Keeping Your Private Roads Private

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

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

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

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

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

Brickyard Homeowners’ Assoc. v. Gibbons Realty Co.

668 P.2d 535 (Utah 1983)

Brickyard, which involved numerous alleged defects in the construction of a condominium project, is significant in that it seemingly established, without question, that an association had standing to assert claims involving common areas, and claims involving more than one unit, by the association.

In the case, the Court declined to adopt the defendants’ desired result that all unit owners be required to be joined as parties. The Court stated:

In a nutshell, inasmuch as res judicata could be relied upon in any subsequent action by the defendants against them, we see no basis for concern that they will be exposed to multiple and inconsistent judgments. Nothing would be gained by forcing a class action upon the Brickyard Condominium unit owners nor in requiring that each of them be made parties as the statute offers a less burdensome alternative for legal representation.

Brickyard affirmed the association’s right to pursue claims based upon implied warranties and fraud, based upon the earlier case of Management Committee of Graystone Pines HOA v. Graystone Pines, Inc., 652 P.2d 896 (Utah 1982).

Case of the Week – Yazd v. Woodside Homes

One of my goals on this blog (and time will tell if I achieve it) will be to summarize a court case of note. There are lots of interesting cases out there; many from Utah, and many more from other states. I’ll try to get in at least one a week, focussing on more timely cases, and leading, eventually, to a summary of all of the leading Utah community association cases.

This week’s case is a recent case that doesn’t deal directly with community associations, but that should be of significant benefit to Utah associations. It’s a construction defect case that affirms that the Utah appelate courts are back on the right track in construction law.

The case, Yazd v. Woodside Homes Corporation, 2006 UT 47, dealt with a home built on collapsible soil. Evidence showed that the seller of the soil, the LDS Church, had purchased the property for construction of a church, but abandoned those plans and sold the property when a soils report revealed the presence of the unsuitable soil. The report did not evaluate the suitability of the soil for residential construction. Woodside bought the property; the sales contract said that the report would be made available. Woodside claimed it never saw the report.

Woodside had its own soil study prepared after it bought the lots, and their study also affirmed the presence of collapsible soil. Woodside came up with a plan that was intended to compensate for these conditions. They then sold the lot, but they did not disclose the contents of the reports.

The buyers moved in in September 1995, and the settling became evident within the following year. When they tried to sell the home in 2002, their purchaser discovered the need for major repairs.

The Court evaluated the duty owed by evaluating the nature of duties as established by law. “Legal duty,” the court stated, “is the product of policy judgments applied to relationships. The Court noted that they had never explicitly recognized that a duty is owed to buyers of new homes by builder-contractors.

However, in Yazd, the Court explicitly extended the duty of a builder-contractor in a direct action for recovery brought by a home buyer. The Court noted “Modern home construction requires a high degree of knowledge and expertise, including knowledge of soil conditions….the disparity in skill and knowledge between home buyers and builder-contractors leads buyers to rely on the builder-contractor’s expertise.”

The Court’s opinion is significant, because it seems to obliterate, indirectly, the holding in the earlier opinion of American Towers , a prior holding by the Court which had seemingly precluded associations from bringing claims against builders with whom they had no privity.

Barring any major developments in the next week, the American Towers case will be reviewed next week.