WDIS v. Hi-Country Estates ( 2022 )


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  •                              
    2022 UT 17
    IN THE
    SUPREME COURT OF THE STATE OF UTAH
    WDIS, LLC as Trustee of the MDMG TRUST, Dated April 25, 2016, and
    DREAMWORKS PROPERTY MANAGEMENT, INC. as Trustee of the STEP
    MOUNTAIN ROAD LAND TRUST, Dated November 6, 2007,
    Appellants,
    v.
    HI-COUNTRY ESTATES HOMEOWNERS ASSOCIATION, PHASE II,
    Appellee.
    No. 20200849
    Heard February 9, 2022
    Filed April 28, 2022
    On Appeal of Interlocutory Order
    Third District, Salt Lake
    The Honorable Laura S. Scott
    No. 160904994,
    (consolidated with Nos. 170903466, 170904171, 190909656)
    Attorneys:
    Troy L. Booher, Beth E. Kennedy, Taylor P. Webb, Bruce R. Baird,
    Salt Lake City, Landon A. Allred, South Jordan, for appellants
    Stephen T. Hester, Bradley M. Strassberg, Salt Lake City, for appellee
    CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
    JUSTICE PEARCE, JUSTICE PETERSEN, JUDGE MORTENSEN, and
    JUDGE TENNEY joined.
    Having recused themselves, ASSOCIATE CHIEF JUSTICE LEE and
    JUSTICE HIMONAS do not participate herein;
    COURT OF APPEALS JUDGE DAVID N. MORTENSEN and
    COURT OF APPEALS JUDGE RYAN D. TENNEY sat.
    CHIEF JUSTICE DURRANT, opinion of the Court:
    WDIS v. HI-COUNTRY ESTATES
    Opinion of the Court
    Introduction
    ¶1 In 1973, Charles Lewton signed and recorded documents
    purporting to create a homeowners association covering 2,000 acres
    of land near rural Herriman, Utah. He sought to make that land
    subject to various restrictive covenants. Years later, a group of
    landowners (the Landowners) purchased properties within the
    HOA‘s boundaries. But in 2015, during a protracted dispute over the
    Landowners‘ attempts to develop their property, they discovered
    that Mr. Lewton had owned just a single eight-acre parcel of the
    2,000 acres he purported to include within the HOA, and no other
    landowners had signed the recorded documents.
    ¶2 Based upon this information, the Landowners sued to quiet
    title to their property. They filed a motion for summary judgment,
    arguing that the HOA and its subsequently amended restrictive
    covenants were void ab initio (from the beginning) based on a public
    policy invalidating covenants not signed by the affected landowner.
    The district court denied the motion, and the Landowners appealed.
    On appeal, the Landowners argue the covenants must be declared
    absolutely void under the test established in Ockey v. Lehmer1
    because they violate public policy as articulated in the Wrongful
    Lien Act (WLA), the statute of frauds, and Utah caselaw. But because
    these authorities do not evince the public policy the Landowners
    suggest, we affirm the district court‘s decision.
    Background
    ¶3 The Hi-Country Estates Homeowners Association, Phase II
    (the HOA), encompasses approximately 2,000 acres of land near
    Herriman, Utah. The HOA was established in 1973, and, sometime
    thereafter, the Landowners began purchasing property within its
    boundaries.2
    _____________________________________________________________
    1   
    2008 UT 37
    , 
    189 P.3d 51
    .
    2 The Landowners are: (i) WDIS, LLC, as Trustee for the MDMG
    Trust, dated April 25, 2016; (ii) Dreamworks Property Management,
    Inc., as Trustee of the Step Mountain Road Land Trust, dated
    November 6, 2007; (iii) Tanaka, LLC; (iv) Brandon Frank; (v) SMR,
    LLC as trustee of the 64K Trust, dated January 15, 2015; the CA
    Trust, dated January 5, 2015; the SB Trust, dated December 29, 2014;
    the E-36 Trust, dated July 15, 2015; the LR Trust, dated January 22,
    (continued . . .)
    2
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    Opinion of the Court
    ¶4 Eventually, the Landowners attempted to develop their
    properties. But they claim they have been prevented from doing so
    because the HOA refuses to provide the necessary infrastructure.
    This has led to years of litigation between the Landowners and the
    HOA, beginning with a derivative suit brought by the Landowners
    in 2009, alleging that the HOA did not treat all lot owners equally.
    We reversed the district court‘s dismissal of that case in Hi-Country
    Property Rights Group v. Emmer.3
    ¶5 Later, in 2015, the Landowners obtained documents that they
    argue prove ―serious problems with the validity of the HOA‘s
    governing documents.‖ They discovered that the HOA‘s governing
    documents, including various restrictive covenants, were signed and
    recorded by Charles Lewton, who owned a mere eight of the two
    thousand acres (0.4%) he sought to include within the boundaries of
    the HOA. The covenants lacked the signature of any other
    landowner, and there are apparently no other documents in which
    the other landowners authorized the HOA covenants to be recorded
    on their properties.
