05/05/2020 by Deborah M. Casey, CCAL,® Kathleen Panagis, Esq., and W. Thomas Chappell, Esq.
Frequently Asked Questions
The information in this article is for general information about the topics discussed and is not legal or tax advice. Nor does any exchange of information associated with this article in any way establish an attorney-client relationship.
- Which Executive Orders Impact Community Associations and What Do The Executive Orders Say?
Executive Orders 53 (as amended) and 55 collectively, and among other things, impact Virginia community associations as follows:
-ban gatherings of more than 10 people;
-orders closure of all public access to recreational and entertainment businesses;
-business operations offering professional rather than retail services may remain open, but all such businesses shall, to the extent possible, adhere to social distancing recommendation of at least six feet from any other person for shared or outdoor spaces and engage in enhanced sanitizing practices on common surfaces;
-all professional businesses should utilize telework as much as possible; if telework is not possible, adhere to social distancing recommendations and enhanced sanitizing procedures; and
-all individuals must remain at their place of residence except for the limited reasons listed in Executive Order 53 (e.g., getting food, seeking medical attention, governmental services, taking care of family, engaging in outdoor activity including exercise, travel to and from work).
-A violation of either Executive Order is Class 1 misdemeanor.
- Should Community Associations Sanitize Common Areas and Facilities?
Yes. Executive Order 53 (as amended) requires all businesses, which includes community associations, to engage in enhanced sanitizing practices. In addition, pursuant to many community association governing documents, associations generally are responsible for maintaining and operating association common facilities, as well as acting in the best interest of the association.
- What Extra Steps Should Community Associations Consider Regarding Sanitizing Common Areas and Facilities?
Community associations should consider adding extra sanitizing services through their current vendors or look for additional or new vendors to do the same. In addition, and depending on the configuration of the community, an association should consider purchasing self-dispensing hand sanitizer stands and/or sanitizing wipe stands (to the extent such items are available) or place hand sanitizer or wipes at locations in the community. Associations also should inform or remind its members and residents to engage in preventative measures as recommended by the CDC and Virginia Department of Health and communicate this information via newsletter, email list serve, association website, signs placed in the community, flyer, social media and/or newsletter).
- Should Community Associations Temporarily Close Common Area Facilities Such as Fitness Rooms, Clubhouses, and/or Pools?
Yes. Community associations have the authority to temporarily close facilities such as clubhouses, community rooms, and/or business centers since associations have the duty to maintain and operate common areas, as well as the responsibility to take reasonable action to exercise the duty of care. In addition, Executive Orders 53 and 55 prohibit gatherings of more than 10 people and require social distancing of at least six feet.
In terms of community association gyms and pools, these should be temporarily closed pursuant to how Executive Orders 53 and 55 have been interpreted; specifically, per the FAQ section found on the Official Website of Virginia, public pools—such as municipal, hotel, club, condominium, apartment, and neighborhood pools—are considered recreation and fitness facilities, and are thus required to be closed.
- How Can Boards of Directors Hold Board Meetings During the Pandemic And Comply with the Executive Orders?
Normally (without a declared state of emergency), both the Virginia Property Owners’ Association Act and Virginia Condominium Act permit boards of directors to hold meetings electronically by telephone or video conference or other electronic means, so long as:
- at least two board members must be physically present at the meeting place stated in the meeting notice; and
- the audio equipment is sufficient for any member in attendance to hear what is said by any board member participating in the meeting who is not physically present.
Now, in light of Virginia’s State of Emergency, two amendments have been adopted—one of which has been signed by the governor as of May 3, 2020—that allow boards of directors of property owners’ associations and condominium unit owners’ associations to meet virtually when the Governor has declared a state of emergency. The amendments allow a common interest community board to meet by electronic communication without having a member of the board physically present at a certain location when the Governor has declared a state of emergency so long as:
- the nature of the emergency makes it impracticable or unsafe for the board to assemble in a single location;
- the meeting is to discuss or transact business required by law or necessary to continue operations of the association and the discharge of its lawful purposes, duties, and responsibilities; and
- the board distributes minutes of the meeting to its members using the same method it used to provide notice of the board meeting to its members.
