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.

A UTAH HOA CASE STUDY

When the Quiet Broke

One neighborhood’s long road from fear to nuisance abatement—and what Utah HOAs can learn from it

“The law did not ask whether the neighbors were inconvenienced. It asked whether the danger had become a nuisance—and whether anything short of eviction could end it.”

This article is based on the February 5, 2026 Findings of Fact, Conclusions of Law and Order in Stone Creek Homeowners Association, Inc. v. Hartley, Third District Court, Salt Lake County, Case No. 250908013. It recounts the court’s findings, not independent factual findings by the author.

The House Across the Street

At first, a neighborhood measures trouble in small things: a car that arrives after midnight and leaves before anyone can remember its color; a stranger cutting through visitor parking with a backpack; a garage door lifting and closing at hours when the rest of the street is dark.

At Stone Creek, those small things accumulated. According to the court’s findings, cars stopped at one house for five or ten minutes at a time. People came and went on bicycles and skateboards. Police returned so often that a detective testified he may have been called to that property more than any other in West Valley City.

Then the quiet did not merely thin. It broke.

In March 2022, a SWAT team executed a search warrant. The court found that officers located guns, drugs, stolen property, drug paraphernalia, and fraudulent documents. Three months later, another raid uncovered a stolen motorcycle, heroin, fentanyl pills, and 246 grams—more than half a pound—of methamphetamine. Six people were arrested, four on active warrants. The health department closed the residence for methamphetamine contamination—stating that the quantity of drugs found at the residence would “make Walgreens jealous.”

Even condemnation did not restore peace. Days later, officers responding to a report of people entering the sealed home found a woman hiding beneath a mattress. She was arrested for trespass and possession of methamphetamine. In 2023, a federal fugitive team arrived for a wanted man living there; another occupant threw methamphetamine through a second-story window as officers approached.

A Neighborhood Learns to Flinch

The story the neighbors told at trial was not only about contraband. It was about the slow and harrowing rearrangement of ordinary life around fear.

The HOA president, who lived across the street, described raids loud enough to wake the neighborhood: officers, drawn weapons, flash-bang devices. She testified that the repeated disturbances caused profound harm to her family, including severe trauma to her autistic daughter. Other neighbors described avoiding the property, fearing retaliation, and wondering whether they should leave homes they had once regarded as safe.

In August 2025, the danger escalated again. An occupant shot another person at the property. The related criminal charges were dismissed without prejudice and, the trial court noted, later refiled; they had not been adjudicated when the civil eviction order was entered. The civil court found that the shooter was a restricted person unlawfully possessing a firearm. Eleven days after the shooting, SWAT officers returned with a no-knock warrant. Five people were detained, and one was arrested with methamphetamine.

The distinction mattered. The HOA case was not a substitute criminal prosecution. It was a civil action asking what the law and the HOA’s governing documents permitted the community to do about a place where the court found drug activity and a weapons offense continued to occur.

The Drug House Owner’s Open Door Policy

At trial, the owner testified that she rented rooms informally, month to month. IN fact, there was evidence that she used a QR code on the entry wall for would-be renters to pay her. There were no written leases, applications, or background checks. The court found that she did not meaningfully screen the people who lived at or frequented the property. She had evicted the occupant involved in the shooting more than once, yet allowed him to return—eve after the shooting.

The court did not accept the idea that the nuisance was merely a succession of unrelated wrongdoers passing through an innocent owner’s home. It found an ongoing pattern enabled by the owner’s choices: people engaged in drug use, possession, and dealing were repeatedly allowed to reside at and use the property after raids, warnings, contamination, and a shooting. The court expressly found the owner’s denials of continuing drug problems not credible.

That finding became the hinge of the case. The nuisance, the court wrote in substance, was not an accident that happened to the property. It continued and was, in fact, maintained.

Two Roads to the Same Remedy

Stone Creek proceeded on two paths. The first was state law. Utah Code sections 78B-6-1107 (superseded 2026) through 1114 identify certain premises-based criminal activity—including specified controlled-substance activity and weapons offenses—as a nuisance, and they provide a civil process for abatement by eviction.

