Published By: Michael A. Inman, Jeanne S. Lauer, Gregory J. Montero, Robert V. Timms, Jr., Matthew J. Weinberg

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?

Many board members and managers may not be aware that the Property Owners’ Association Act (“POAA”) requires that an association’s board of directors provide a member due process prior to taking action against that member in court.

Specifically, §55.1-1819 of the POAA and § 55.1-1959 of the Condominium Act require that if a board of directors believes a member may be violating its covenants or rules and regulations, the board must provide the member notice of the violation, and a reasonable opportunity to correct the alleged violation. If the member fails to correct violation after receiving the notice, the board must then provide the member an opportunity to present his or her position on the violation where the member may elect to be represented by counsel. This opportunity is commonly referred to as a due process hearing. In both of the Acts the Association governing documents must have adopted the provisions of these sections before they may be utilized to assess charges or suspend an owner’s right to utilize facilities or services. Continue Reading Provide Members Due Process Prior to Suing in Court

We are being deluged with questions about pools.  But in the many emails and conversations, we are developing and hearing some good ideas that can be shared.  Although we have tried to discourage the use of Association pool furniture and have encouraged “Bring Your Own” policies, some clients have gone to single use covers on furniture and others are using signs or devices which can be flipped from green to red to indicate when something has been disinfected for use.  Of those who are opening (and this is understandably a small number), many are dealing with the screening requirement with logs to allow owners to self-assess and report their findings in written form. Still another screening option is a new online service for pools and other community association facilities at www.mycovidscreener.com.  I evaluated their website and screening tools and they are Virginia compliant.  Owners conduct the interactive screening on their cell phones and records are maintained of their responses.  To the extent enforceable, waiver of liability provisions are part of the screening.   

If you’ve run across some great ideas for Phase 3 reopening, we would love to hear about them and share them.  We are all in this together!

 

EFFECTIVE JULY 1, 2020

This summary is not a complete list of requirements for all types of businesses and activities covered by the COVID-19 reopening Phase Three Guidelines issued by the Commonwealth of Virginia.  It includes only those Guidelines that are most likely to affect community associations in order to assist associations in making decisions that can affect all of the owners and residents in the community.

The Governor of Virginia is stressing that this Phase Three opening does not mean that Virginia is out of the woods yet and is asking citizens to be responsible and follow these mandatory Guidelines in order to keep Virginia on a positive track and avoid what many States are currently experiencing with record highs in daily positive virus cases.

A complete copy of the Phase Three Guidelines can be found at:  https://www.governor.virginia.gov/media/governorvirginiagov/governor-of-virginia/pdf/Forward-Virginia-Phase-Three-Guidelines.pdf.

Continue Reading SUMMARY OF VIRGINIA’S PHASE THREE GUIDELINES AFFECTING COMMUNITY ASSOCIATIONS