Hi-Country Estates v. MountainTop Properties

2023 UT 8IN THE
SUPREME COURT OF THE STATE OF UTAH
HI-COUNTRY ESTATES HOMEOWNERS ASSOCIATION, PHASE II,
Appellee,
v.
MOUNTAINTOP PROPERTIES, L.L.C.,
Appellant.
No. 20200267
Heard February 9, 2022
Filed May 4, 2023
On Direct Appeal
Third District, Salt Lake
The Honorable Richard E. Mrazik
The Honorable Kent R. Holmberg
No. 170904219
Attorneys:
Stephen T. Hester, Bradley M. Strassberg, Salt Lake City, for
appellee
Michael R. Menssen, Jordan C. Hilton, Russell A. Cline, Salt Lake
City, for appellant
JUSTICE PETERSEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE PEARCE, JUDGE
MORTENSEN, and JUDGE TENNEY joined.
Due to their retirements, JUSTICE HIMONAS and JUSTICE LEE did not
participate herein; COURT OF APPEALS JUDGE DAVID N. MORTENSEN
and COURT OF APPEALS JUDGE RYAN D. TENNEY sat.
JUSTICE HAGEN became a member of the Court on May 18, 2022,
after oral argument in this matter, and accordingly did not
participate.
JUSTICE POHLMAN became a member of the Court on August 17,
2022, after oral argument in this matter, and accordingly did not
participate.
HI-COUNTRY ESTATES v. MOUNTAINTOP
Opinion of the Court
JUSTICE PETERSEN, opinion of the Court:
INTRODUCTION
¶1 The Hi-Country Estates Homeowners Association (HOA)
sued Mountaintop Properties, L.L.C., an owner of a lot within its
boundaries, for unpaid assessments. And the district court
granted summary judgment in the HOA‘s favor. This appeal
presents the question of whether the HOA has authority to levy
such assessments, despite alleged defects in the HOA‘s founding
documents. Mountaintop contends that the person who formed
the HOA and signed its governing documents approximately fifty
years ago did not actually own most of the land he included
within the HOA‘s boundaries—including the lot at issue here. It
argues that this renders the HOA‘s governing documents, and
consequently the HOA‘s authority, absolutely void and incapable
of ratification.
¶2 The same question is presented in a related case that we
resolve today, Hi-Country Estates Homeowners Ass’n, Phase II v.
Frank, 2023 UT 7, --- P.3d ---, in which the HOA sued to collect
unpaid assessments it had levied on two other lots. In both cases,
we conclude that the HOA does have authority to assess the lots
at issue because the HOA‘s members have ratified its authority
over time. We affirm.
BACKGROUND1
The HOA and Its Governing Documents
¶3 In 1973, a man named Charles Lewton signed and
recorded a Certificate of Incorporation and Protective Covenants
for a development called ―Hi-Country Estates, Phase II.‖ The
documents established and incorporated the HOA and included
within its boundaries approximately 2,000 acres of land near
Herriman, Utah. The property at issue here was included within
the boundaries of the HOA and is referred to as Lot 90.
¶4 The 1973 protective covenants stated that ―the owners of
the herein described property, hereby subject said property to the
following covenants, restrictions and conditions.‖ Among other
things, the covenants provided that each lot owner would be a
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1 Where possible, the background facts are drawn from the
district court‘s recitation of undisputed material facts in its
summary judgment order.
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member of the HOA and would ―pay annually his pro-rata share
of the cost to maintain the roads, streets and common areas.‖
¶5 The HOA‘s governing documents have been revised and
amended over the years. The current governing documents are
the Certificate of Incorporation and Addendum to the Certificate
of Incorporation; the Second Revised Protective Covenants,
including subsequent amendments, dated December 10, 1980
(1980 Covenants); and the First Revised—1988 By-Laws, including
subsequent amendments (1988 By-Laws) (together, governing
documents).
¶6 The 1980 Covenants were signed by the President, Vice
President, and Directors of the HOA, purportedly ―in response to
the wishes of the majority of Association Members during the
Annual Membership Meeting on July 6, 1980.‖ Like the original
protective covenants, the 1980 Protective Covenants stated that a
homeowners association would be established, that each lot
owner would be a member of the association, and that each lot
owner would pay a pro-rata share of the assessments. The
document was recorded with the Salt Lake County Recorder.
