement fence (or line) is in the exact same place.  In other words, it’s fine to have replaced the fence/erstwhile alternative boundary line, as long as something else that is also visible, having a definite location, takes its place.

A useful case to remember is the Fuoco case.  In Fuoco v. Williams, the court refused to say that an irrigation ditch was a visible boundary line.  Why not?  Well, among other things, the ditch itself would change locations periodically because it would erode and then it would be re-dug at a slightly different location periodically.  This failed the “permanence” requirement for a visible line.

Twenty Years and Tacking

We frequently see people who are unaware of the concept of tacking, and it’s something to you need to be aware of when talking about boundary by acquiescence.  For instance, your neighbor may come to you and assert that the fence that’s between your properties is the new boundary line.  And you might think that he’s completely and obviously in the wrong because you know that one of the requirements is that the fence has to have been treated as the boundary for twenty years or more and that neighbor only moved in last July.  It’s a good observation, but it might surprise you to know that you still might be wrong and your neighbor might be right, even though he only just arrived.  Why?  Because of the legal concept of tacking.

Tacking means that the twenty years of the visible line’s treatment as a boundary can be cumulative between successive owners – or, in other words, if the person who sold it to your neighbor treated the line as the boundary for fifteen years and your new neighbor treated it as the boundary for five years, the twenty year standard can be met because a court will just add up the years between successive neighbors.

Tacit Acquiescence

Another common misconception is what people infer from the word “acquiescence”.  Seeing the word “acquiescence” conjures images of two people, leaning over a mutual fence, talking about their boundary and then smiling as they shake hands in agreement – literally verbally acquiescing to a new boundary.

In this context though, acquiescence is something very different.   In fact, with this legal doctrine, acquiescence is almost always inferred from behavior over time, and isn’t verbal or written.  Most often, what happens is that both sides just quietly treat something (a visible line) as the boundary for a long time (twenty years), and that can satisfy the acquiescence portion of this doctrine.

What does treating the visible line as the boundary mean, exactly?  How does one accomplish this in a way that satisfies the doctrine?  It means that each side is making use of the property up to the visible line in a way that is consistent with the nature of the property.  When you think of a typical example of acquiescence, think of something like this: two residential neighbors in a typical suburb mowing their lawns up to the visible line, installing sprinklers, and/or weeding up to the line, or two agricultural neighbors plowing or irrigating up to the visible line, all for a period of twenty years or more.

What happens if, during the twenty year period, a fight breaks out about the would-be boundary line?  Well, that should disprove acquiescence, just the same as one or both neighbors acting like the visible line wasn’t the boundary (ex: mowing or installing sprinklers beyond the visible line).

Uncertainty, and Its Importance

One thing that even some lawyers don’t realize about boundary by acquiescence, is that – in addition to the requirements discussed above – the neighbors can’t actually know where the actual, legal, surveyed boundary is in order for the doctrine to apply.

This may sound strange, but many people don’t know where their actual legally surveyed boundaries are (particularly in older neighborhoods).  Learning where they are can thwart boundary by acquiescence.

This means that, if, during the twenty year acquiescence period, one neighbor has a survey done and acquires knowledge of the real location of the actual boundary line, they can no longer acquiesce in the visible line as an alternative and potentially new boundary.

Birthday Cake and the Complications of Q-2 (It’s Not a Band)

In Q-2, LLC v. Hughes, the Utah Supreme Court pondered when, exactly, title to property acquired through boundary by acquiescence changes hands.  Is it when the plaintiff takes his or her boundary by acquiescence case to court, and the judge rules in the plaintiff’s favor, or does it occur when all the elements are met?

Well, you may or may not be interested to learn that the Court held that it was when the elements are met.  We’ll call this point in time, the “Birthday” of the new boundary line – the date on which title to a strip of property legally changes hands under Q-2.  This seemingly innocuous clarification by a well-meaning Court has had some far-reaching effects.  Let’s talk a bit more about Birthdays.

When you’re considering a situation in which a change in boundary under boundary by acquiescence may have occurred, you need to consider the Birthday very carefully, because what happens in many, many cases, is that title to a strip of property changes hands and the new owner doesn’t even know it.  Therein lies the rub: this perhaps understandably ignorant owner of a newly minted mini-parcel will usually just sell his or her parcel to a new buyer and then move on with their life.  But the deed used to convey the property to a new owner will not include a description of this little strip the owner acquired for the very obvious reason that the owner didn’t know he acquired it and just always considered it to be his.

What does this mean?  It means that down the road, the new buyer might get into a tiff with his neighbor about boundary lines, and think to himself “Hey, this fence (or other visible line) has been here for a long time. I am going to sue for boundary by acquiescence!” only to learn that the property he’s looking to quiet title to has already been (unknowingly) acquired by his predecessor in interest – the individual who sold him the property (but not the strip) in the first place.

This of course, gets even more complicated, if the owner of the strip has, for example, died in the interim, and his or her will granted all of his or her property to Jimmy the Beard’s Trading Card Emporium.  Now, in order to get title to the strip of property, the neighbors either have to negotiate with Jimmy’s, or sue Jimmy’s to quiet title.  Imagine if the owner of the strip dies intestate and has (welcome to Utah) twelve kids!  Now, through the magic of intestate succession, that newly minted mini-parcel is now fractionally owned by a dozen heirs, and these two neighbors either have to bury the hatchet, or do the legal tango with a twelve-headed monster (either in negotiations or through litigation).  If the twelve-headed monster (or any successor owner to the strip) learns the strip is valuable, they could test its value by forcing the two neighbors to engage in a bidding war, in which case, the more wealthy neighbor may win out.

All of this can mean that some people – particularly those who can’t afford to pay a lot of legal fees, which is probably pretty much everyone in this economy – can’t afford to resolve certain boundary disputes if their neighbor isn’t seeing things their way.  It can be quite a mess.

So two last bits of non-legal advice: (1) if you are in a boundary dispute, and you believe title may have vested in a prior owner, contact them (if they are still around and if you can find them) and see if you can get a quit claim deed from them, and (2) when you’re entering into one of these disputes, be sure to do your homework about Birthdays so you know when title may have vested.

The Bottom Line

At the end of the day, good fences make good neighbors, but bad fences can make for some bloody legal battles.  If you suspect that a boundary line has shifted or if you’re confronted by a neighbor who claims it has shifted, take a breath, do your research, and weigh the financial and emotional costs of a feud before charging ahead.  And as always, if you need help deciphering exactly when your new boundary’s “Birthday” happened, our team is here to help you navigate the legal terrain.  We may even provide cake.

**Disclaimer: Cake may be in the form of Hostess Cupcakes.  We are not bakers.  We accept no legal responsibility for your consumption of said cakes.  Please consult a licensed medical physician before partaking.