§ 13-79-104 — Advisory opinion -- Process of advisory opinions.

(1) A lot owner, a unit owner, an association of lot owners, or an association of unit owners may request a written advisory opinion:
(1)(a) from the office to determine compliance with:
(1)(a)(i) Title 57, Chapter 8, Condominium Ownership Act, and Title 57, Chapter 8a, Community Association Act; or
(1)(a)(ii) other applicable statutes of this state; and
(1)(b) at any time before the commencement of:
(1)(b)(i) an action in a court with jurisdiction; or
(1)(b)(ii) binding arbitration.
(2) (2)(a) A person making a request for an advisory opinion described in Subsection (1) shall:
(2)(a)(i) file the request with the office;
(2)(a)(ii) pay a filing fee of $150; and
(2)(a)(iii) (2)(a)(iii)(A) file the request no later than one year after the day on which the person making the request knew or should have known about the alleged act that is the subject of the advisory opinion; and
(2)(a)(iii)(B) include in the request facts that demonstrate that the person submits the request no later than a year after the day on which the person making the request knew or should have known about the alleged act that is the subject of the advisory opinion.
(2)(b) A person making a request under this Subsection (2) may allege actual damages as a result of the alleged act that is the subject of the advisory opinion.
(3) The office may establish policies providing for partial fee waivers for a person who is financially unable to pay the entire fee described in Subsection (2)(a)(ii).
(4) (4)(a) The office may not issue an advisory opinion unless the person requesting an advisory opinion exhausts all existing procedures provided in:
(4)(a)(i) the governing documents of an association of lot owners, if the dispute involves a lot owner; or
(4)(a)(ii) the governing documents of an association of unit owners, if the dispute involves a unit owner.
(4)(b) A person requesting an advisory opinion shall include in the person's complaint a description of how that person exhausted all existing procedures provided in the applicable governing documents.
(5) Upon receipt of a request for an advisory opinion, the office shall:
(5)(a) inquire of all parties if there are other necessary parties to the dispute;
(5)(b) determine whether the person bringing the request has exhausted all existing procedures provided in the applicable governing documents; and
(5)(c) deliver notice of the request to the opposing parties indicated in the request and any other necessary party identified in accordance with Subsection (5)(a).
(6) Subject to Subsection (7), after analyzing a complaint, the office shall:
(6)(a) issue a written advisory opinion addressing the issues described in the request for an advisory opinion;
(6)(b) include in the advisory opinion a statement of the facts and law supporting the opinion's conclusions; and
(6)(c) deliver copies of the advisory opinion to all necessary parties identified in accordance with Subsection (5)(a).
(7) (7)(a) The office shall issue a written statement declining to issue an advisory opinion when, in the opinion of the office:
(7)(a)(i) the issues are not ripe for review;
(7)(a)(ii) the person bringing the request has not exhausted all existing procedures provided in the applicable governing documents; or
(7)(a)(iii) the issues raised are beyond the scope of the office's statutory duty to review.
(7)(b) Notwithstanding Subsection (7)(a), the office shall issue a written statement declining to review a request, if the request deals solely with a contractual dispute.
(8) (8)(a) (8)(a)(i) If in the process of issuing an advisory opinion, the office determines that a person knowingly filed a false or fraudulent request for an advisory opinion, the office shall prohibit that person from filing a complaint with the office for two years after the day on which the office makes the determination.
(8)(a)(ii) The office may impose a civil penalty of up to $1,000 against a person if the office determines under this Subsection (8)(a) that the person filed a false or fraudulent request for an advisory opinion.
(8)(b) (8)(b)(i) The office may designate a person as a vexatious filer if the person has filed a request for three or more advisory opinions and for each request the office:
(8)(b)(i)(A) determines that the person requesting the advisory opinion has not exhausted all existing procedures, as described in Subsection (4)(a);
(8)(b)(i)(B) declines to issue an advisory opinion, as described in Subsection (7)(a); or
(8)(b)(i)(C) determines that the request deals solely with a contractual dispute, as described in Subsection (7)(b).
(8)(b)(ii) If the office designates a person as a vexatious filer under this Subsection (8)(b), the office may not accept a request by the person unless:
(8)(b)(ii)(A) the person submits a written copy of the request to the executive director of the department; and
(8)(b)(ii)(B) the executive director of the department authorizes the person to file the request for the advisory opinion with the office.
(9) The party that requests the advisory opinion shall pay the filing fee described in Subsection (2)(a)(ii), unless the office issues an advisory opinion in favor of the party that requests the advisory opinion, in which case all necessary parties shall share the cost of the filing fee equally.
(10) An advisory opinion issued under this section is neither binding on any party to, nor admissible as evidence in, a dispute involving an association of lot owners or an association of unit owners, except as provided in Subsection (11).
(11) (11)(a) As used in this Subsection (11), "qualifying conditions" means:
(11)(a)(i) the office issues an advisory opinion described in this section;
(11)(a)(ii) the same issue that is the subject of the advisory opinion is subsequently litigated in court; and
(11)(a)(iii) the court rules in favor of the same party as the advisory opinion in a final judgment.
(11)(b) If the qualifying conditions are met, the court may award the substantially prevailing party:
(11)(b)(i) reasonable attorney fees and court costs relating to the development of the cause of action from the date the office delivers the advisory opinion to the date of the court's resolution; and
(11)(b)(ii) if the court finds that the opposing party knowingly and intentionally violated the law governing the cause of action, a civil penalty of $250 for each day described in Subsection (12).
(12) The civil penalty described in Subsection (11)(b):
(12)(a) begins to accrue on the later of:
(12)(a)(i) 30 days after the day on which the office delivers the advisory opinion; or
(12)(a)(ii) the day on which the substantially prevailing party or opposing party filed the action in court; and
(12)(b) ends the day on which the court enters a final judgment.

Legislative History

Enacted by Chapter 226, 2025 General Session