¶7 The 1988 By-Laws were enacted at an annual meeting of
HOA members. ―The [1988] By-Laws, like the Covenants,
provide[d] for the obligation of lot owners to pay assessments,
[and] the ability of the HOA to collect such assessments . . . .‖ The
1988 By-Laws were also recorded with the Salt Lake County
Recorder.
Lot 90
¶8 Kathy Engle and her then-husband purchased Lot 90 in
1977. They later divorced, and Engle retained a 50 percent interest
in the property. Thereafter, she quitclaimed her interest in the
property to appellant Mountaintop Properties, L.L.C., of which
she is the principal.
¶9 The HOA has assessed Lot 90 since at least 1983. For
years, ―including [from] 1985–1992,‖ Engle—either in her own
capacity or as principal of Mountaintop—paid the assessments. At
times, Engle stopped paying the assessments, and the HOA
recorded a notice of lien against Lot 90. By 2011, Engle had
stopped paying the assessments charged by the HOA entirely.
¶10 In 2015, Engle participated in an effort to dissolve the
HOA. Acting as Mountaintop‘s principal, she signed a petition
calling for the HOA to be dissolved, in which she stated that ―[b]y
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Opinion of the Court
virtue of owning the above-referenced lot in [the HOA] I am a
member of the [HOA].‖
¶11 Around this same time, other lot owners who were
involved in separate litigation against the HOA claimed that they
had discovered evidence showing that when Charles Lewton
established the HOA and signed the governing documents in
1973, he owned less than 1 percent of the property he included in
the HOA‘s boundaries. Mountaintop asserts that the acreage
Charles Lewton owned did not include Lot 90.
¶12 Based on this information, in 2016 a group of lot owners
referred to collectively as ―WDIS‖ filed a quiet title action against
the HOA. WDIS moved for a declaration that the governing
documents signed by Charles Lewton were void ab initio (from the
beginning), because it violated public policy for Lewton to
encumber property that he did not own. WDIS, LLC v. Hi-Country
Ests. Homeowners Ass’n, Phase II (WDIS II), 2022 UT 33, ¶ 9,
515 P.3d 432.
The HOA’s Suit Against Mountaintop for Unpaid Assessments
¶13 One year later, the HOA sued Mountaintop in the
district court for past-due assessments. The HOA subsequently
moved for summary judgment. In response, Mountaintop filed a
―Motion to Declare Plaintiff‘s Liens as ‗Wrongful Liens‘ and
Remove Them and Award Statutory Damages and Attorney‘s
Fees and Quiet Title.‖ It argued, among other things, that the
HOA‘s governing documents were unauthorized encumbrances
on Lot 90, and therefore they violated the Wrongful Lien Act.
Summary Judgment
¶14 The district court granted judgment in the HOA‘s favor.
It concluded that the HOA was entitled to collect the unpaid
assessments because the HOA members in general, and Engle and
Mountaintop in particular, had ratified the HOA‘s authority,
including ―act[ing] as though the HOA had authority to assess Lot
90.‖ The court explained,
Because the HOA‘s Articles of Incorporation
and Covenants were of record when Mountaintop
took ownership of Lot 90, because decades have
passed since the time those documents were
recorded, because the members of the HOA have
since acted as though the HOA was a legitimate
governing entity for decades and because no
competing entity has arisen, the Court rules that the
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HOA‘s ability to govern and make assessments
against the lots within its purported jurisdiction has
been ratified by its members.
....
Mountaintop itself, as well as its principal
Kathy Engle, has ratified the existence and authority
of the HOA by failing to challenge that authority at
any time during the course of ownership since 1983,
by expressly admitting such authority in the [2015
Petition], and by paying charges and assessments at
various times.
¶15 And the court relied upon Swan Creek Village Homeowners
Ass’n v. Warne, 2006 UT 22, 134 P.3d 1122, and its progeny,
Osmond Lane Homeowners Ass’n v. Landrith, 2013 UT App 20,
295 P.3d 704, to rule that the members of the HOA had ratified its
authority to assess lots within its boundaries, even if there were
deficiencies with the HOA‘s governing documents. The court
explained,
Utah law is clear that even if there was some
technical deficiency with one or more of the HOA‘s
governing documents, the fact that the HOA has
been existing, living and breathing as a homeowner
association for 40 years, conducting meetings and
elections, governing the lots at issue, making,
collecting and enforcing assessments for decades,
making improvements, creating committees—all
with decades of cooperation of and participation
from its members—means that the authority to act
as such has been ratified by its members as a matter
of law.
