BOARD MEMBER AND MANAGERS CHECKLIST
2010 CHANGES TO VIRGINIA LAWS
AFFECTING COMMUNITY ASSOCIATIONS
Earlier this year there were new laws passed by the Virginia General Assembly to amend the laws that govern community associations. The Community Association Law Team at Inman & Strickler, PLC provides the following checklist of actions your community association should consider in order to utilize or comply with changes to Virginia laws that became effective July 1, 2010.
Develop a process for handling unit or lot owner complaints – pending approval of draft Ombudsman regulations proposed by the Common Interest Community Board. Keep in mind that changes to your written procedures may be required once the regulations are final later this year, but it is wise to get started.
If the community is not professionally managed and a resident provides bookkeeping, billing and record keeping services, even though that resident need not be licensed, confirm that the association has adequate fidelity bond coverage in place.
If the community is a property owners association and not professionally managed, be aware of a change to the process for payment of fees charged for preparation of the association disclosure packet – the charge can be collected at the time the packet is provided to the requesting party.
Review restrictive covenants and architectural guidelines concerning display of the U.S. Flag to ensure consistency with the Federal Flag Act. The new statute provides that a unit owners’ or property owners’ association shall not prohibit or otherwise adopt or enforce any policy restricting a unit or lot owner from displaying upon property to which that owner has a separate ownership interest or a right to exclusive possession or use the flag of the United States whenever such display is in compliance with the federal Flag Code. The bill also provides that the unit owners’ or property owners’ association may establish reasonable restrictions as to the size, place, duration, and manner of placement or display of the flag provided the restrictions are necessary to protect a substantial interest of the unit owners’ or property owners’ association. Under the bill in an action brought to enforce a rule pertaining to display of the flag, the unit owners’ or property owners’ association has the burden of proof regarding whether the rule protects a substantial interest of the association.
Review association notice procedures and revise as appropriate to take advantage of new authority to allow the use of advanced technology. It is broad in coverage and contains provisions relating to use of all forms of electronic communications for giving notice, voting, giving consent, and other similar actions, unless the association documents prohibit it. (See attached copy of the new section of the Condominium Act; POA Act contains identical provision). Virginia Code §59.1-480 states an “electronic signature” means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.”
Budget for increased court fees for General District Court assessment collection – fees have been increased dramatically.
§ 55-79.71:1. Use of technology.
A. Unless the condominium instruments expressly provide otherwise, (i) any notice required to be sent or received or (ii) any signature, vote, consent, or approval required to be obtained under any condominium instrument or any provision of this chapter may be accomplished using the most advanced technology available at that time if such use is a generally accepted business practice. This section shall govern the use of technology in implementing the provisions of any condominium instrument or any provision of this chapter dealing with notices, signatures, votes, consents, or approvals.
B. Electronic transmission and other equivalent methods. The unit owners’ association, unit owners, and other persons entitled to occupy a unit may perform any obligation or exercise any right under any condominium instrument or any provision of this chapter by use of any technological means providing sufficient security, reliability, identification, and verifiability. "Acceptable technological means" shall include without limitation electronic transmission over the Internet or the community or other network, whether by direct connection, intranet, telecopier, or electronic mail.
C. Signature requirements. An electronic signature meeting the requirements of applicable law shall satisfy any requirement for a signature under any condominium instrument or any provision of this chapter.
D. Voting rights. Voting, consent to and approval of any matter under any condominium instrument or any provision of this chapter may be accomplished by electronic transmission or other equivalent technological means provided that a record is created as evidence thereof and maintained as long as such record would be required to be maintained in nonelectronic form.
E. Acknowledgment not required. Subject to other provisions of law, no action required or permitted by any condominium instrument or any provision of this chapter need be acknowledged before a notary public if the identity and signature of such person can otherwise be authenticated to the satisfaction of the executive organ.
F. Nontechnology alternatives. If any person does not have the capability or desire to conduct business using electronic transmission or other equivalent technological means, the unit owners’ association shall make reasonable accommodation, at its expense, for such person to conduct business with the unit owners’ association without use of such electronic or other means.
G. This section shall not apply to any notice related to an enforcement action by the unit owners’ association, an assessment lien, or foreclosure proceedings in enforcement of an assessment lien.
(2010, c. 432.)