Under section 78B-6-1109, eviction required more than proof that unlawful activity had occurred. The HOA had to show irreparable harm; that the threatened injury outweighed the harm eviction might cause; that eviction would not be adverse to the public interest; and either a substantial likelihood of success or serious merits issues warranting further litigation. Because the expedited proceeding became a trial on the merits, the court found that Stone Creek had actually prevailed—not merely shown a likelihood of doing so.

The second path ran through the recorded CC&Rs. Article 9.5 prohibited noxious, illegal, or offensive activity and conduct that could become an annoyance or nuisance. Another section made every CC&R violation a nuisance, and made remedies available at law or equity applicable to its abatement. The CC&Rs also authorized enforcement actions. The court treated those contractual remedies as cumulative, not exclusive, and concluded that the same conduct established both a state law nuisance and a material breach of the declaration.

The order required the owners and all occupants to vacate within twenty-one days. It barred them and those acting with them from occupying the property, facilitating specified nuisance activities, reentering without further court order, or intimidating the HOA’s trial witnesses. Law enforcement was authorized to assist. The court also awarded the HOA all its requested attorney fees and costs against the offending owner.

What Utah HOAs Can Learn

Stone Creek is a powerful example, but it is not a shortcut. It is a trial-court order arising from extraordinary facts, particular CC&R language, extensive evidence, and a fully litigated record. It does not mean every covenant nuisance supports eviction. The practical lessons are more disciplined—and more useful.

• Start with the grant of authority. Read the CC&Rs, bylaws, rules, enforcement provisions, leasing provisions, and remedies together. Identify the exact covenant violated, who is responsible for occupants and guests, whether remedies are cumulative, and whether the documents authorize injunctive relief, fines, self-help, fees, or other enforcement. Do not assume that a general nuisance clause contains every remedy.
• Describe conduct, not character. Notices and board records should identify dates, events, witnesses, police incident numbers, and the provision violated. Avoid labels, rumor, or moral judgments. The Stone Creek record succeeded because it connected specific events to specific statutory and contractual standards, rather than character assassination.
• Build a chronology before a crisis. Maintain a secure incident log, preserve photographs and video lawfully, retain copies of notices and responses, and collect declarations from witnesses while memories are fresh. Obtain public police records through proper channels. Never encourage residents to trespass, confront occupants, or conduct their own surveillance in unsafe circumstances.
• Use ordinary enforcement correctly. For many nuisances, written warnings, hearings, fines, suspension of privileges where authorized, and an injunction are the appropriate ladder. Utah’s HOA and condominium fine statutes impose notice and hearing requirements. Follow both the governing documents and the applicable statute; defective process can distract from otherwise strong facts.
• Distinguish annoyance from statutory criminal nuisance. Utah’s abatement-by-eviction statute targets enumerated premises-based activity. Noise, parking, animals, odors, or unsightly conditions may violate covenants without satisfying sections 78B-6-1107 through 1114 (superseded). Match the remedy to the legal theory instead of forcing every dispute into the most severe category.
• Show why lesser measures failed. If extraordinary relief becomes necessary, document prior warnings, repeat violations, owner responses, unsuccessful efforts to remove problem occupants, continued danger, and non-compensable harm. The Stone Creek court repeatedly relied on the persistence of the problem and the failure of lesser measures.
• Coordinate; do not deputize the HOA. Report emergencies and suspected crimes to law enforcement. Counsel can seek admissible records and coordinate service or safety planning. The board’s role is governance and civil enforcement—not investigation of crimes or physical removal of occupants.
• Identify and notify every necessary party. Title holders, tenants, and occupants may have distinct rights. The abatement by eviction statutes and ordinary due-process principles require careful party and notice analysis. Confirm title, occupancy, lease status, service requirements, and any pending bankruptcy before filing.
• Protect witnesses and sensitive records. Use a need-to-know process for witness identities, medical details, law-enforcement material, and attorney communications. Plan for meetings, testimony, and potential retaliation. A board should not publish allegations broadly merely because litigation is contemplated.
• Screen for overlapping laws. Fair-housing duties, disability accommodations, landlord-tenant rules, municipal ordinances, record-inspection rights, insurance obligations, and bankruptcy can alter procedure. An accommodation obligation does not authorize criminal conduct, but the HOA must still avoid discriminatory assumptions and evaluate lawful requests individually.
• Bring in legal counsel before the final notice. A lawyer can help select the proper claim, preserve privilege, audit the governing documents, test admissibility, assess emergency-relief standards, and avoid remedies the documents or statute do not support. Early review is usually less expensive than repairing an inconsistent enforcement record.