    ¶6 The covenants were amended in 1980, changing the
    boundaries of the HOA. These amendments were signed by three
    members of the HOA‘s board, professedly ―in response to the wishes
    of the majority of the Association Members during the Annual
    Membership Meeting.‖ But, as with the original covenants, there is
    apparently no written document signed by the owners of the
    affected properties authorizing the 1980 amendments.
    ¶7 After learning this information, the Landowners sued the
    HOA to quiet title to their properties. (One Landowner, WDIS, also
    purchased nine more parcels.) Once again, we reversed the district
    court‘s dismissal of the case, remanding for the district court ―to
    determine whether the HOA‘s encumbrances are void or voidable.‖4
    ¶8 Upon remand, the district court consolidated the case with
    several others in which the HOA sought to enforce certain
    assessments it had levied against the Landowners. The Landowners
    2015; and the LAM 5 Trust, dated February 2, 2015; (vi) J&S Property
    Ventures, LLC; and (vii) Step Mountain, LLC.
    3   
    2013 UT 33
    , ¶ 12, 
    304 P.3d 851
    .
    4See WDIS, LLC v. Hi-Country Ests. Homeowners Ass’n, 
    2019 UT 45
    ,
    ¶¶ 59–60, 
    449 P.3d 171
    .
    3
    WDIS v. HI-COUNTRY ESTATES
    Opinion of the Court
    filed an amended complaint to quiet title and then filed the motion
    for summary judgment that we review in this case.
    ¶9 As exhibits to their summary judgment motion, the
    Landowners attached evidence that the individuals who signed the
    covenants in 1973 and 1980 did not own most of the land they
    sought to restrict, including the properties now owned by the
    Landowners. They argued that the restrictive covenants were void
    ab initio and therefore incapable of ratification. They based their
    argument on public policy reflected in such authority as the WLA,
    the statute of frauds, and Utah caselaw.
    ¶10 The district court denied the Landowners‘ motion, applying
    the two-factor test we set forth in Ockey v. Lehmer, which directs
    courts to examine (1) whether the law has already declared the type
    of contract at issue to be ―absolutely void as against public policy‖
    and (2) whether such contract harms the general public.5 As to the
    first factor, the district court disagreed with the Landowners that the
    WLA and the statute of frauds evinced a clear public policy against
    the covenants. And as to the second factor, the court found that the
    covenants potentially harmed only the landowners within the
    HOA‘s purported jurisdiction and not the public as a whole.6
    ¶11 The Landowners‘ summary judgment motion having been
    denied, the case is set to proceed to trial. We agreed to consider the
    Landowners‘ interlocutory appeal. We have jurisdiction pursuant to
    Utah Code § 78A-3-102(3)(j).
    _____________________________________________________________
    5 
    2008 UT 37
    , ¶ 24, 
    189 P.3d 51
    ; see also Wittingham, LLC v. TNE
    Ltd. P’ship, 
    2020 UT 49
    , ¶¶ 24–25, 
    469 P.3d 1035
     (rearticulating and
    applying the two Ockey factors).
    6  The HOA opposed the motion, in part, on the ground that the
    Landowners had ratified the covenants. The district court declined to
    decide the motion on such grounds. As the court pointed out, ―the
    HOA did not file a cross motion for summary judgment on
    ratification‖ and there were ―disputed material facts‖ regarding the
    issue. Similarly, we do not consider the arguments the HOA makes
    on appeal that relate to whether the Landowners ratified the
    covenants.
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    Opinion of the Court
    Standard of Review
    ¶12 ―On interlocutory appeal, we review grants and denials of
    summary judgment for correctness.‖7 Summary judgment is
    appropriate ―if there are no genuine issues of material fact and the
    moving party is entitled to judgment as a matter of law.‖8 ―We view
    the facts and indulge reasonable inferences in the light most
    favorable to [the HOA], the nonmoving party.‖9
    Analysis
    ¶13 The Landowners argue that because the restrictive covenants
    in this case were not signed by the affected property owners, they
    are void ab initio. We disagree and affirm the district court‘s
    decision.
    I. The Restrictive Covenants Are Voidable, Not Void Ab Initio
    ¶14 In Ockey v. Lehmer, we were asked to determine whether a
    conveyance of an interest in property was void ab initio or merely
    voidable where the transferors lacked authority to convey the
    property.10 We explained that the ―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 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.‖11
    ¶15 In making this determination, we ―start with the
    presumption that contracts are voidable unless they clearly violate
    public policy.‖12 And due to this presumption, the Landowners‘
    showing that the covenants13 violate public policy must be ―free
    from doubt.‖14
    _____________________________________________________________
    7   Fitzgerald v. Spearhead Invs., LLC, 
    2021 UT 34
    , ¶ 11, 
    493 P.3d 644
    .
    8   
    Id.
     (citation omitted).
    9   
    Id.
    10   
    2008 UT 37
    , ¶¶ 15, 17, 
    189 P.3d 51
    .
    11   Id. ¶ 18 (citations omitted).
    12   Id. ¶ 21.
    13―A real estate covenant is a contract . . . .‖ Wise v. Harrington
    Grove Cmty. Ass’n, 
    584 S.E.2d 731
    , 739 (N.C. 2003).
