Virginia 2021 Legislative Update for Common Interest Communities
Date: April 12, 2021
The following bills amend the Property Owners’ Association Act (Va. Code Ann. 55.1-1801, et seq., as amended (1950)), the Virginia Condominium Act (Va. Code Ann. 55.1-1900, et seq., as amended (1950)), and other statutes that may affect common interest communities. Please feel free to contact us if you have questions regarding any of the following legislative changes.
Use of Electronic Means for Meetings and Voting
House Bill 1816 and Senate Bill 1183 amend the Property Owners’ Association Act and the Virginia Condominium Act by allowing any meetings of the membership, its Boards of Directors and committees, to be held entirely or partially by electronic means and also allowing voting by electronic means unless the governing documents expressly prohibit such action. These statutory changes codify the 2020 emergency legislation that eliminated the requirement that at least two board members be physically present at a Board meeting. More importantly, the new legislation expands the authority by expressly allowing membership meetings to be held by electronic means.
Here is how it works: The changes empower a Board with the authority to decide whether to hold a meeting by “electronic means” and whether to allow for electronic voting at the meetings subject to guidelines. Should a Board decide to do so, it must adopt guidelines for such meetings to the restrictions in the statutes and its governing documents. As to meetings, the statutes provide that “guidelines shall ensure that persons accessing such meetings are authorized to do so and that persons entitled to participate in such meetings have an opportunity to do so.”
With respect to voting, the statutory changes allow for voting at meetings in person, by proxy, or by absentee ballot and each method of voting may be accomplished via “electronic means.” However, in order to take advantage of the convenience of virtual meetings, the Association Board must adopt guidelines for electronic voting to make certain that individuals accessing such meetings are authorized to do so and that they are provided sufficient opportunity to participate in such meetings. If a member’s vote is required to be obtained by secret ballot, any electronic means utilized must protect the identity of the voter. Otherwise, a different method of voting must be utilized. In addition, it is important to note that community associations must still provide an alternative means of voting if a member does not wish to vote by electronic means.
Lastly, the statutory changes authorize an Association to deliver notices of Board and membership meetings electronically, rather than by U.S. mail or hand delivery. If the electronic delivery is unsuccessful, the Association must subsequently send the notice via U.S. mail. The legislation no longer requires the Association governing documents expressly authorize electronic delivery of meeting notices.
While the legislation takes effect July 1, 2021, we encourage Boards to adopt virtual meeting and electronic voting guidelines as soon as possible so that they are ready to take advantage of the administrative convenience the legislation has provided. Do not hesitate to contact Whiteford Taylor & Preston for assistance in developing the necessary guidelines.
Rule Making Authority Concerning Smoking
House Bill 1842 amends Section 55.1-1819 of the Property Owners’ Association Act and Section 55.1-1959 of the Virginia Condominium Act by adding Sections 55.1-1819.1 and 55.1-1960.1 to the respective Codes.
This new law broadens the rulemaking authority of Boards of Directors. Condominium Association Board of Directors will have authority to establish reasonable rules that restrict smoking in the Condominium, which includes prohibiting smoking in common elements as well as within the units. Property Owners’ Association Boards will have the authority to restrict smoking in common areas and attached private dwelling units (i.e. townhouses).
The bills further amend the Virginia Condominium Act by allowing unit owners, by majority of votes cast at a meeting of the unit owners’ association, to repeal or amend any rule or regulation adopted by its Board. Similar authority already exists in the Property Owners’ Association Act.
This new law has the potential to have a significant impact on community association living as it will make it easier for Community Associations to address such issues as second hand smoke and other issues relating to smoking. Until now, a smoking ban typically could only be done by way of a formal amendment to the governing documents, which can be overly burdensome for most communities and take years to complete. That said, it is fair to say that nonsmoking regulations may not be well received in some communities and it might become a more complex issue given the Commonwealth’s current commitment to adopting laws legalizing marijuana.
Associations should consult with their counsel to discuss options for regulations based on the associations’ governing documents. It is important to note that this new legislation is not applicable to communities whose governing documents already have provisions pertaining to smoking. Therefore, it is crucial to understand the Board’s authority pursuant to the governing documents and determine whether establishing regulations that ban smoking will be in the best interest of the community.
Limitations on Judgments Enforcement
House Bill 2099 amends Sections 8.01-251, 8.01-458, 55.1-339 of the Virginia Code by reducing enforceability of judgments from 20 years to 10 years from the date of a judgment. The time period can be extended by recording a certificate prior to the expiration period with the court in which a judgment lien is recorded that will extend the limitations period for another 10 years from the date of such recordation. Currently, when a judgment is entered against owners for delinquent assessments, associations have 20 years to enforce that judgment. This legislation reduces the time period during which actions can be taken to collect on that judgment.
Under current law only the judgment creditor can extend a judgment’s enforceability period and can request release of a judgment lien. However, under this new law, settlement agents and title insurance companies are given the authority to release judgments without relying on the creditor and the creditor’s counsel. This can be significant and will require more stringent monitoring to ensure judgments do not expire before they are satisfied and to make sure settlement agents do not release judgments unless the debtors’ obligations are fully met. Associations should consult with their legal counsel to discuss how this Bill will impact their pending and future assessment collections. This Bill is effective January 2022.
General District Court Jurisdictional Limits
Senate Bill 1108 amends Section 8.01-195.4 of the Code of Virginia by increasing general district courts’ jurisdictional limit from $25,000 to $50,000. Under the current law, claims higher than $25,000 must be filed in the circuit courts. In most instances, actions in general district court have faster and less expensive outcomes. Therefore, this new law will likely give community associations a greater ability to resolve litigation matters in a more timely and cost efficient manner.
Requests for Accessible Parking to Accommodate Disability
House Bill 1971 amends Section 36-96.3:2 of the Virginia Fair Housing Law by declaring that when a person receives a request for accessible parking to accommodate a disability, the person receiving the request shall treat it as a request for reasonable accommodation.
The statute further provides that a Community Association offer to engage in a good faith interactive process to discuss alternatives that effectively address the disability-related needs of the requester when a requested accommodation imposes an undue financial or administrative burden, or requires a fundamental alteration to the nature of a Community Association’s operations. The interactive process is not required when the requester does not have a disability or disability-related need for the requested accommodation.
It also requires Community Associations receiving a request to bear the cost, fees or charges related to the installation, design, marking, or reconfiguration of the parking space if it is reasonable and does not fundamentally alter the operations of the Association.
Please contact a Whiteford, Taylor & Preston, LLP attorney for more specific advice based on your community’s individual needs and concerns.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.