The Larger Point

A homeowners association is not a police department, and nuisance language is not a license to govern by suspicion. Yet an HOA is also not required to look away while a documented, dangerous pattern consumes the neighbors’ use of their homes.

The Stone Creek case turned on patience under pressure: years of incidents reduced to reliable records; frightened residents willing to testify; law-enforcement evidence tied to statutory elements; and governing documents whose promises could be enforced alongside state law. By the time the court ordered the house emptied, the remedy was severe because the proof showed the nuisance was severe—and because the lesser answers had already failed.

For Utah boards, that is the lasting lesson. Act early. Write precisely. Enforce consistently. Protect people. And when the ordinary tools no longer match the danger, make sure every step toward an extraordinary remedy is supported by both the documents and the law.

By: Doug Shumway, Esq.

Authorities and Editorial Notes

Source decision: Stone Creek Homeowners Association, Inc. v. Hartley, Third Judicial District Court, Salt Lake County, Case No. 250908013, Findings of Fact, Conclusions of Law and Order (Feb. 5, 2026). The order is a trial-court decision and should not be described as binding statewide appellate precedent.

Criminal-nuisance statute: Utah Code §§ 78B-6-1107 to -1114 (including statutory definitions, standing, eviction factors, necessary parties, evidence, and potential fees/costs). Official/current text or decision

Community-association fines: Utah Code § 57-8a-208. Official/current text or decision

Condominium fines: Utah Code § 57-8-37. Official/current text or decision

Contract principle cited by the court: Swan Creek Village Homeowners Association v. Warne, 2006 UT 22, ¶ 44, 134 P.3d 1122. Official/current text or decision

Legal note: This article provides general educational information, not legal advice. Statutes, procedural rules, and governing documents should be checked in their current form for the particular association, property type, facts, and forum.

The “Win, Win, Win” Method

Written by: Caleb O. Andrews

In community associations, disputes are too often treated as zero-sum battles: someone wins, someone loses, and tensions linger long after the issue is closed. But when friction arises over architectural guidelines, noise complaints, or property maintenance, treating conflict like a cage match usually leaves everyone worse off.

What if we changed the playbook?

In the classic episode of The Office titled “Conflict Resolution,” (S2E21) Michael Scott famously champions the ultimate dispute resolution philosophy: the “Win, Win, Win.” While Michael’s execution left a lot to be desired, the underlying principle is surprisingly sound. A traditional win-win focuses strictly on the two opposing sides; in our case, the Board and an Owner. But a win-win-win creates a third win: a win for the entire community.

Combine Michael Scott’s theory with DJ Khaled’s iconic anthem, and the goal for any thriving HOA becomes clear: “Win, Win, Win, no matter what.”

The Shift: The emphasis isn’t on crowning a single victor and declaring a loser. It’s about building a standard of civility where the whole community comes out ahead. At the end of the day, success in a community association isn’t about defeating a neighbor in court or getting the last word at a board meeting. It’s about creating a peaceful, well-run neighborhood where people enjoy living. Having a clear standard for enforcement to help keep legal fees low—whether they are paid by an Owner in violation or by the association—is an added plus.

“Fight for the things that you care about but do it in a way that will lead others to join you.” – Ruth Bader Ginsburg

Contact your favorite Miller Harrison lawyer today so that you too can sing with us “Win, Win, Win, No Matter What”.

Written by: Julie Ladle

You receive a notice from your HOA. According to the letter, you’ve been fined $100 because your trash can was visible from the street.  Your first thought might be: “Can they really do that?”