(Citing Swan Creek, 2006 UT 22, ¶¶ 30–39; Osmond Lane,
2013 UT App 20, ¶ 17.)
¶16 The district court ordered judgment in the amount of the
past-due assessments to the HOA. It simultaneously denied
Mountaintop‘s motion.
Mountaintop’s Post-Judgment Motion
¶17 In response, Mountaintop filed a post-judgment motion
arguing, among other things, that it should not be liable for the
entire amount of unpaid assessments because it was only a 50
percent owner of Lot 90. The district court denied this motion and
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HI-COUNTRY ESTATES v. MOUNTAINTOP
Opinion of the Court
again entered judgment against Mountaintop for the entire
amount of past-due assessments, with interest and attorney fees.
¶18 Mountaintop appeals. It argues the district court erred
because the documents establishing the HOA are void ab initio
(from the beginning) and therefore cannot be ratified. In the
alternative, it argues that the court incorrectly determined that
ratification occurred here. And finally, Mountaintop contends that
if we conclude the HOA has authority to assess Lot 90, the district
court incorrectly calculated the amount it owes the HOA because
it should be responsible for only half of the unpaid assessments.
¶19 We exercise jurisdiction under Utah Code section
78A-3-102(3)(j).
STANDARD OF REVIEW
¶20 ―In reviewing the trial court‘s decision to grant summary
judgment, we give the court‘s legal decisions no deference,
reviewing for correctness, while reviewing the facts and
inferences to be drawn therefrom in the light most favorable to the
nonmoving party.‖ Dairy Prod. Servs., Inc. v. City of Wellsville,
2000 UT 81, ¶ 15, 13 P.3d 581.
ANALYSIS
¶21 We first address Mountaintop‘s argument that the HOA
has no authority to assess Lot 90 because the governing
documents that established the HOA are void ab initio and
therefore cannot be ratified. As we will explain, we have
determined in another case involving the same HOA that the
governing documents at issue are voidable rather than absolutely
void. WDIS, LLC v. Hi-Country Ests. Homeowners Ass’n, Phase II
(WDIS II), 2022 UT 33, ¶ 52, 515 P.3d 432 (―We hold that
restrictive covenants that are recorded without the signature of
the affected landowner are voidable, not absolutely void, and they
are therefore ratifiable.‖) Our holding in WDIS II applies here, and
consequently the HOA‘s authority is capable of ratification.
¶22 We then address Mountaintop‘s claim that the district
court erred in determining that the members of the HOA had
ratified the HOA‘s authority. In a related case issued today, which
involves the same HOA and similar facts, we conclude that the
members of the HOA have sufficiently ratified the association‘s
authority. See Hi-Country Ests. Homeowners Ass’n, Phase II v. Frank,
2023 UT 7, ¶ 74, --- P.3d --- (―[W]e conclude that the district court
properly applied the principles undergirding Swan Creek to
determine that the HOA members have collectively ratified the
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HOA‘s authority.‖). That holding also applies here. Accordingly,
the HOA is authorized to levy assessments against Lot 90.
¶23 And finally, we address Mountaintop‘s argument that the
district court incorrectly calculated the amount it owes the HOA.
Mountaintop argues that because it owns only a 50 percent
interest in Lot 90, it should be liable for only half of the unpaid
assessments. But because Mountaintop does not support this
argument with sufficient legal analysis, we conclude it has not
met its burden of persuasion.
I. THE HOA‘S GOVERNING DOCUMENTS ARE VOIDABLE,
NOT ABSOLUTELY VOID
¶24 Mountaintop argues that the district court erred in
concluding that the HOA‘s authority has been ratified, because
the court did not determine as a preliminary matter whether the
HOA‘s governing documents were void or voidable—and void
documents cannot be ratified. Mountaintop asserts that the
HOA‘s governing documents are absolutely void, and
consequently the HOA‘s authority is incapable of ratification.
¶25 The HOA‘s primary response is that Mountaintop did not
preserve this argument. The HOA may have a point. But we do
not resolve the preservation issue here, because we have already
rejected this issue on the merits in another case involving the
same HOA, the same governing documents, and substantially the
same argument. See WDIS, LLC v. Hi-Country Ests. Homeowners
Ass’n, Phase II (WDIS II), 2022 UT 33, 515 P.3d 432. And that case is
controlling here.