    14   Ockey, 
    2008 UT 37
    , ¶ 21 (citation omitted).
    5
    WDIS v. HI-COUNTRY ESTATES
    Opinion of the Court
    ¶16 The Landowners argue, although they do not brief the issue
    extensively, that the presumption does not apply here because it
    arises from parties‘ freedom to contract and that in this case, ―the
    protective covenants at issue were not contractual‖ because ―they
    did not involve two parties agreeing to perform acts in relation to
    each other.‖ We conclude that applying the presumption is
    appropriate.
    ¶17 We acknowledge that the covenants at issue here differ from
    a traditional contract in that, initially, they were unilaterally
    imposed. But even under these circumstances, the freedom to
    contract is implicated because the question we are resolving is
    whether parties ―of full age and competent understanding‖15 are free
    either to accept or reject those covenants later on. And there are
    other reasons, beyond the freedom of contract, to apply the
    presumption.
    ¶18 For one, voiding the covenants ab initio is a severe remedy.
    As long as the party affected by a defective covenant is free either to
    ratify or reject such a covenant, it is usually unnecessary for the court
    to make that decision for her by voiding it altogether. And because
    simply declaring the covenant voidable will normally be an
    adequate remedy, the covenant should clearly violate public policy
    before we declare it absolutely void. That is why we have applied
    the presumption even where the contract at issue was entered for a
    fraudulent purpose.16
    ¶19 Another reason for applying the presumption is that voiding
    even defective covenants will upset certain reliance interests. And in
    some cases, like this one, where the covenants have existed for
    decades, those interests may be especially substantial.
    ¶20 Having explained why the presumption of voidability
    applies, we turn to whether the Landowners have overcome it. In
    Ockey, we held that the unauthorized conveyance of a property
    interest was merely voidable.17 In making that determination, we
    noted first that no statute had declared the type of transaction
    absolutely void as against public policy, and second, the
    _____________________________________________________________
    15   See 
    id.
     (citation omitted).
    16See Wittingham, LLC v. TNE Ltd. P’ship, 
    2020 UT 49
    , ¶¶ 8, 25, 
    469 P.3d 1035
    .
    17   
    2008 UT 37
    , ¶¶ 24–25.
    6
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    Opinion of the Court
    unauthorized transfer affected only the rightful owner—not the
    general public.18
    ¶21 Later, in Wittingham, LLC v. TNE Limited Partnership, we
    characterized our observations in Ockey as a two-factor test for
    ―determining whether a contract clearly violates public policy.‖19
    The test asks ―(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.‘‖20
    ¶22 We discuss each factor in turn and hold that the restrictive
    covenants at issue are voidable, not absolutely void, and affirm the
    district court.
    A. The Statutes and Caselaw Cited by the Landowners Do Not Evince a
    Clear Public Policy Declaring the Restrictive Covenants Absolutely Void
    ¶23 The Landowners argue that three sources of public policy
    make the restrictive covenants at issue absolutely void. These are
    (A) the WLA, (B) the statute of frauds, and (C) Utah caselaw. Below,
    we explain why we disagree with the Landowners‘ conclusions
    about each source of law.
    1. The Wrongful Lien Act Is Not a Source of Public Policy
    Compelling Us to Declare the Covenants Void Ab Initio
    ¶24 The first statute the Landowners cite as a source of public
    policy is the WLA. They argue that the WLA ―confirms that an
    encumbrance is void if it is not signed by the owner.‖ The Act
    defines a wrongful lien to include ―any document that purports to
    create . . . [an] encumbrance on an owner‘s interest in certain real
    property‖ if it is not expressly authorized by statute, authorized by a
    court, or ―signed by . . . the owner of the real property.‖21 And it
    directs courts to declare wrongful liens ―void ab initio.‖22 So, the
    Landowners argue, because the restrictive covenants are
    _____________________________________________________________
    18   Id. ¶ 24.
    19 
    2020 UT 49
    , ¶ 24 (footnotes omitted) (quoting Ockey, 
    2008 UT 37
    , ¶ 23).
    20   
    Id.
    21   UTAH CODE § 38-9-102(12).
    22   Id. § 38-9-205(5)(a).
    7
    WDIS v. HI-COUNTRY ESTATES
    Opinion of the Court
    ―encumbrances‖ that were not authorized by a document signed by
    the owners of the encumbered land, they are void ab initio.
    ¶25 We disagree. Although a restrictive covenant could be
    considered an encumbrance, we are not convinced it is the sort of
    encumbrance contemplated by the WLA. An ―encumbrance‖ may be
    defined broadly as ―any property right that is not an ownership
    interest.‖23 Thus defined, an encumbrance may well include a
    restrictive covenant because neighboring property owners have the
    ―property right‖ to enforce such a covenant. But the term may also
    be defined more narrowly as a ―claim or liability that is attached to
    property . . . that may lessen its value, such as a lien or mortgage.‖24
    The latter definition is less likely to include a restrictive covenant.
    And it is also the definition we find more applicable to the WLA.