The answer is generally yes—but only if the HOA follows Utah law and their own governing documents. An HOA’s authority to impose fines is not unlimited, and HOAs that fail to follow the required procedures may find their fines difficult—or impossible—to enforce.

Can an  HOA Fine Owners Simply Because It Wants To?

No.  Before an HOA can assess a fine, the HOA must follow statutory requirements and any additional requirements contained in the HOA’s governing documents.  Statutory requirements stem from the Utah Community Association Act and the Utah Condominium Ownership Act (collectively the “Acts”), as applicable.  The Acts require that a written warning (“Notice of Violation”) be first provided to the offending owner.  The Notice of Violation shall:

1. 1. 1. Describe the violation;
      2. State the provision of the governing documents that the conduct violates;
      3. State the HOA may assess fines against the owner if a violation of the same provision occurs within one (1) year of the Notice of Violation;
      4. In the case of a continuing violation, contain a statement that if the violation is not remedied by a specified compliance deadline (of at least 48 hours), fines may be assessed.

After sending the Notice of Violation, the HOA may impose fines if the violation is repeated any time within a one (1) year period of time after the Notice of Violation is sent or if the violation is not cured or ceased within the time specified in the Notice of Violation. For continuing violations remaining uncured, fines may continue to be assessed every ten (10) days. In the condominium context, the aggregate amount of fines assessed against an owner for violations of the same provision of the governing documents may not exceed $500 in any one calendar month.  All fines must be based on a written schedule of fines that has been adopted by the HOA.

Can Owners Appeal a Fine?

Yes.  Under the Acts, an owner has the right to request an informal hearing with the HOA within thirty (30) days from the date a notice is provided to the owner stating that a fine has been assessed by the HOA. If an Owner timely requests a hearing, no interest or late fees on the fine(s) may accrue until after the hearing and final decision.  At the hearing, the HOA shall provide the owner a reasonable opportunity to present owner’s position to the Board and shall allow all persons involved in the hearing to participate by means of electronic communication.  An owner may appeal an assessed fine by initiating a civil action within 180 days after: (1) if the owner timely requests a hearing, the day on which the owner receives a final decision from the HOA; or (2) if the owner does not timely request a hearing, the day on which the time to request an informal hearing expires.

Are Fines Enforceable? 

Likely yes, provided the HOA follows the Acts and any separate requirements in the HOA’s governing documents.  Fines are enforcement tools to keep the community running smoothly and efficiently.   The HOA Board has the responsibility to consistently enforce the governing documents against all owners in the community.   If not, the community suffers, and the governing documents become meaningless and harder and harder to enforce.   

What If My HOA Has Questions?

The attorneys at Miller Harrison will be happy to discuss any questions and concerns that arise regarding fines and ensure that HOAs are assessing fines correctly.   Feel free to reach out to our office for further information.

Written by: Nathan Westover

If you’re a developer building a new residential community in Utah, or a home buyer purchasing a brand-new house, it’s important to understand the unique relationship that you’re entering into. When a community is first built, the developer essentially wears two hats: they are both the builder of the neighborhood, and they are the initial, controlling board of the Homeowners Association (the “HOA”). For developers, this dual role comes with specific legal responsibilities. For home buyers, understanding these responsibilities is key to knowing what to expect when the neighborhood eventually transitions from developer control to homeowner control.

In 2009, the Utah Supreme Court decided a landmark case called Davencourt at Pilgrims Landing v. Davencourt, LC, which established a clear guideline for developers. In that decision, the court made it clear that, while developers remain in control of the HOA’s board, they owe the association a limited fiduciary duty. For developers, following these guidelines is the best way to prevent lawsuits from aggrieved homeowners. For home buyers, these are the standards you should expect your home’s builder to uphold before they turn the board over to the community.