¶26 In WDIS II, we held with respect to the same governing
documents that ―restrictive covenants that are recorded without
the signature of the affected landowner are voidable, not
absolutely void, and they are therefore ratifiable.‖ Id. ¶ 52. In that
case, the plaintiffs were various persons and entities that owned
property within the HOA. Id. ¶ 3 n.2. They claimed to have
evidence that the man who had incorporated the HOA and signed
the initial governing documents, Charles Lewton, did not own
most of the land he included in the HOA‘s boundaries. Id. ¶ 5.
They sought to quiet title to their properties, and moved for a
declaration that the HOA‘s governing documents were absolutely
void. Id. ¶ 9. We explained,
[T]he distinction between void and voidable is
important because a contract or a deed that is void
cannot be ratified or accepted, and anyone can attack
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Opinion of the Court
its validity in court. In contrast, a contract or deed
that is voidable may be ratified at the election of the
injured party. Once ratified, the voidable contract or
deed is deemed valid.
Id. ¶ 14 (cleaned up) (quoting Ockey v. Lehmer, 2008 UT 37, ¶¶ 15,
18, 189 P.3d 51).
¶27 We observed that we ―start with the presumption that
contracts are voidable unless they clearly violate public policy.‖
Id. ¶ 15 (cleaned up) (quoting Ockey, 2008 UT 37, ¶ 21). And to
overcome this presumption, a party‘s showing that the documents
violate public policy must be ―free from doubt.‖ Id. To make such
a determination, we ask ―(1) whether the law or legal precedent
has declared that the type of contract at issue is unlawful and
absolutely void, and (2) whether the contract harmed the public as
a whole—not just an individual.‖ Id. ¶ 21 (cleaned up) (quoting
Wittingham, LLC v. TNE Ltd. P’ship, 2020 UT 49, ¶ 24,
469 P.3d 1035)).
¶28 Like Mountaintop, the landowners in WDIS II argued
that the governing documents were void because they violate
public policy as expressed in the Statute of Frauds, the Wrongful
Lien Act, and appellate caselaw. See id. ¶ 23. But we rejected this
argument. We concluded that these sources do not express a
public policy that the governing documents violate, so the
landowners had not overcome the presumption that the
governing documents were merely voidable. Id. ¶¶ 2, 13.
Accordingly, we held that ―restrictive covenants that are recorded
without the signature of the affected landowner are voidable, not
absolutely void, and they are therefore ratifiable.‖ Id. ¶ 52. And
this holding applies here.
¶29 As we observed in WDIS II, this holding simply defers to
the HOA members‘ collective decision to either reject or ratify the
HOA‘s authority, rather than deciding the matter for them as a
matter of law. Id. ¶¶ 16–22. And under these circumstances,
where covenants have existed for decades, the reliance interests of
the hundreds of other owners in the HOA ―may be especially
substantial.‖ Id. ¶ 19.
¶30 Having determined that the governing documents are
voidable rather than absolutely void, we now analyze whether the
district court correctly concluded that the HOA‘s members have
collectively ratified the HOA‘s authority, including its authority to
assess property within its boundaries.
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II. THE HOA MEMBERS HAVE RATIFIED THE HOA‘S
AUTHORITY
¶31 The district court concluded that the residents within the
HOA had collectively ratified the HOA‘s authority over time,
including the HOA‘s authority to assess property within its
boundaries, such as Lot 90. Mountaintop argues that this was
error because the district court did not make sufficient findings to
satisfy the elements of ratification, and because the collective
conduct the court relied upon does not satisfy the Statute of
Frauds. We disagree.
¶32 As an initial matter, we clarify that the question in this
case is whether the HOA‘s members have ratified the HOA‘s
authority in general, and its authority to assess the property within
its boundaries in particular. Mountaintop‘s analysis focuses on
whether the members have ratified the governing documents.
And it is correct that the HOA was originally established and
empowered by those documents. But here, the precise question is
whether the HOA had authority to levy annual assessments, as
contemplated in those allegedly flawed documents. Therefore, as
we explain in Hi-Country Estates Homeowners Ass’n, Phase II v.
Frank, our analysis focuses on whether the HOA members have
ratified the HOA‘s authority. 2023 UT 7, ¶ 50 --- P.3d ---. And we
do not comment upon whether the documents as a whole have
been ratified, as that question is not presented here.