    ¶26 The WLA, as its name suggests, is focused on liens, not on all
    nonpossessory property interests. A ―lien‖ is generally understood
    to be a ―legal right or interest that a creditor has in another‘s
    property, lasting [usually] until a debt or duty that it secures is
    satisfied.‖25 This comports more closely with the narrow ―claim or
    liability‖ definition of ―encumbrance‖ than it does with the broader
    ―property right‖ definition.
    ¶27 Given the Act‘s focus on liens and the different definitions of
    ―encumbrance,‖ it is at least ambiguous whether the WLA would
    apply to restrictive covenants. And where such ambiguity exists,
    ―we read the statute in harmony with other statutes under the same
    and related chapters.‖26 The WLA is codified under Title 38 of the
    Utah Code, the subject of which is ―Liens.‖ There are many types of
    liens addressed in the thirteen chapters of Title 38—everything from
    construction liens to airline liens—but neither covenants, generally,
    nor restrictive covenants, specifically, are ever mentioned.
    _____________________________________________________________
    23   Encumbrance, BLACK‘S LAW DICTIONARY (11th ed. 2019).
    24  Id.; see also Encumbrance, MERRIAM-WEBSTER DICTIONARY,
    https://www.merriam-webster.com/dictionary/encumbrance (last
    visited Apr. 14, 2022) (defining ―encumbrance‖ as ―a claim (such as a
    mortgage) against property‖).
    25Lien, BLACK‘S LAW DICTIONARY (11th ed. 2019) (emphasis
    added).
    26 Wittingham, 
    2020 UT 49
    , ¶ 26 (citation omitted) (internal
    quotation marks omitted).
    8
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    Opinion of the Court
    ¶28 In short, we cannot say that an Act directed at wrongful liens
    ―provides a well-defined and dominant public policy supporting the
    conclusion‖ that restrictive covenants not signed by the proper
    landowners are void.27 Even if the Landowners are correct that the
    restrictive covenants at issue are encumbrances that technically fit
    within the WLA‘s definition of ―wrongful lien,‖ such a conclusion is
    not ―free from doubt,‖ for the reasons we have identified.28
    ¶29 Additionally, we agree with the district court‘s conclusion
    that ―the mere fact the 1980 Covenants may be ultimately
    determined to be invalid does not necessarily make them wrongful
    or void ab initio under the Act.‖ Under the Act‘s definition of
    ―wrongful lien,‖ a lien is not wrongful if it is ―expressly authorized‖
    by statute.29 In Hutter v. Dig-It, Inc., we interpreted the meaning of
    the phrase ―expressly authorized‖ as used in the WLA.30 There, the
    appellees argued that a mechanic‘s lien imposed in violation of the
    requirements of the Mechanic‘s Lien Act was a ―wrongful lien‖
    under the WLA. They reasoned that ―an unenforceable lien cannot
    be expressly authorized by statute.‖31 We disagreed, holding that the
    phrase ―not expressly authorized by . . . statute‖ ―does not include
    statutorily created liens,‖ even where such liens are invalid and
    unenforceable under the statute that governs the lien.32 So we
    determined that because the type of lien at issue was authorized by
    the Mechanic‘s Lien Act, it could not be a ―wrongful lien‖ under the
    WLA, even though it was ultimately unenforceable. The
    Landowners‘ arguments in this case ignore Hutter‘s holding. Even
    though, as the Landowners point out, no statute ―allows protective
    covenants to become valid if they are signed without the
    _____________________________________________________________
    27   Id. ¶ 27.
    28   See id. ¶ 25.
    29   UTAH CODE § 38-9-102(12).
    30   
    2009 UT 69
    , ¶¶ 46, 49, 
    219 P.3d 918
    .
    31  Id. ¶ 46. This is similar to the Landowners‘ argument in this
    case that, although the Community Association Act authorizes the
    recording of restrictions in HOA boundaries, it does not authorize
    restrictions that are not signed by the proper landowners—so such
    restrictions cannot be authorized under the WLA.
    32   Id. ¶ 52.
    9
    WDIS v. HI-COUNTRY ESTATES
    Opinion of the Court
    landowner‘s knowledge or consent,‖ the fact that a statute allows
    them at all removes them from the WLA‘s purview.33
    ¶30 For the reasons we have articulated, the WLA does not
    provide ―a well-defined and dominant public policy supporting the
    conclusion that the type of contract at issue in this case is void.‖34
    2. The Statute of Frauds Is Not a Source of Public Policy Compelling
    Us to Declare the Covenants Void Ab Initio
    ¶31 The Landowners next argue that the statute of frauds,
    particularly Utah Code sections 25-5-1 and 25-5-3, expresses a clear
    public policy that ―conveyances and encumbrances that are not
    signed by the owner are unlawful and absolutely void.‖ We
    disagree. The statute of frauds does not lead to a conclusion ―free
    from doubt‖ that all conveyances and encumbrances not signed by
    the property owner are completely void and incapable of ratification.