In Davencourt, the Court articulated the following duties owed by developers prior to turnover of the HOA:

(1) to use reasonable care and prudence in managing and maintaining the common property;

(2) to establish a sound fiscal basis for the association by imposing and collecting assessments and establishing reserves for the maintenance and replacement of common property;

(3) to disclose the amount by which the developer is providing or subsidizing services that the association is or will be obligated to provide;

(4) to maintain records and to account for the financial affairs of the association from its inception;

(5) to comply with and enforce the terms of the governing documents, including design controls, land-use restrictions, and the payment of assessments;

(6) to disclose all material facts and circumstances affecting the condition of the property that the association is responsible for maintaining; and

(7) to disclose all material facts and circumstances affecting the financial condition of the association, including the interest of the developer and the developer’s affiliates in any contract, lease, or other agreement entered into by the association.

While these duties exist largely to protect homeowners, understanding and complying with them is vital for protecting developers from potential lawsuits. For example, in order to attract buyers, it may be tempting for a developer to subsidize certain HOA amenities so that the HOA dues remain low. However, this can create a real problem for homeowners after turnover when they discover that their dues will suddenly skyrocket because those subsidies are no longer around.

To avoid this trap, developers must establish a sound, realistic fiscal basis for the HOA from day one. If a developer chooses to subsidize costs to help with sales, they have a strict legal duty to fully and transparently disclose those subsidies to the buyers. Homeowners should understand the real costs of the HOA – such as the costs for maintaining the clubhouse, the pool, or landscaping – so that they can make an informed decision.

Additionally, Davencourt requires that developers run the association in a manner that can be replicated by the HOA’s actual board after turnover. As such, it is vital to keep clean, transparent accounting records to help ensure that when the homeowners take over, they aren’t left untangling years of messy accounting. Further, while it is common for developers to hire affiliated companies to work on the community, those relationships must be openly disclosed to the association. Developers should avoid binding HOA communities to long-term contracts, as those will likely be challenged in the future if better options are discovered later.

Developers also have a duty to take care of the HOA’s common areas. While they are in charge, they are responsible for using reasonable care to maintain the parks, roads, and clubhouses. If there are material issues with the property that the HOA is going to inherit, the developer has a duty to disclose this to potential buyers. Importantly, developers must also play by their own rules and enforce the community’s Covenants, Conditions, and Restrictions (CC&Rs) consistently, even while construction is still ongoing. Failing to do so can cause issues with future boards who will have to enforce the CC&Rs as written, but will have no track record of doing so to back them up.

If you are a developer, these duties might sound like a heavy burden, but they can actually protect you from lawsuits if you fulfill your obligations. In Utah, the Economic Loss Rule generally prevents owners from suing a developer under tort theories, such as negligence, when the damages suffered by the owner are purely economic. With limited exceptions, any duty owed by the developer must be spelled out in writing in a contract between the parties. However, if a developer breaches their Davencourt duties, they open the door for plaintiffs’ attorneys to bypass the Economic Loss Rule and bring tort claims (such as breach of fiduciary duty). By strictly treating the Davencourt duties as a compliance checklist, developers can protect themselves from costly post-transition lawsuits while setting the new community up for long-term success.

The transition from developer control to homeowner control doesn’t have to be a battleground. When developers act proactively and home buyers know what to expect, turnovers can be smooth and conflict-free. Whether you are a developer looking to prevent turnover-based lawsuits, a property manager, or a newly formed board learning to manage your HOA, proactive legal guidance is your best asset. Reach out to the team at Miller Harrison today to discuss how we can help safeguard your community’s transition.

Written by: Peter Harrison

Utah homeowners’ associations rarely find themselves in legal trouble because someone forgot the secret HOA handshake. More often, disputes arise from familiar issues: inconsistent enforcement, confusing assessments, unanswered records requests, poorly documented board decisions, and rules adopted without following the proper procedure.

Recent data provided by the Utah HOA Ombudsman’s Office illustrates the point. Of 146 opinions submitted during the reporting period, the leading issues were:

• Compliance with and enforcement of governing documents: 27.2%
• Fees and assessments: 11.4%
• Records requests: 10.5%
• Board authority and conduct: 10.5%
• Budgets: 9.6%
• Fines and enforcement procedures: 7.9%
• Rule adoption: 7%
• Amendments to governing documents: 5.3%
• Meeting notices: 5.3%
• Board or management committee meetings: 5.3%

Those numbers tell a fairly clear story: most HOA disputes are preventable.