¶33 In Frank, we analyzed the applicability of our analysis in
Swan Creek Village Homeowners Ass’n v. Warne, 2006 UT 22,
134 P.3d 1122, to the circumstances here. In Swan Creek, we held
that a ―[homeowners association] possesse[d] the authority to levy
assessments on property in the Swan Creek subdivision because
the lot owners collectively ratified its authority to act as the
association contemplated by the Declaration.‖ Id. ¶ 55 (emphasis
added). In that case, a developer had incorporated a homeowners
association to govern a development in Rich County, and had
recorded with the county a ―Declaration of Reservations,
Restrictions and Covenants of Swan Creek Village (the
―Declaration‖).‖ Swan Creek, 2006 UT 22, ¶ 2 (cleaned up). But
before the development was complete, the developer declared
bankruptcy and abandoned the project. Id. ¶ 3. The homeowners
association did not file the requisite annual report or pay its filing
fee, and it was involuntarily dissolved. Id. To fill the void, an
owner of a lot within the subdivision incorporated a new
homeowners association ―using the identical name and articles of
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Opinion of the Court
incorporation used by the Original Association.‖ Id. ¶ 4. He called
a meeting of all lot owners. Id. ―More than 100 people,
representing almost half of the lot owners, attended the meeting
and elected a board of directors for the [homeowners
association].‖ Id.
¶34 Years later, a person bought a lot within the subdivision
and refused to pay an assessment that the homeowners
association had levied on the property. Id. ¶¶ 8–10. The
homeowners association sued the owner. Id. ¶ 11. And the owner
argued that the homeowners association had no right to levy the
assessment ―because [it was] not the association contemplated
under the Declaration and because an insufficient number of lot
owners voted to ratify its authority.‖ Id. ¶ 30.
¶35 We rejected this argument and held that the homeowners
association was valid and authorized to impose assessments
pursuant to the Declaration. Id. ¶ 31. We explained that ―the
[homeowners association]‘s authority to impose assessments on
Swan Creek lot owners pursuant to the terms of the declaration
[had] been repeatedly ratified by the lot owners over a period of
many years.‖ Id. So even though there appeared to be no record
evidence that the Declaration had been formally amended to
recognize the new homeowners association, and there were
disputed factual issues regarding ―whether a majority of the lot
owners formally approved the substitution of the [new
homeowners association],‖ those facts were immaterial in light of
the lot owners‘ ratification. Id. We reaffirmed that ―[w]here
property owners have treated an association as one with authority
to govern and impose assessments contemplated under the terms
of a duly recorded governing declaration, they ratify its authority
to act.” Id. ¶ 32.
¶36 In reaching that conclusion, we found relevant that the
homeowners association ―ha[d] acted as a valid association for
almost twenty years, during which time the lot owners ha[d]
collectively accepted its management‖; the ―lot owners ha[d] paid
their dues to the [homeowners association]‖; ―only 24 of the 538
lot owners had not paid‖ the assessment at issue in the case; the
homeowners association had managed the property within Swan
Creek; the articles of incorporation and the Declaration had been
on file for years before the defendant acquired the property; the
homeowners association had been recognized as valid in another
court case, which imparted additional notice of the homeowners
association‘s authority; there had been a ―pattern of acquiescence
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by the lot owners‖; and ―no competing association had emerged.‖
Id. ¶¶ 38–39.
¶37 Here, the district court relied upon similar facts to
conclude that the HOA‘s members in general, and Engle and
Mountaintop in particular, had ratified the HOA‘s authority
because they had ―acted as though the HOA had authority to
assess Lot 90.‖ The district court explained,
Because the HOA‘s Articles of Incorporation and
Covenants were of record when Mountaintop took
ownership of Lot 90, because decades have passed
since the time those documents were recorded,
because the members of the HOA have since acted
as though the HOA was a legitimate governing
entity for decades and because no competing entity
has arisen, the Court rules that the HOA‘s ability to
govern and make assessments against the lots
within its purported jurisdiction has been ratified by
its members.
¶38 And the court concluded that Engle and Mountaintop
had ratified the existence and authority of the HOA by ―failing to
challenge that authority at any time during the course of
ownership since 1983, by expressly admitting such authority in
the [2015] Petition[,] . . . and by paying charges and assessments at
various times.‖
¶39 The court also relied on our analysis in Swan Creek and its
progeny to rule that such collective ratification was sufficient to
overcome the alleged deficiencies in the HOA‘s governing
documents:
Utah law is clear that even if there was some
technical deficiency with one or more of the HOA‘s
governing documents, the fact that the HOA has
been existing, living and breathing as a homeowner
association for 40 years, conducting meetings and
elections, governing the lots at issue, making,
collecting and enforcing assessments for decades,
making improvements, creating committees—all
with decades of cooperation of and participation
from its members—means that the authority to act
as such has been ratified by its members as a matter
of law.