    This is so for two reasons. First, the primary purpose of the statute of
    frauds is evidentiary—to require that certain important agreements
    be evidenced by a writing and signed by the person being charged
    with the agreement. Its purpose is not to make all unsigned contracts
    regarding property rights absolutely void. And second, the statute of
    frauds contains several exceptions, which fact cuts against the
    Landowner‘s assertion that the statute of frauds declares the
    restrictive covenants at issue completely void and incapable of
    ratification.35
    _____________________________________________________________
    33 We agree with the Landowners that the ultimate question we
    must answer is not whether all restrictive covenants are absolutely
    void, but whether they ―are absolutely void if they were entered into
    without the property owner‘s knowledge or consent.‖ But because
    the Landowners invoke the WLA, we must analyze that question in
    light of the WLA as it has been interpreted. And the WLA simply
    does not apply to categories of liens or encumbrances that have been
    authorized by statute generally, even where the specific
    encumbrance at issue is defective under the authorizing statute.
    34   Wittingham, 
    2020 UT 49
    , ¶ 27.
    35 When discussing the statute of frauds issue, the district court
    assumed that the restrictive covenants do not comply with the
    statute. For purposes of this opinion we also assume, without
    deciding, that the restrictive covenants do not comply with the
    statute of frauds.
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    Opinion of the Court
    ¶32 The Landowners point to Utah Code sections 25-5-1 and 25-
    5-3, claiming that these sections render the restrictive covenants
    void. Utah Code section 25-5-1 states, in relevant part, that ―[n]o
    estate or interest in real property . . . shall be created, granted,
    assigned, surrendered or declared otherwise than . . . by deed or
    conveyance in writing subscribed by the party creating, granting,
    assigning, surrendering or declaring the same.‖ Similarly, Utah Code
    section 25-5-3 states that ―[e]very contract . . . for the sale, of any
    lands, or any interest in lands, shall be void unless the contract, or
    some note or memorandum thereof, is in writing subscribed by the
    party by whom the . . . sale is to be made.‖ These two provisions
    establish a general rule that for agreements regarding interests in
    real property, the agreement must be evidenced by a writing that is
    signed by the person against whom the agreement is being enforced.
    ¶33 The purpose of the statute of frauds is not, as the
    Landowners argue, to completely void all agreements not signed by
    the owner of real property. The statute‘s ―primary purpose . . . is
    evidentiary, to require reliable evidence of the existence and terms of
    the contract and to prevent enforcement through fraud or perjury of
    contracts never in fact made.‖36 The high evidentiary standard of the
    statute of frauds demonstrates the legislature‘s judgment that ―it is
    preferable to invalidate a few otherwise legitimate agreements
    because they were not written than to burden the system and the
    citizenry with claims premised on bogus, unwritten agreements.‖37
    _____________________________________________________________
    36 RESTATEMENT (SECOND) OF CONTRACTS § 131, cmt. c (AM. L. INST.
    1981); see also Martin v. Scholl, 
    678 P.2d 274
    , 275 (Utah 1983) (stating
    that the purpose of the statute of frauds is to impose ―a high
    evidentiary standard by which oral real estate contracts must be
    proved to qualify for a specific performance‖ (citation omitted));
    Guinand v. Walton, 
    450 P.2d 467
    , 469 (Utah 1969) (―The purpose of the
    statute [of frauds] is that certain matters of great importance such as
    the conveyance of real estate should be protected against frauds and
    perjuries.‖).
    37Coleman v. Stuart, 
    2019 UT App 165
    , ¶ 36, 
    451 P.3d 658
     (citation
    omitted). The Landowners cite this language as ―conclusively
    establish[ing] that the protective covenants here are void ab initio
    under Ockey.‖ But that is not what Coleman says. The cited language
    merely recognizes that, in instances where the statute of frauds is
    applied, some otherwise legitimate unwritten agreements will not be
    enforced due to lack of evidence.
    11
    WDIS v. HI-COUNTRY ESTATES
    Opinion of the Court
    Given this largely evidentiary purpose of the statute of frauds, we
    cannot say that the statute proclaims a clear public policy that all
    encumbrances and conveyances not signed by the property owner
    are absolutely void.
    ¶34 In addition to the statute of frauds‘ evidentiary purpose, the
    fact that the statute contains several exceptions also weighs against a
    finding that the statute evinces a public policy that all non-
    complying contracts are void ab initio. One of these exceptions,
    which allows a court to grant specific performance of non-complying
    contracts in the case of part performance, is embedded in the statute
    of frauds itself at Utah Code section 25-5-8.38 The fact that a court
    may enforce a non-complying contract when the parties have
    partially performed their obligations undermines the conclusion that
    all conveyances and encumbrances not signed by the property
    owner are void.
    ¶35 It is also possible for an agreement that violates the statute of
    frauds to become enforceable through estoppel.39 We find the
    estoppel exception particularly important because, for purposes of
    the void/voidable issue, the doctrines of ratification and estoppel are
    closely related.40 Indeed, we fail to see a meaningful distinction
    between a party‘s being able to ratify an otherwise unenforceable
    agreement and a party being estopped from contesting the
    enforceability of an agreement in litigation. In both cases, the party‘s
    _____________________________________________________________
    38Three elements must be met for the part performance exception
    to apply: (1) ―the oral contract and its terms must be clear and
    definite;‖ (2) ―the acts done in performance of the contract must be
    equally clear and definite;‖ and (3) ―the acts must be in reliance on
    the contract.‖ Randall v. Tracy Collins Tr. Co., 
    305 P.2d 480
    , 484 (Utah
    1956).