As Ted Lasso reminds us, “Be curious, not judgmental.” That is excellent advice for soccer coaches, HOA boards, owners, and lawyers. Before assuming an owner is unreasonable—or that the board is operating a miniature dictatorship—ask what the governing documents actually say, what procedures were followed, and whether everyone received the same information.  Let’s examine the 5 biggest trouble spots.

1. Enforcement Is the Biggest Source of Disputes

More than one-quarter of the Ombudsman opinions concerned compliance with or enforcement of governing documents. That should surprise no one. Enforcement becomes combustible when one owner receives a violation letter while another owner’s identical violation is ignored.

Utah law generally requires similarly situated owners to be treated similarly. An association should therefore avoid selective enforcement, personal exceptions, informal “handshake” deals, and rules that exist only in the institutional memory of the longest-serving board member.

Before enforcing a restriction, the board should confirm:

1. The restriction actually appears in an enforceable governing document or properly adopted rule.
2. The association has authority to enforce it.
3. The restriction has been applied consistently.
4. The notice accurately identifies the violation and the controlling provision.
5. The owner receives any hearing or cure rights required by statute or the governing documents.

Utah courts generally interpret recorded covenants under ordinary principles of contract interpretation. If the language is unambiguous, courts apply its plain meaning rather than rewriting it to produce the result one side prefers. See Fort Pierce Industrial Park Phases II, III & IV Owners Association v. Shakespeare, 2016 UT 28; Gables at Sterling Village Homeowners Association v. Castlewood-Sterling Village I, LLC, 2018 UT 04.

That means a board should read the documents before sending the violation letter—not after the owner responds with a seven-page email copied to the entire neighborhood.

2. Fees and Assessments Require More Than a Spreadsheet

Fees and assessments accounted for 11.4% of the opinions. Assessments are essential: roofs, roads, insurance, landscaping, water systems, and snow removal are not paid for with goodwill and leftover refreshments from the annual meeting.

But assessments must be imposed under the declaration, bylaws, and applicable statutes. Boards should document:

• The authority for the assessment;
• The board action approving it;
• The allocation among owners;
• The due date and payment schedule;
• The notice delivered to owners;
• The account ledger for each owner; and
• The statutory and contractual basis for late fees, interest, collection costs, and attorney fees.

Utah law currently limits late fees in community associations to the greater of 10% of the assessment or $50, and permits interest of up to 1.5% per month, provided the board has adopted and distributed the required fee schedule. Associations should review older collection policies rather than assuming that a fee adopted years ago remains enforceable.

In Hi-Country Estates Homeowners Association v. MountainTop Properties, LLC, 2023 UT 8, the Utah Supreme Court upheld an HOA’s ability to recover assessments where the association’s authority had been ratified. The case also demonstrates why associations should maintain clear records establishing the source of their assessment authority and the calculation of the amount claimed.

3. Treat Records Requests as a Compliance Function

Records requests represented 10.5% of the Ombudsman opinions, including the very first opinion issued by the office. Many of these disputes could be avoided by having a written records-request procedure and one designated person responsible for administering it.

Utah law requires associations to maintain and make available specified records, including governing documents, approved minutes, budgets, financial statements, reserve analyses, insurance certificates, recent board minutes, profit-and-loss statements, and balance sheets.   These records are likely to change in the near future, always pay attention to the new legislation.  Certain information—including Social Security numbers, bank account numbers, and privileged communications—may be redacted.

Associations should:

• Date-stamp every request;
• Identify the records requested;
• Determine which records must be produced;
• Identify lawful redactions or exclusions;
• Respond within the statutory period;
• Keep a copy of the production; and
• Document when and how access was provided.

Ignoring the request is rarely the winning strategy, particularly when you could have statutory damages and be liable for attorney fees. Producing 1,500 pages without an index and announcing “it’s somewhere in there” is only marginally better.  Good counsel can help distinguish between a legitimate statutory request, duplicative demands, privileged information, personnel records, owner-specific information, and discovery requests that should proceed through pending litigation.