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(Citing Swan Creek, 2006 UT 22, ¶¶ 30–39, and Osmond Lane
Homeowners Ass’n v. Landrith, 2013 UT App 20, ¶ 17, 295 P.3d 704.)
¶40 Mountaintop challenges the district court‘s decision. It
argues that the governing documents are subject to the Statute of
Frauds and, therefore, any ratification must be in a writing. And it
asserts that the court was required to find that those ratifying the
HOA‘s authority ―had full knowledge at the time of the
ratification of all material facts and circumstances relative to the
unauthorized act or transaction.‖ (Quoting Jones v. Mut. Creamery
Co., 17 P.2d 256, 259 (Utah 1932).) For these propositions,
Mountaintop relies on cases outside of the context here, including
cases involving ―ratification as it relates to the law of agency.‖
Jones, 17 P.2d at 259; see also generally Bradshaw v. McBride,
649 P.2d 74 (Utah 1982). But as we explain in Frank, these cases
involve a different scenario and do not control here. See Frank,
2023 UT 7, ¶¶ 60–66.
¶41 Swan Creek exemplifies that, even where real property is
involved, we do not always require that ratification be evidenced
in a writing or that the writing demonstrate an intent to ratify the
relevant defect. See Swan Creek, 2006 UT 22, ¶¶ 30–39. There, we
did not require a writing to show that the affected landowners
had ratified the authority of the homeowners association. Id. And
we did not ask whether the landowners were aware of the defect
in that case—specifically, that the homeowners association was
not the one established in the Declaration, but a substitute
homeowners association with the same name, which had been
formed by a lone lot owner. See id. Instead, we concluded that the
conduct of the landowners was sufficient to ratify the authority of
the homeowners association, where the landowners had treated
the homeowners association as if it had the authority to govern
and impose assessments, accepted its management activities, paid
dues, and demonstrated an overall ―pattern of acquiescence‖ over
a period of time. Id. ¶¶ 32, 39.
¶42 Mountaintop argues that Swan Creek does not apply here
because that case involved the ratification of a homeowners
association that was operating pursuant to a ―duly recorded‖
declaration. It views this as a ―critical distinction‖ between Swan
Creek and the circumstances here.
¶43 We disagree. ―Duly recorded‖ means only that a
document has been filed with an entity pursuant to law in a
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manner that gives notice of its contents and legal effect.2 In the
present context, it means only that the subject documents were
properly recorded with the county recorder. We found this fact
relevant in Swan Creek because it showed the defendant had notice
of the documents. 2006 UT 22, ¶ 38 (―[T]he [homeowners
association‘s] articles of incorporation and the Declaration were
on file and had been on file for years before [the defendant]
acquired her lots.‖).
¶44 As in Swan Creek, there is no dispute that the governing
documents here were ―duly recorded.‖ And the district court
properly found this to be relevant, observing that the articles of
incorporation and protective covenants were on file when Engle
purchased Lot 90 decades earlier.
¶45 But we acknowledge, as we do in Frank, that the
allegations in this case differ from those in Swan Creek. There, the
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2 While Black’s Law Dictionary does not define the phrase ―duly
recorded,‖ the definitions it provides for the phrase‘s constituent
terms provide guidance. Black’s defines ―duly‖ as: ―In a proper
manner; in accordance with legal requirements.‖ Duly, BLACK‘S
LAW DICTIONARY (11th ed. 2019). And it defines the verb ―record‖
as: ―To deposit (an original or authentic official copy of a
document) with an authority.‖ Record, BLACK‘S LAW DICTIONARY
(11th ed. 2019). Further, it is implicit in our case law dating back
to at least the early half of the twentieth century that ―duly
recorded‖ simply means that a document has been properly filed
with an entity in a manner that provides notice of its contents and
legal effect. See, e.g., McCready v. Fredericksen, 126 P. 316, 316 (Utah
1912) (―[S]aid certificate was duly recorded in the office of the
county recorder of Salt Lake county, Utah, on the 22d day of
March, 1897, in a book therein provided by law to be kept for that
purpose, to wit, Book A of Tax Sales, page 27, line 18, of the
records of said county.‖ (emphasis added)); Nat’l Realty Sales Co.
v. Ewing, 186 P. 1103, 1104 (Utah 1920) (―After the period of
redemption had expired, to wit, on January 20, 1917, said sheriff
made and executed a sheriff‘s deed to H. J. Ewing for the said
lands which deed was duly recorded in the office of the county
recorder for Utah county on said day.‖ (emphasis added));
Ferguson v. Mathis, 85 P.2d 827, 828 (Utah 1938) (―The mortgage
was duly recorded the following day in the office of the County
Recorder of Carbon County.‖ (emphasis added)).
