You Think You Have a Bad Neighbor?

This story from local news and radio station KSL may be the worst story I’ve ever heard about a bad condominium neighbor:

PARK CITY — A Park City man is facing criminal charges after he allegedly furnished his condo by stealing his nearby neighbor’s furniture, including a refrigerator containing 12 packages of elk meat.

Johnathan Christian Hattaway, 38, is charged in 3rd District Court with burglary, a second-degree felony, and theft, a third-degree felony. Additional details of his alleged crime were released in a search warrant unsealed in court Tuesday.

On Oct. 17, a couple living at the Prospector Condominiums came home to discover much of their furniture was missing. The missing items included a stainless steel refrigerator, a large wooden armoire, a queen-size mattress, a bed frame, queen-sized box springs, two lamps, cleaning supplies and 12 packages of elk meat, according to a search warrant affidavit.

Investigators determined that a key card had been made without authorization and was used to enter the condo, the warrant states.

Two days later, as officers were investigating several reports of criminal mischief and a vehicle burglary in the same area, they “determined John Christian Hattaway was a person of interest in these said cases,” according to the affidavit.

Detectives discovered Hattaway lived just one or two doors away. Officers went to Hattaway’s condo to talk to him. Using their body cameras, the officers recorded the furniture in the house as they walked around and later showed the video to the couple who had their furniture stolen. The couple identified many of the items as theirs, the warrant states.

“The defendant told the officers that he had thought that (the other condo) was a low income rental so he thought he could exchange his property for the property in (it),” according to charging documents.

Two days after being charged in Summit County, Hattaway was charged in Salt Lake County Justice Court with shoplifting, a class B misdemeanor. On Aug. 10, he pleaded guilty to theft of services in Summit County Justice Court, according to court records.

Nice excuse about the low income neighbor. He thought they residents were low income, so it was OK to steal the furniture?

 

Join Us for a Free Lunch!

The Utah Condominium and HOA lawyers at Hobbs & Olson | Carpenter Hazlewood will be sponsoring this week’s UCCAI Luncheon, and the speakers will be covering issues related to unit owner insurance coverage (HO-6 policies.

The luncheon will be held Thursday, November 10, at 11:30 a.m. at the Cottonwood Country Club.

We have a number of sponsor guest passes, so if you or anyone whom you know might be interested in attending, have them give us a call or drop us an email. The main office # is 801.519.2555, and you can email us through the links on this page.

2017 Law Seminar Brochure is Online

The brochure for the 2017 Community Association Law Seminarlawseminar is now posted online and available for searchable review. The seminar will be held in Las Vegas on January 18-21 and will provide valuable education and updates for condominium and HOA lawyers.

Lincoln Hobbs and Sarah Orme will be co-presenting a case law study on a case recently and successfully litigated by Hobbs & Olson | Carpenter Hazlewood, and Scott Carpenter will be co-presenting the annual case law review.

Join Us to Learn About Insurance Coverage!

Utah condominium and HOA lawyers
Utah Condominium and HOA lawyers

Hobbs & Olson | Carpenter Hazlewood will be the sponsor of the Utah Chapter of the Community Association Institute’s monthly luncheon on November 10, and it’s a topic of significant importance and interest. The speakers will speak on individual owner coverage, referred to as HO-6 policies. All Utah Condominium and Utah HOA owners should have HO-6 coverage to supplement the association’s coverage; this session will assist owners in finding the right policies for your needs.

Here are Details on Board Training

Our Back-to-School presentation of the Community Association Institute’s Board Leadership Development Workshop is less than two weeks away!

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Here are the details:
The course will be at the Salt Lake City Marriott at 220 South State Street, and will begin at 9 a.m.. We’ll seek to conclude the class by 3 p.m.

We’ll serve a continental breakfast and lunch, so come ready to eat and learn!

Registration is though the Utah CAI web page, located here. Registration costs $31 to cover the cost of the valuable course materials, but this gracious Utah Condominium and HOA law firm is offering scholarships to cover the entire cost of the course.