4. Board Authority Must Be Exercised Through Board Action

Board issues accounted for another 10.5% of opinions. The board normally manages the association’s affairs, but authority must be exercised in accordance with the declaration, bylaws, statutes, and proper meeting procedures.

Board members should understand the difference between:

• A director and an officer;
• Board authority and membership authority;
• Regular assessments and special assessments;
• Rules and amendments;
• Open sessions and properly closed sessions;
• Individual director preferences and formal board decisions.

Meeting minutes should identify attendance, motions, seconds, votes, recusals, and the substance of material decisions. Remember they are minutes, not an extended Phish jam session, but they should allow a future board, owner, judge, or auditor to understand what happened.

In Behar v. Johnson, 2024 UT App 129, a dispute arose over whether fellow directors had authority to remove an HOA board member. The Court found that the HOA members did not follow their Declaration when they removed Behar from the Board, and ultimately awarded attorney fees against the HOA.  The litigation illustrates that governance procedures are not mere technicalities. When the governing documents assign a decision to the membership, the board cannot simply take it over because holding an owner meeting seems inconvenient.

5. Budgets Are Governance Documents, Not Just Accounting Documents

Budget questions accounted for 9.6% of the opinions. Utah law generally requires a community association board to prepare and adopt an annual budget and present it to the members. Owners may disapprove the budget through the statutory process if the required voting threshold is reached.

Boards should connect the budget to:

• Historical operating expenses;
• Current contracts;
• Insurance increases;
• Reserve-study recommendations;
• Anticipated repairs;
• Delinquencies;
• Inflation; and
• Contingency planning.

A budget should not be created by taking last year’s total, adding an amount that “feels about right,” and hoping the roof remains emotionally committed to the building for another twelve months.

Reserve studies should also be updated when required. Even when reserve recommendations are not binding, they provide evidence that the board investigated long-term needs and made an informed decision.

The Ombudsman data demonstrates that Utah’s leading HOA disputes arise from repeatable governance problems. Associations can substantially reduce their risk by following their governing documents, applying rules consistently, maintaining accurate records, documenting board decisions, and communicating clearly.

Boards should be curious:

• What authority permits this action?
• What procedure applies?
• Have similar owners been treated similarly?
• What documents support the decision?
• How will this look to a neutral judge two years from now?

That approach is better than assuming bad motives on either side. It also makes meetings shorter, records cleaner, and legal bills considerably less dramatic.  Be curious, not judgmental—and keep the association’s governance from drifting toward the dark side of the moon.

By Gavin Wenzel

You may have heard about ChatGPT but not really know what it is or what it does. “ChatGPT[a] is an artificial intelligence chatbot developed by OpenAI and launched in November 2022.”[i] But what is an artificial intelligence chatbot? I am not a computer programmer, but from my non-technical perspective, it is an interactive computer-based chatroom. A user can have a conversation with ChatGPT, or even ask it to perform tasks. As at least one college professer observed, ChatGPT could be “the greatest cheating tool I’ve ever seen.”[ii] Educators are concerned about the ease with which students can complete assignments without engaging in the work and learning required to produce an assignment.[iii]

I recently tried ChatGPT for the first time and decided to find out what computers think about homeowners associations. As Thomas Kuhn has been attributed as saying, The answers you get depend on the questions you ask.” So if you like HOAs, you may get positive answers. If you don’t like HOAs, I’m sure ChatGPT can help validate your concerns. Below are three prompts I inputted to ChatGPT and the responses I received. Enjoy.

First Prompt: what is ChatGPT

I am ChatGPT, a language model developed by OpenAI. I am designed to understand natural language and generate responses that are intended to be human-like. I use a complex algorithm called a transformer neural network to analyze text inputs and generate text outputs. My goal is to help people find answers to their questions and engage in conversations on a wide range of topics.

Second Prompt: write an essay about the best reasons to live in an HOA

A Homeowners Association (HOA) is a community organization that is responsible for managing and regulating the common areas and amenities of a residential neighborhood. HOAs are becoming increasingly popular in many parts of the world, especially in the United States. While some people may view HOAs as a nuisance, there are many compelling reasons why living in an HOA can be beneficial. In this essay, I will discuss some of the best reasons to live in an HOA.

