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Scott Welker

Scott has worked in the real estate industry for more than 10 years. He first began practicing law in Arizona where he worked for a mid-sized firm as general real estate attorney representing clients in real estate transactions, foreclosure law, and litigation. He and his wife eventually moved to Lehi, Utah where he opened his own practice that focused on HOA Law. After two years of successfully running his own law firm, Scott accepted a position at VF Law, where he continues representing HOAs in general matters including drafting, amending, and interpreting governing documents, litigation, easement issues, contract issues, collections, and general legal counsel. Scott is licensed in Arizona and Utah.

Scott's Recent Posts

Rules about rules

When an association considers adopting new regulations, they often turn to their declaration (CC&Rs) or bylaws. Association rules are sometimes overlooked and underutilized. However they can be the most efficient and flexible means for implementing restrictions or procedures. One of the primary difference between Association Rules and other governing documents is that, generally speaking, an association board can adopt, cancel, or modify rules without the general membership voting on the matter. This is done by a simple resolution. There are, however, some legal principles to be aware of. First, rules must be created under the authoritative umbrella of the declaration. Even in PUD associations where there is express, statutory authority for a board to create rules, your declaration should have enabling language that grants the board rule-making authority. A rule cannot exceed the authority of your other governing documents nor can it contradict them. In a sense, rules are where the rubber really hits the road for association regulations. Your other governing documents might speak generally about a board's authority to regulate activity on common area, but the rules are often where more detailed provisions will be found such as who may access facilities and at what times. That being the case, a board runs the risk of violating the Fair Housing Act or, in some cases, even the Americans with Disabilities Act when crafting rules. For that reason (and others) it is advisable to consult with an attorney on any rule changes. After rules changes are drafted, the board needs to adopt them. If yours is a PUD (non-condominium) association, you are required to do the following:
  • At least 15 days before meeting to discuss the change, deliver written notice to each owner that the change is being considered;
  • At the meeting, provide an open forum for members to be heard before conducting a board-vote on the change;
  • Within 15 days after the change is made, deliver a copy of the change to each owner.
The same process is not required in condominium associations but, in those associations, you will, of course, need to deliver copies of any rule changes to all members. Rules are very useful to an association when used correctly. A living document containing all the rules in one place should be maintained and made accessible to the members. I recommend using rules to their full capacity. Be sure, though, that you are drafting legally enforceable rules and following the appropriate procedures for implementation so that when it comes time to enforce, your efforts won't be defeated.

Avoiding Pitfalls in an HOA Transaction

For a real estate agent, an HOA can add headaches to an already painful transaction. Your client's lender has asked you to jump through hoops, the title company is requiring you to do it without the use of your legs, and now the HOA has decided to light the hoops on fire just for good measure. Read More…

Keeping Up With Legislation

A board member in a small, close-knit community recently posed a question to me that I have heard many times in one form or another. He asked, if a local ordinance already bans an activity the HOA is trying to stop, is there any point to the HOA banning the same activity in their governing documents? Can't the board simply call on the city when enforcement is required?

Most of the time, if local law bans a certain activity, that law will be enforceable within the boundaries of your association, regardless of whether your governing documents ban the same activity. However, a more complete answer to the question above requires a discussion about best practices.

[quote align="center" color="#999999"]…in order for the Association to have any authority to enforce a regulation, that regulation must be in the governing documents.[/quote]

Associations should be striving to craft governing documents, not just to provide some means for order, but to provide the most effective means for order. In some instances, that could well mean creating rules and regulations that mirror local ordinances and laws that already exist. Why? Because, in order for the Association to have any authority to enforce a regulation, that regulation must be in the governing documents. Read More…

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