    39 Fericks v. Lucy Ann Soffe Tr., 
    2004 UT 85
    , ¶ 14, 
    100 P.3d 1200
    (―[T]o establish the promissory estoppel exception to the statute of
    frauds, [t]he acts and conduct of the promissor must so clearly
    manifest an intention that he will not assert the statute that to permit
    him to do so would be to work a fraud upon the other party.‖
    (second alteration in original) (citation omitted) (internal quotation
    marks omitted)).
    40See Ockey, 
    2008 UT 37
    , ¶ 22, (noting that the difference between
    a void contract and a voidable contract is whether the contract
    ―could become enforceable by ratification or estoppel‖).
    12
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    Opinion of the Court
    conduct renders the otherwise unenforceable agreement
    enforceable—something that could not occur if the agreement was
    void ab initio.41
    ¶36 The fact that a party can waive a statute of frauds defense
    also cuts against the public policy identified by the Landowners.
    There are several ways a party can waive a statute of frauds defense,
    including by (1) failing to plead the statute as an affirmative defense;
    (2) admitting the existence of the agreement in the pleadings; and
    (3) admitting at trial the existence and all essential terms of the
    contract.42 The fact that a party can be bound by a non-complying
    agreement by admitting its existence during litigation is
    incompatible with a conclusion that a non-complying agreement is
    void ab initio and incapable of ratification. If a non-complying
    contract is void ab initio, then it is unenforceable in all
    circumstances.
    ¶37 The Landowners, recognizing the implications of the
    exceptions to the statute of frauds, argue that while ―some
    documents that violate the statute of frauds may be voidable‖ under
    the exceptions, the covenants here are void because none of the
    exceptions apply in this particular case. But whether an exception
    applies in this case is irrelevant in determining whether the statute of
    frauds evinces a clear public policy that the restrictive covenants are
    void ab initio. When searching a statute for legislative declarations of
    public policy, we look only at the ―type of contract at issue‖ and see
    if the legislature has declared that type of contract to be unlawful
    and absolutely void.43 We do not apply the statute directly to the
    _____________________________________________________________
    41 Our conclusion regarding estoppel is also consistent with
    Wittingham. In that case, the issue was whether a contract entered
    into by the partner of a dissolved partnership was void or voidable.
    
    2020 UT 49
    , ¶¶ 5–7, 22. Though the statute at issue did not give the
    partner actual authority to bind the partnership to the contract, 
    id.
    ¶¶ 29–30, we found that the contract was merely voidable, in part,
    because the statute incorporated a partnership by estoppel
    exception. Id. ¶ 34.
    42 See Bentley v. Potter, 
    694 P.2d 617
    , 621 (Utah 1984) (―The statute
    of frauds is a defense that can be waived by a failure to plead it as an
    affirmative defense, admitting its existence in the pleadings, or
    admitting at trial the existence and all essential terms of the
    contract.‖ (citations omitted)).
    43   Wittingham, 
    2020 UT 49
    , ¶ 26.
    13
    WDIS v. HI-COUNTRY ESTATES
    Opinion of the Court
    specific contract at issue in the case. So we reject the Landowners‘
    request to have us consider whether any of the exceptions to the
    statute of frauds apply to the restrictive covenants.44
    ¶38 Because the statute of frauds serves mainly evidentiary
    purposes, and because the statute contains several exceptions that
    allow non-complying contracts to become enforceable, we conclude
    that the statute does not evince a clear public policy that the
    restrictive covenants here are absolutely void and incapable of
    ratification.
    3. Utah Caselaw Includes No Public Policy Compelling Us to Declare
    the Covenants Void Ab Initio
    ¶39 Finally, the Landowners argue that caselaw from this court
    and the court of appeals confirms that restrictive covenants not
    signed by the proper landowner are absolutely void. Although
    judicial opinions, like statutes, may be an independent source of
    public policy for holding contracts void ab initio,45 we do not find
    such a policy clearly established in our caselaw.
    ¶40 Of the cases cited by the Landowners, perhaps the one that
    comes closest to articulating the public policy they would have us
    find is Gunnell v. Hurst Lumber Co.46 There, a set of restrictive
    covenants ostensibly applying to several contiguous parcels of
    property was not signed by the owner of one of the parcels. 47 When
    the plaintiffs in Gunnell sued for a declaratory judgment that the
    subsequent landowner was subject to the restrictions, we affirmed
    the district court‘s contrary determination, citing the statute of
    _____________________________________________________________
    44 In Wittingham, for instance, we did not decide whether any of
    the exceptions listed in the relevant statute actually applied to the
    contract at issue. Instead, we decided that the exceptions to the
    statute suggested ―the existence of a general public policy‖ that was
    inconsistent with a finding that the statute ―served as a legislative
    declaration that the type of contract at issue‖ in the case was
    unlawful and absolutely void. Id. ¶ 34.
