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
6 STEPS FOR REVIEWING AND REVISING YOUR ASSOCIATION RULES & REGULATIONS
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
ENFORCING COVENANTS – NEW VIRGINIA STATUTES AFFECT COURT ACTIONS
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
Electronic Voting and Virtual Meetings – New laws effective July 1
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
YET ANOTHER RULE MODIFICATION FROM GOVERNOR ON IN-PERSON MEETINGS
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)
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NEW RULE 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)
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GENERAL ASSEMBLY MAKES VIRTUAL MEMBER MEETINGS LEGAL …. WITH CONDITIONS
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:
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“OUR NEW BOARD JUST INHERITED A HOST OF OLD VIOLATIONS – WHAT SHOULD WE DO? “
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.
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GENERAL ASSEMBLY FOCUSES ON SMOKING
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?
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FUNDING SURPRISE PROJECTS – LOAN OR SPECIAL ASSESSMENT?
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.
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