Under the Fair Housing Act, there are requirements with respect to “accommodations” and “modifications.” “Accommodations” are requests to be exempt from certain rules or policies such as a request to have a service animal when there are pet rules that would exclude that particular type or breed of animal. “Modifications” are physical changes to the property to enable a disabled person to use the property in the same manner as others. As an example, a modification is often requested for an alteration to the exterior of a building to allow the construction of a wheelchair ramp or addition of a sidewalk for ease of access to the dwelling or building entrance from a parking area. The distinction is important because reasonable accommodations are undertaken at association expense, while modifications are done at the expense of the party requesting the modification. It is wise for management or association officers to discuss with their counsel any owner request which appears to implicate the Fair Housing Act. Complaints alleging violations of the Fair Housing Act are investigated by the Virginia Fair Housing Office which has the authority to impose substantial financial and other penalties. It is considerably less expensive for counsel to help you avoid legal minefields and thereby avoid substantial financial penalties permitted under the Act. We have substantial experience in advising associations on Fair Housing Issues as well as the Americans with Disabilities Act.
This is an important task that generally does not get accomplished as often as it should. There are three primary reasons for a review of your rules every couple of years: (i) laws and regulations change, (ii) “best practices” change and (iii) desires of the community change. When you do undertake this task consider the following steps.
STEP 1 – The board of directors should establish an ad hoc committee on rules to periodically review and suggest changes (not make changes!).
STEP 2 – Those suggestions would be reviewed by the association manager with comments being given to the committee and the board of directors.
STEP 3 – The board finalizes the desired changes subject to review by counsel.
STEP 4 – The proposed changes are sent to the association’s attorney to review them for clarity, appropriateness and enforceability. There could be issues due to a proposed rule (1) having inartful or vague language or (2) having a provision that is not permitted by statute or (3) having a conflict with a provision in the declaration or bylaws.
STEP 5 – Suggested revisions will be made by the attorney either in a meeting with the board or committee followed by a written report. We often see association rules created by boards that include provisions that Virginia statutes require to be included in a recorded Declaration or Bylaws including, but not limited to: (1) charges for violations of governing documents; (2) late fees and suspension of services for delinquent assessments; (3) restrictions on for sale signs, (4) restrictions regarding rental of units and association charges connected with rentals, and (5) certain provisions regarding special assessments. Attorney review is critical to ensure that rules do not violate statutory requirements and are not ambiguous either of which could cause the rule to be unenforceable.
STEP 6 – The Board reviews and, if satisfied with the version provided to them, approves the new rules and publishes them to the members indicating the effective date.
Two new changes in the law have an impact on community associations court actions.
The first is an increase in the jurisdictional limit of the general district court from $25,000 to $50,000 (exclusive of interest and attorneys’ fees.) It is very helpful to be enabled by this statutory change to pursue larger claims in the lower court which will significantly speed up the process of obtaining a judgment or settlement. See Virginia Code Section 8.01-195.4.
The second is an amendment to the Property Owners Association Act which will make it mandatory, rather than discretionary, for a court to award reasonable attorneys’ fees and court costs to the prevailing party in a suit to enforce rules and regulations. Also, the Condominium Act was amended to address the authority of boards of directors to adopt, publish and enforce rules pertaining to the common elements usage and other areas of responsibility provided for in the governing documents. Finally, this statute provides condo unit owners with the right to repeal or amend any board-adopted rule at a duly-called special meeting of the membership. See Sections 55.1-1959 of the Condominium Act and 55.1-1819 of the POA Act.
STAND BY FOR INFORMATION ON AN UPCOMING EDUCATION EVENT IN WHICH WE WILL DISCUSS LESSONS LEARNED FROM THE SURFSIDE CONDO COLLAPSE. WE EXPECT TO HAVE A VERY QUALIFIED GROUP OF PANELISTS.
Inspired by the COVID experience which hampered association meetings and, therefore, effective governance the General Assembly enacted a landmark bill to assist in all associations. It is finally the time of year for the new laws to go into effect. Once an Association has complied with the conditions in the amendments quorums for annual meetings can be more easily achieved. Both the Condominium Act and the Property Owners Association Act were amended to provide enhanced authority to vote by proxy or absentee ballot and also to vote by electronic means. The amended statutes provide that unless expressly prohibited by the governing documents votes at a membership meeting may be cast in person, by proxy or by absentee ballot.
The amendments also allow for voting to take place by electronic means if authorized by a resolution of the board of directors which provides guidelines. In both statutes there is a provision which states that those members voting by proxy or absentee ballot are deemed to be present at the meeting. The term electronic means is defined to include meetings via teleconference, videoconference, internet exchange or other electronic methods. Consistent with the foregoing new provisions, there is no longer a statutory requirement for two board members to be present at the meeting place.
If a member does not have the capability or desire to conduct business by electronic means an association is required, at its expense, to make available a reasonable alternative for such person to conduct business without the use of electronic means. This requirement could result in the necessity for some meetings to be in person.
If you need a resolution to implement these new meeting options the CA Team will be pleased to assist you.