Under these amendments, the board is also required to (1) give notice of the meeting to the association’s members using the best available method in light of the emergency and that notice must be given at the same time as notice is provided to members of the board; and (2) make arrangements for association members to access the meeting electronically, including, to the extent practicable, videoconferencing technology and, if the means of communication allow, provide members with an opportunity to comment. The minutes of the meeting should state the nature of an emergency, the fact that the meeting was held by electronic communication and the type of electronic communication used. Notably, these changes are temporary, as this provision initially lasts only through June 30, 2020, but once the other adopted amendment has been signed by the governor, the provision may be extended through June 30, 2022. For further information regarding these new amendments, follow this link to our article.
Whether boards rely on the Virginia Property Owners’ Association Act and Virginia Condominium Act to meet electronically by telephone or video conference or boards rely on the newly adopted amendments to meet virtually, both Acts and the amendments still require that board meetings:
-have a quorum to conduct business;
-are open to the members, unless the board is in a properly convened executive session;
-in furtherance of the open meeting requirement, notice of the time, date, and place of each board meeting is published where it is reasonably calculated to be available to a majority of owners; and
-include an owners’ forum.
- Can Boards Take Action Outside of a Board Meeting, and If So, How?
It depends. Look to the governing documents (usually the Bylaws) or to the Virginia Nonstock Act (if an association is incorporated) to determine if there is authority to take action without a meeting by unanimous written consent. An action taken in this manner needs to be addressed at the next properly convened board meeting, ratified and included in the minutes.
- What Suggestions Do You Have for an Association Having An Annual Meeting of the Members During the Pandemic?
In general, community associations should consider rescheduling or postponing annual meetings of the members so that individuals and associations can comply with Executive Orders 53 and 55.
Neither the Virginia Condominium Act nor the Virginia Property Owners’ Association Act expressly authorize electronic membership meetings. In fact, some governing documents provide that presence at an owners meeting is either in person or by proxy. Even if the documents permit attendance by electronic means, it will be important to make sure that everyone can hear and speak to everyone. This is difficult to do unless it is by some means of audio or video conferencing, and even such means can be difficult with larger groups.
If the association is incorporated as a Virginia nonstock corporation, the Virginia Nonstock Corporation Act permits members to participate in any meeting of the members by means of remote communication to the extent that the Board authorizes such participation for members. Participation by remote communication is subject to procedures adopted by the Board and in conformity Va. Code Section 13.1-844.2B. Boards of eligible associations should consider enacting such procedures and publicizing them to the owners in advance.
If annual meetings by electronic means are possible, review the documents to make sure that voting by electronic means also is permitted. Many documents provide that voting is in person or by proxy, which may mean that virtual attendance is permitted, but electronic voting is not. One of the main reasons for an annual meeting is the election of directors, so make sure the association can proceed with the election. If not, electronic submission of proxies, which can be instructed, may be the best option. The problem may come, however, when the proxy holders cannot be present to vote due to limits on the number of persons who can gather at one time. For further information, see our article regarding submitting of electronic proxies.
- What Steps Should Associations Take to Protect Their Management Team and Employees While On-Site?
Community associations and management should create plans and policies that address when management and association employees are onsite. The layout of an association will dictate what plans and policies are needed (e.g., if the association has an onsite office, an association can limit owner access to it; prohibit in-person meetings between management and owners; request that owners submit documents electronically or provide alternative arrangements; consider purchasing masks, gloves, and sanitizing products for management team and association employees, etc.).
Boards and management should determine what practices will make them comfortable and safe. Boards and management should frequently review information provided by the CDC and Virginia Department of Health to evaluate the preventative measures to take.
- What Should Associations Do When Management, Association Employees, and/or Association Contractors Need to Access a Resident’s Home or Unit?
Community associations should try to limit repairs or maintenance issues to emergency situations. If repairs or maintenance are elective, then postpone them. If emergency repairs or maintenance is needed, then the association should create a plan and policy that takes into consideration preventative measures recommended by the CDC and Virginia Department of Health and complies with social distancing requirements of Virginia Executive Orders 53 and 55. Examples of preventative measures include requiring management and association contractors to wash their hands immediately before entering a unit and to wear face masks, gloves, and foot booties.