    45Id. ¶ 24 (explaining that the first Ockey factor is ―whether the
    law or legal precedent has declared that the type of contract at issue is
    ‗unlawful‘ and ‗absolutely void‘‖ (emphasis added) (citing Ockey,
    
    2008 UT 37
    , ¶ 23)).
    46   
    515 P.2d 1274
     (Utah 1973).
    47   Id. at 1274.
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    Opinion of the Court
    frauds and stating that if the plaintiffs had wanted the land to be
    under the restrictive covenants, ―they should have had [the owner]
    sign the document.‖48
    ¶41 As the Landowners point out, the facts of Gunnell are similar
    to those in this case, including the fact that the subsequent
    landowner in Gunnell was aware of the covenants when it purchased
    the property.49 But although we held that the specific covenants at
    issue in Gunnell were unenforceable, we stopped short of
    ―declar[ing] that the type of contract at issue [was] ‗unlawful‘ and
    ‗absolutely void.‘‖50 Because a statement of public policy must be
    clear and ―free from doubt,‖51 a case in which we invalidated
    particular restrictive covenants without a broader statement that
    such covenants are categorically void and incapable of ratification is
    insufficient.52
    ¶42 This insufficiency is also present in Thompson v. Capener,53
    also cited by the Landowners. There, the court of appeals applied the
    statute of frauds to invalidate covenants that were signed by only
    one of two owners.54 But the court also examined whether the non-
    signing owner had ratified the covenants.55 And although the owner
    had not ratified the covenants under the facts of that case, the court,
    by undertaking the ratification analysis acknowledged that
    ratification was possible.56 Accordingly, the Landowners cannot rely
    upon Thompson as a source of public policy invalidating all unsigned
    restrictive covenants.
    _____________________________________________________________
    48   
    Id.
     at 1274–75.
    49   Id. at 1274.
    50   See Wittingham, 
    2020 UT 49
    , ¶ 24 (emphasis added).
    51   Id. ¶ 25.
    52In Gunnell, we did state that knowledge of the covenants on the
    part of the subsequent landowner was ―immaterial.‖ 515 P.2d at
    1275. Although this suggests that the subsequent landowner‘s
    knowledge was insufficient to ratify the covenants, it does not
    suggest that unsigned covenants are never capable of ratification.
    53   
    2019 UT App 119
    , 
    446 P.3d 603
    .
    54   Id. ¶¶ 2, 20.
    55   Id. ¶¶ 8, 16.
    56   Id. ¶ 16.
    15
    WDIS v. HI-COUNTRY ESTATES
    Opinion of the Court
    ¶43 Similarly, the other cases the Landowners cite do not include
    the clear public policy they would have us find. In Metropolitan Water
    District of Salt Lake & Sandy v. SHCH Alaska Trust, we held only that
    the Limited Purpose Local Districts Act did not grant a local district
    authority to enact land use regulations.57 And in Salt Lake County v.
    Metro West Ready Mix, Inc., we held only that a purchaser of property
    is not protected by Utah‘s recording statute if ―he is on notice that
    his grantor has no record title to the property conveyed.‖58 These
    cases simply do not declare that unsigned restrictive covenants are
    absolutely void.59
    ¶44 The Landowners also cite Grassy Meadows Sky Ranch
    Landowners Ass’n v. Grassy Meadows Airport, Inc.60 for the proposition
    that ―amendments to protective covenants are void if they were
    enacted without authority.‖ There, the court of appeals did uphold
    the district court‘s determination that a set of amended restrictive
    covenants were ―void ab initio‖ where a development company
    sought to enact them after the period for amendments provided by
    the original covenants had passed.61 But like the other cases, Grassy
    Meadows includes no clear statement of public policy, and its holding
    is therefore limited to its facts. Also, though it is clear why the
    amended covenants were unenforceable in that case, we are not so
    sure the determination that they were void ab initio is correct. In
    other words, we do not see why the amended covenants should be
    absolutely invalid if it so happened that all the affected landowners
    were to agree with the amendments.62
    ¶45 Finally, the district court astutely noted that ―Utah appellate
    courts have repeatedly held‖ that ―other unauthorized or fraudulent
    deeds or contracts‖ ―are voidable and may be treated by the injured
    _____________________________________________________________
    57   
    2019 UT 62
    , ¶¶ 15, 47, 
    452 P.3d 1158
    .
    58   
    2004 UT 23
    , ¶¶ 12, 17, 19, 
    89 P.3d 155
    .
    59The same is true of F.D.I.C. v. Taylor, where the court of appeals
    held that a trust deed was ineffective to convey property where title
    was held by a corporation and the deed was executed by the person
    who controlled the corporation in his individual capacity. 
    2011 UT App 416
    , ¶¶ 3, 27, 
    267 P.3d 949
    .
    60   
    2012 UT App 182
    , 
    283 P.3d 511
    .
    61   Id. ¶¶ 2, 4, 12.
    62   See infra ¶¶ 47–49.
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    Opinion of the Court
    party as valid.‖63 ―Indeed, if the conveyance of property to a third
    party by one who does not have authority to do so is merely
    voidable,‖ we, like the district court, are ―unable to find that the
    encumbrance of property through the recording of restrictive
    covenants by one who does not have authority to do so is void as
    against public policy.‖
    ¶46 For the foregoing reasons, we agree with the district court
    that the first Ockey factor weighs in favor of holding the restrictive
    covenants voidable, not absolutely void.