The recent Fourth Amendment to Governor Northam’s COVID related Executive Order, effective as of April 1, 2021, has updated the limitations for private in-person gatherings. It states as follows:
All public and private in-person gatherings of more than 50 individuals indoors and 100 individuals outdoors are prohibited. A “gathering” includes, but is not limited to, parties, celebrations, or other social events, whether they occur indoors or outdoors. The presence in person of more than 50 individuals indoors, or 100 individuals outdoors, performing functions of their employment or assembled in an educational instructional setting is not a “gathering.” The presence of more than 50 individuals indoors, or 100 individuals outdoors, in a particular location, such as a park, or retail business is not a “gathering” as long as individuals do not congregate. This restriction does not apply to the gathering of family members, as defined in section I, subsection D, paragraph 2, living in the same residence. (emphasis added in various locations) Continue Reading YET ANOTHER RULE MODIFICATION FROM GOVERNOR ON IN-PERSON MEETINGS
The recent Third Amendment to Governor Northam’s COVID related Executive Order has updated the limitations for private in-person gatherings. It states as follows:
All public and private in-person gatherings of more than 10 individuals indoors and 25 individuals outdoors are prohibited. A “gathering” includes, but is not limited to, parties, celebrations, or other social events, whether they occur indoors or outdoors. The presence in person of more than 10 individuals indoors, or 25 individuals outdoors, performing functions of their employment or assembled in an educational instructional setting is not a “gathering.” The presence of more than 10 individuals indoors, or 25 individuals outdoors, in a particular location, such as a park, or retail business is not a “gathering” as long as individuals do not congregate. This restriction does not apply to the gathering of family members, as defined in section I, subsection D, paragraph 2, living in the same residence. (emphasis added in various locations) Continue Reading NEW RULE FROM GOVERNOR ON IN-PERSON MEETINGS
Last Spring as part of emergency legislation the General Assembly authorized association boards of directors to meet virtually but did not include member meetings. This has caused significant delays in elections and other important meetings requiring a membership vote. I am pleased to report that new amendments, just signed by the Governor, will make life so much easier for all of us involved in community association governance. The new legislation affects both the Property Owners Association Act and the Condominium Act but does not become effective until July 1, 2021. In order to make the virtual meeting option available the amendments of several statutes approach the issue by allowing electronic communications unless the governing documents prohibit it. This approach eliminates the need for document amendments in order to utilize electronic means. That said, there are explicit requirements for the board to adopt guidelines for use of these more liberal forms of communication and voting to ensure that the rights of owners are protected in the process. Most governing documents do not address the topic of electronic communication and voting – especially ones not written recently. Here are the important new “rules of the road” on use of technology with regard to meeting notices, assembly and voting – the italicized words are taken from the relevant statutes: Continue Reading GENERAL ASSEMBLY MAKES VIRTUAL MEMBER MEETINGS LEGAL …. WITH CONDITIONS
We often get calls from new board members after transition from developer control. They have questions like this one: Some of the homeowners have added fences, above ground pools and sheds without getting approval from the Association. Many of these changes do not appear to meet the standards that are part of our documents. No action has been taken to correct these violations. How do we go about enforcing the covenants and rules?
The first step is to examine the architectural guidelines and the enforcement provisions in the governing documents. Usually an association’s declaration establishes a committee, often called the architectural standards committee, and grants it powers and duties.
There are often architectural guidelines in the nature of rules and regulations which detail the standards for the community and the procedures for enforcement. If these do not exist, the board of directors should pass a policy resolution that clarifies the standards in the association’s governing documents with greater detail and sets the procedures for enforcement. This policy resolution is generally referred to as a “due process procedure.”
One of the most important reasons that these procedures need to be in place is that the actions of the committee are subject to review in any legal action in which the association may become involved. The more clearly the resolution defines the procedures and the more closely the committee adheres to them, the more likely they are to be successful if enforcement of a covenant or rule goes to court. Continue Reading “OUR NEW BOARD JUST INHERITED A HOST OF OLD VIOLATIONS – WHAT SHOULD WE DO? “
With the persistence of COVID-19 there is a current focus on the effects of smoking in apartments, condominiums and townhomes on their residents. The Common Interest Community Work Group of the Virginia Housing Commission, on which Mike Inman serves, recently discussed the issue. Not only is there a longstanding health concern for the smokers but there is heightened concern for their children and neighbors in attached living quarters. Multifamily buildings, particularly older ones, are often not constructed so that smoke and other odors from one unit will not travel to other units or the common areas. There are frequent complaints raised by residents in multi-story properties. The voices of those who are affected have increased in number and part of the reason is that the smokers are spending lots of time at home and so are their school age children during the pandemic. Even after the pandemic ends working from home will remain popular. Consequently, the problem of second hand smoke effects has increased exponentially. What can be done? Continue Reading GENERAL ASSEMBLY FOCUSES ON SMOKING
Boards often ask us how to best fund a project that becomes necessary due to unexpected events. This could be a significant leak or structural issue with the swimming pool or a roofing inspection report which states that replacement is needed well before the time planned in the reserve study. For purposes of this article assume that the board has determined that the need for “the fix” is too urgent to wait for fund raising through a significant increase in the regular assessment. Continue Reading FUNDING SURPRISE PROJECTS – LOAN OR SPECIAL ASSESSMENT?