First and foremost, HOAs help to maintain property values. The HOA is responsible for ensuring that all homes in the community are kept in good condition, and that any changes made to the exterior of the homes are in compliance with the community’s architectural guidelines. This helps to ensure that the neighborhood remains attractive and well-maintained, which can help to increase property values over time. Additionally, the HOA is responsible for maintaining common areas such as parks, playgrounds, and swimming pools, which can also add value to the neighborhood.

Secondly, living in an HOA can provide a sense of community. HOAs often host social events and activities, such as block parties, holiday celebrations, and community service projects. This can help residents to get to know their neighbors and feel more connected to the community. Additionally, HOAs often have committees that residents can join to help shape the direction of the community, which can give residents a sense of ownership and pride in their neighborhood.

Another advantage of living in an HOA is that it can help to resolve disputes between neighbors. The HOA is responsible for enforcing the community’s rules and regulations, which can help to prevent conflicts from arising in the first place. If a dispute does arise, the HOA can help to mediate the situation and find a resolution that is fair to all parties involved.

Furthermore, living in an HOA can provide access to amenities that would be too expensive for an individual homeowner to afford on their own. For example, the HOA may have a clubhouse, fitness center, or tennis courts that are available to all residents. These amenities can be enjoyed by everyone in the community, regardless of their individual financial means.

Lastly, HOAs can provide a sense of security. HOAs often have security measures in place, such as gated entrances and security patrols, that can help to deter crime in the neighborhood. Additionally, the HOA may have rules in place that restrict parking on the streets or limit access to the community, which can help to keep unwanted visitors out.

In conclusion, while HOAs may not be for everyone, there are many compelling reasons why living in an HOA can be beneficial. From maintaining property values to fostering a sense of community, an HOA can provide many advantages to homeowners. If you are considering purchasing a home in an HOA, it is important to carefully review the community’s rules and regulations to ensure that they align with your individual needs and preferences.

Although my third prompt was intended to be a neutral question, ChatGPT’s version of humor (at least in the HOA context) is decidedly snarky.

Third Prompt: write me a funny essay about home owners associations

Home Owners Associations (HOAs) are a funny thing. They are like that one strict teacher you had in high school who never let you have any fun. You know the one who always made you follow the rules and never let you have any creative freedom. Well, that’s exactly what HOAs are, except they are for your house.

For those who are not familiar with HOAs, they are basically a group of people who make sure that your house and yard look perfect all the time. They have a list of rules that you have to follow, and if you don’t, they will fine you. They are like the fashion police, but for your lawn.

One of the funniest things about HOAs is the ridiculous rules they have. For example, in some HOAs, you are not allowed to park your car in your own driveway overnight. Yes, you read that right. You can’t even park your own car in your own driveway. This is like telling a bird it’s not allowed to fly.

Another hilarious rule is that you have to get approval from the HOA before you can change the color of your house. I mean, who cares what color your house is? It’s not like it’s going to offend anyone. Unless you paint it hot pink, then maybe you deserve a fine.

The best part about HOAs is the meetings. It’s like watching a bunch of adults argue over who has the prettiest flowers in their yard. It’s like a beauty pageant, but for houses. And let’s not forget about the election process. It’s like running for class president in middle school all over again, but this time it’s for the position of “lawn chairperson”.

The worst part about HOAs is that they can be very strict. You can’t have too many decorations in your yard, you can’t have weeds, and you can’t have a trampoline. What kind of life is that? No decorations, no weeds, and no trampoline? That’s like telling a kid they can’t have ice cream.

In conclusion, HOAs are like that one strict teacher you had in high school, but for your house. They have ridiculous rules, funny meetings, and can be very strict. But hey, if you follow their rules, your lawn will look great. Just don’t forget to hide your trampoline.

[i] https://en.wikipedia.org/wiki/ChatGPT

[ii] https://www.ksl.com/article/50576821/once-in-a-lifetime-opportunity-how-one-college-professor-is-leaning-into-ai-and-chatgpt

[iii] Id.