If you have questions regarding the course, give this Utah condominium lawyer or this Utah HOA lawyer a call, at 801.519.2555.

 

Significant New Utah Case to Impact Associations

cell towerIn a case released yesterday, Fort Pierce Indus. Park v. Shakespeare,   2016 UT 28, the Utah Supreme Court has clarified the standard of review to be applied in the interpretation of community association declarations. The case clarifies previously conflicting precedent by confirming that association declarations should be “neutrally construed,” as are other contracts, rather than “strictly construed.”

Whether a document is “strictly construed,” “neutrally construed,” or “liberally construed” can have a significant impact on the outcome of cases arising under the document. While these distinctions are familiar to most lawyers, they’re far from intuitive, and some explanation is in order. I’ll attempt to clarify.

The Factual Dispute and Trial Court Decision

This case arose following the installation of a cell phone tower in a St. George, Utah industrial park. The owners of a lot in that association sought to install a cell phone tower on their lot; the association’s board denied the request, but the owners installed it nonetheless. As would be expected, litigation ensued.

At the trial court level, the lot and cell tower owners prevailed. Their victory at the trial court level was aided by the trial court’s reliance upon an earlier Utah case from 1991, which had asserted that “restrictive covenants are not favored in the law and are strictly construed in favor of the free and unrestricted use of property.” The court cited several subsequent cases to the contrary, and asserted the quoted language to be “dicta.”

(Referencing precedent in an earlier case as “dicta” is almost akin, to a lawyer, as admitting to an earlier mistake. There’s more to it than that, but most readers won’t care about the distinction.)

The Court’s opinion states, quite clearly and without equivocation:

We continue to reject strict construction of restrictive covenants and make it clear that restrictive covenants are to be interpreted using the same rules of construction that are used to interpret contracts.

By construing the contract “neutrally,” rather than “strictly,” the Court appropriately referenced and gave significance to numerous provisions in the association’s declaration which gave the board “the right to refuse to approve any [submitted] plans and specifications.” Considerations that the board could make in reviewing plans included “the suitability of the proposed structure, the materials of which it is to be built, the site upon which it is proposed to be erected, the harmony thereof with the surroundings, and the effect of said building, or other planned structure, on the outlook from adjacent or neighboring property.” Further direction to the board included that permitted uses were required to be “aesthetically attractive and harmonious structures.”

The district court had acknowledged, as was obvious, that the construction of the tower following the board’s rejection thereof “constituted a breach of the CC&Rs.” The district court further found that the board had acted in good faith in denying the application. However the district court reversed the association’s decision, concluding the denial was improper. The association appealed; the lot and tower owners cross appealed on issues related to the timeliness of the association’s denial and the limitation of fees awarded to them. The Supreme Court reversed the district court’s decision regarding the board’s decision, upheld the timeliness of the association’s denial, reversed the award of attorney fees to the lot owners, and sent the case back to the district court, to determine the fees to which the association is entitled.

The association’s declaration actually provided, as do many if not most association declarations, that it was to be interpreted “liberally.” The Court determined it didn’t need to interpret the declaration liberally in order to uphold the board’s decision; they were clearly within the bounds of their discretion in denying installation of the cell towers.

The Significant Aspects of the Decision

Setting aside a number of procedural appeals issues that would be of interest to only some lawyers, the Supreme Court made several significant statements which will impact future community association disputes in Utah. These include:

The Court clearly dismissed an earlier case suggesting that declarations should be strictly construed. The court noted that “servitudes are widely used in modern land development and ordinarily play a valuable role in utilization of land resources.”

The Court acknowledged, while declining to define, the fact that the “business judgment rule” applies to an association board’s decisions arising under the association’s governing documents. The court affirmed that “In applying the business judgment rule, courts generally apply a presumption of reasonableness.” Even under the standard of the business judgment rule as applied by the lot and tower owners, the board’s decision was upheld, because it was “reasonable and made in good faith and [was] not arbitrary or capricious.”