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defendant alleged that the substitute homeowners association was
invalid. Id. ¶ 30. Here, Mountaintop alleges something more—that
the HOA was never validly established. For this reason, Swan
Creek is not directly controlling. But we conclude that the
principles underlying Swan Creek apply to the circumstances here,
and we therefore extend the rationale of that case to the facts in
this one.
¶46 Although an encumbrance on real property was involved
in Swan Creek, we were willing to excuse rigid adherence to the
Statute of Frauds‘ general writing requirement because, among
other things, there was notice of the encumbrance (because it was
duly recorded), the encumbrance had been in place for a
significant period of time before the defendant challenged its
validity, and during that time period the affected landowners‘
conduct demonstrated acceptance of the encumbrance and
acquiescence to the authority of the HOA. Id. ¶¶ 38–39. These
guiding principles mirror the foundational concepts at work in
other real property contexts where we have been willing to excuse
the writing requirement, including the doctrines of boundary by
acquiescence, adverse possession, and prescriptive easement. See
Q-2 L.L.C. v. Hughes, 2016 UT 8, ¶ 10 n.15, 368 P.3d 86 (explaining
that boundary by acquiescence requires, among other things,
―occupation‖ and ―mutual acquiescence‖ for ―at least 20 years‖
(cleaned up)); Anderson v. Fautin, 2016 UT 22, ¶ 25, 379 P.3d 1186(―[O]ne who claims property by adverse possession must show
that his use and possession of the property has been actual, open
and notorious, and continuous for the statutory period.‖ (cleaned
up)); Kiernan Fam. Draper, LLC v. Hidden Valley Health Ctrs., LC,
2021 UT 54, ¶ 41, 497 P.3d 330 (―To obtain a prescriptive
easement, a party must establish a [property] use that is (1) open,
(2) notorious, (3) adverse, and (4) continuous for at least 20 years.‖
(cleaned up)).
¶47 Applying those guiding principles here, we conclude that
the repeated conduct of the HOA members over an extended
period—generally, the members‘ decades-long treatment of the
HOA as a legitimate governing entity and, more specifically,
Engle and Mountaintop‘s express acknowledgment of the HOA‘s
authority to levy assessments and periodic payments of such
assessments—constitutes ratification of the HOA‘s authority. As
in Frank, Mountaintop‘s challenge to the HOA‘s authority is too
late. And it has not identified any earlier objection to the HOA‘s
authority, or Lot 90‘s inclusion in the HOA, by any prior owner of
the property. All the while, the governing documents have been
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Cite as: 2023 UT 8Opinion of the Court
publicly recorded—and thus available for anyone to review—for
decades.3 And the members of the HOA have recognized and
relied upon the HOA‘s authority and management, accepted the
HOA‘s services, and paid their assessments.
¶48 Lastly, we note that the distinction between the
allegations made in this case and those made in Swan Creek may
have been dispositive had we concluded that the governing
documents were rendered absolutely void by the property
owners‘ missing signature. But as we explained above, supra
¶¶ 26–30, the documents here are voidable, not absolutely void.
So even if they were not signed by the property owners, they are
not incapable of ratification. The only question here is whether
ratification has taken place. And we conclude that the district
court properly applied the rationale behind Swan Creek to the facts
here to determine that the HOA members have collectively
ratified the HOA‘s authority.
III. MOUNTAINTOP HAS NOT SUFFICIENTLY CHALLENGED
THE DISTRICT COURT‘S CALCULATION OF THE UNPAID
ASSESSMENTS
¶49 The district court ordered Mountaintop to pay the entire
amount of unpaid assessments. Mountaintop argues that this was
error because it should not be liable for the entire amount when it
owns only a 50 percent interest in Lot 90.
¶50 Mountaintop relies on section 57-8a-201(1) of the
Community Association Act (Act), which states that ―[a]n owner
__________________________________________________________
3 In Frank, we note the relevance of a lack of a
contemporaneous objection to Charles Lewton‘s alleged actions.