    B. The Covenants Do Not Harm the Public as a Whole
    ¶47 Having found no clear statement of public policy in statute
    or caselaw that would render the covenants absolutely void, we turn
    to the second Ockey factor and examine whether the covenants harm
    ―the public as a whole.‖64 The district court concluded that because
    the covenants potentially harmed ―only those who own lots within
    the boundaries of the HOA,‖ they did not harm the public as a
    whole.
    ¶48 The Landowners, who dedicate little ink to this factor in their
    briefing, do not convince us otherwise.65 They do suggest that
    underlying the authority we examined under the first Ockey factor is
    ―the well-settled principle that owning land ‗carries with it the right
    to exercise dominion and control over it.‘‖66 And they explain that
    ―[v]iolating this principle harms the public because it calls into
    question the fundamentals upon which land ownership is based.‖
    ¶49 But our decision does not violate this fundamental property
    principle. The apparent facts of this case, in which an individual
    singlehandedly restricted nearly two thousand acres of land that did
    _____________________________________________________________
    63(Citing Dillon v. S. Mgmt. Corp. Ret. Tr., 
    2014 UT 14
    , ¶¶ 28–29,
    
    326 P.3d 656
    ; Frailey v. McGarry, 
    211 P.2d 840
    , 845 (Utah 1949); Ockey,
    
    2008 UT 37
    , ¶ 26; Wittingham, 
    2020 UT 49
    , ¶ 37.)
    64   Wittingham, 
    2020 UT 49
    , ¶ 24 (citation omitted).
    65 The Landowners assert that the first Ockey factor is the ―most
    relevant‖ in this case. But courts are instructed to consider both
    factors, see 
    id.
     ¶¶ 24–25, and where, as here, there is no clear
    statement of relevant public policy in statute or existing legal
    precedent, this second factor would be especially important to the
    determination of whether a contract is absolutely void.
    66   (Citing Fisher v. Bountiful City, 
    59 P. 520
    , 522 (Utah 1899).)
    17
    WDIS v. HI-COUNTRY ESTATES
    Opinion of the Court
    not belong to him, are extraordinary. But generally speaking, we
    cannot see how permitting landowners to ratify restrictive covenants
    violates their right to control their land. The Landowners point out
    that property owners who wish to be bound by otherwise invalid
    covenants could always record new, validly authorized ones. But in
    cases like this one, where numerous owners are involved and
    decades have passed since the initial recording, it may be
    advantageous to avoid such a process. Regardless, the fact that they
    retain the right not to ratify an otherwise invalid covenant
    adequately secures their property rights.
    ¶50 The Landowners further contended, at oral argument, that
    failing to hold the restrictive covenants absolutely void would
    undermine the accuracy of recorded documents, upon which the
    public relies. But well-established property doctrines such as adverse
    possession and boundary by acquiescence already recognize that
    actual property ownership sometimes varies from what is recorded
    in the public records. And if property owners who wish to ratify
    unauthorized recorded covenants are allowed to do so, then the
    public records would not be inaccurate in those instances.
    ¶51 All told, where we have held certain types of contracts void
    for public policy reasons in the past, the potential harm resulting
    from such contracts had broad reach.67 The harm in this case—to the
    extent there is any—is limited to the landowners subject to the
    covenants. So we find that the second Ockey factor, like the first,
    weighs in favor of declaring the covenants voidable rather than
    absolutely void.
    _____________________________________________________________
    67 See, e.g., Zion’s Service Corp. v. Danielson, 
    366 P.2d 982
    , 985–86
    (Utah 1961) (voiding a contract whose purpose and effect was to
    control prices and restrain trade in a manner imposing costs on the
    public); Hirtler v. Hirtler, 
    566 P.2d 1231
    , 1231–32 (Utah 1977) (holding
    that contracting parties may not waive the right to assert a statute of
    limitations as a defense to an action because such statutes are
    designed ―for the public good,‖ and giving effect to waivers would
    lead to their insertion in contracts ―as a matter of routine,‖ opening
    the door ―to the very abuses the statute was designed to prevent‖);
    Hawkins ex rel. Hawkins v. Peart, 
    2001 UT 94
    , ¶¶ 10–13, 
    37 P.3d 1062
    (holding that it violates public policy to enforce a parent‘s release of
    a minor‘s prospective claims for negligence and noting that an
    ―exculpatory clause that relieves a party from future liability may
    remove an important incentive to act with reasonable care‖).
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    Opinion of the Court
    Conclusion
    ¶52 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. The WLA, the statute of
    frauds, and our caselaw have not declared that such covenants are
    categorically void as against public policy. And because they affect
    only the individuals subject to them, and not the public as a whole,
    we decline to declare them absolutely void. It remains to be
    determined whether the Landowners ratified the covenants at issue
    in this case. Accordingly, we affirm the district court‘s denial of
    summary judgment and remand for further proceedings consistent
    herewith.
    19