- If an Association Resident is Diagnosed with Coronavirus, is the Association Required to Disclose such Diagnosis?
No, and community associations should tread lightly about whether to disclose a resident’s diagnosis. This is sensitive, private information, which could also have Fair Housing implications.
If a resident provides a community association with express, written authorization to disclose his/her/their name and diagnosis to the community, management, and any close-in-contact association contractors, the association can release the information to its members, management, and close-in-contact association contractors if it chooses to do so. There is no requirement to disclose. If a resident does not provide authorization to release his/her/their name and diagnosis, the association cannot release identifying information. The association may, however, inform its owners/residents that someone in the community has been diagnosed. No further information may be provided. The association should consider whether releasing the information would be prudent given the configuration and circumstances of the association.
Finally, if disclosure is made, the association should inform its members and residents about the preventative measures it is taking and remind members and residents to also engage in preventative measures recommended by the CDC and Virginia Department of Health.
- What Suggested Steps Should Associations Take Regarding Review and Possible Modification Of Pool Contracts?
In general, pool contracts involve two main parts: (1) maintenance and (2) lifeguard services. Even if association pools are not permitted to be open to members during any part of the pool season, associations are still responsible for maintaining and preserving common areas and facilities, and may still need to take steps necessary to ensure the pools are properly maintained. Lifeguard services, however, are probably not needed during any time the pool is closed to members and residents.
Pool contracts should be reviewed to determine whether the scope of services can or should be modified due to the current pandemic. If scope or services under the pool contract need to be adjusted, look at what the contract provides in terms of modification and how that occur. Modifications usually needs to be reflected in a written agreement signed by all parties. If a pool contract is silent regarding modification, the existing pool contract can be modified only if the association and pool company agree to the modification in writing.
If modification is not possible, review other provisions in the pool contract, such as termination, notice and force majeure (superior force) provisions. Force majeure may excuse performance under the contract in certain circumstances. This is a question specific to each contract, and not all force majeure provisions are the same. For more information regarding the impact of coronavirus on pool season, follow this link to our article on the issue.
- How Should Associations Handle Architectural Review Applications?
Many association governing documents and architectural guidelines contain time limitations (usually 45 or 90 day) regarding when design and exterior modification applications must be reviewed by a board or architectural review committee (“ARC”) or the change is deemed approved. With the stay home order in effect, many owners are using this as an opportunity for home improvement projects. The board, ARC, and management team should continue to monitor and calendar submitted and new applications. There is no tolling of these deadlines during the pandemic and likely no provisions that would permit an extension. In most cases, no action within the lapse of requisite time will deem the application approved. Review submissions and make decisions sooner rather than later.
- How Should Associations Handle Due Process Hearings?
To the extent an association has authority to conduct due process hearings, consider placing a temporary hold on the process unless the violations affect health and safety. In other contexts, there are federal, state and local orders temporarily prohibiting certain enforcement actions from proceeding. Associations should consider following the government’s lead and temporarily suspend and postpone due process proceedings. The Board may want to pass a resolution that formalizes any temporary moratorium on due process and enforcement actions and reserves the association’s right to proceed at a future date. If there is a concern that a statute of limitations may run or rights may be waived, contact association legal counsel for guidance.
About the Authors
Deborah M. Casey, CCAL® is a partner with Vandeventer Black.
She serves on the firm’s Executive Board and Chairs its Community Association law practice. For more information, please contact Debbie at firstname.lastname@example.org.
Kathleen is an Of Counsel for Vandeventer Black and a member of the firm’s Community Associations team. She serves as general counsel to homeowner and condominium associations located in Virginia, which essentially operate as hybrids of non-stock corporations and mini-city governments. For more information, please contact Kathleen at email@example.com.
Thomas Chappell, Esq. is an Associate Attorney with Vandeventer Black LLP and a member of the Community Associations practice group. Thomas serves on the Virginia Legislative Action Committee of the Community Associations Institute and is an active member of SEVA-CAI. Prior to joining Vandeventer Black, Thomas was a judicial clerk for the Virginia Supreme Court.
For more information, please contact Thomas at firstname.lastname@example.org.