Hi-Country Ests. Homeowners Ass’n, Phase II v. Frank, 2023 UT 7,
¶ 73 n.7, --- P.3d ---. In Swan Creek, at the time of the homeowners
association‘s formation, no questions were raised as to its
authority and ―the new HOA immediately began to act under the
terms of the Declaration.‖ Swan Creek Vill. Homeowners Ass’n v.
Warne, 2006 UT 22, ¶ 5, 134 P.3d 1122. Similarly, Mountaintop has
not alleged that any previous owner of Lot 90 objected to its
inclusion in the HOA or the formation of the HOA. While
Mountaintop asserts, as do the trusts in Frank, that Charles
Lewton encumbered land he did not own, there is no record
evidence that any prior owner of Lot 90 did anything other than
acquiesce to Lewton‘s actions.
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HI-COUNTRY ESTATES v. MOUNTAINTOP
Opinion of the Court
shall pay the owner‘s proportionate share of . . . any . . .
assessments levied by the association.‖ UTAH CODE § 57-8a-201(1).
Mountaintop notes that the Act requires any payment to be ―in
the amount and at the time determined by the board of directors
in accordance with the terms of the: (a) declaration; or (b)
bylaws.‖ Id. § 57-8a-201(2). And Mountaintop contends that
requiring it to pay the entire assessment violates the 1980
Covenants, which state that ―[e]ach grantee and lot owner . . .
agrees to pay annually his pro-rata share‖ of annual assessments.
Mountaintop asserts that the plain language of these two sources
suggests that assessments are meant to be levied ―against lot
owners, not lots‖ and ―made on a pro-rata basis.‖ And it argues
that the district court erred in imposing 100 percent of the unpaid
assessments on a 50 percent owner.
¶51 However, other than asserting that the terms
―proportionate‖ and ―pro rata‖ refer to ownership interests rather
than lots, Mountaintop does not provide any interpretive or legal
analysis to explain why this is so. And it does not explain why the
district court was wrong in concluding that those terms referred
to lots rather than ownership interests.
¶52 Accordingly, Mountaintop has failed to carry its burden
of persuasion on this issue. ―It is the appellant‘s job to tell us
where and how the district court went wrong.‖ Pinder v. Duchesne
Cty. Sheriff, 2020 UT 68, ¶ 36, 478 P.3d 610; Kendall v. Olsen,
2017 UT 38, ¶ 12, 424 P.3d 12 (―Our rules of appellate procedure
place the burden on the appellant to identify and brief any
asserted grounds for reversal of the decision below.‖). To carry its
burden of persuasion on appeal, the appellant ―must assert
contentions of error that occurred in the proceedings below and
develop a reasoned argument for why the purported errors
should be reversed.‖ Pinder, 2020 UT 68, ¶ 36 (quoting Anderson v.
Anderson, 2018 UT App 19, ¶ 24, 414 P.3d 1069); see also UTAH R.
APP. P. 24(a)(8) (stating that an appellant must ―explain, with
reasoned analysis supported by citations to legal authority and
the record, why the party should prevail on appeal‖). Without
meeting this threshold, we cannot conclude that the district court
committed reversible error.
¶53 Here, Mountaintop simply points to the words
―proportionate‖ and ―pro-rata‖ in the Community Association
Act and 1980 Covenants and asserts that these words require
assessments to be apportioned based on its 50 percent ownership
interest in Lot 90. But without more, Mountaintop has not
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Cite as: 2023 UT 8Opinion of the Court
persuaded us that the district court erred in concluding that the
proportionate share was based on lots rather than percentage of
ownership. Accordingly, we affirm the district court‘s damages
award.
IV. THE HOA IS ENTITLED TO AN AWARD OF ITS
ATTORNEY FEES ON APPEAL
¶54 Both parties request attorney fees under Utah Code
section 57-8a-306, which allows a prevailing party to recover its
costs and reasonable attorney fees in a judicial action brought
under the Utah Community Association Act. Because the HOA
has prevailed on appeal, we conclude that it is entitled to its
attorney fees under this provision. We leave the amount of the
fees to be determined by the district court.
CONCLUSION
¶55 Protective covenants that were not signed by the property
owner are voidable, but not void as against public policy. This
means that they are capable of ratification. Here, the district court
correctly ruled that the members of the HOA have ratified the
HOA‘s authority to assess lots within its boundaries. Accordingly,
the HOA had the authority to assess Lot 90. And Mountaintop has
not persuaded us that the district court miscalculated the unpaid
assessments it owes the HOA. Finally, as the prevailing party, the
HOA is entitled to its attorney fees on appeal. We affirm.
17