November 23, 2022
On June 24, 2021, high-rise condominium Champlain Towers South in the Surfside suburb of Miami, Florida partially collapsed, killing 98 people and injuring eleven others. One factor identified by investigators was the failure of a section of reinforced concrete damaged by water infiltration. This was truly a horrific tragedy.
Following Surfside, condominium communities and state governments across the country gave added consideration to avoiding similar disasters elsewhere. Many condominiums did not wait for government to act first. The problem of aging, deteriorating buildings and inadequate reserves is nothing new. However, Surfside was a sea-change moment in the community association world. There are certainly lessons to learn from what happened on June 24, 2021. The question is what ought to be done. Most proposals would require unit owners to pay significantly higher assessments.
Virginia initiated a process to carefully identify what, if any, legislative reforms are warranted. In April 2022, the general assembly enacted legislation sponsored by Senator Scott Surovell. Senator Surovell’ s district encompasses portions of Virginia’s Washington, D.C. suburbs. Mr. Surovell is also a well-regarded trial attorney. Senate Bill 740 required the Department of Professional and Occupational Recreation to establish the Virginia Structural Integrity and Reserves Work Group to study:
- How common interest communities are initially developed to self-finance.
- Governing documents.
- Reserve study requirements and disclosure of the same to purchasers.
- Budget requirements.
- Board authority to budget reserves, spend money, make assessments and borrow.
- Liability of associations and boards.
- Building inspections by localities.
- Insurance coverage and inspections.
- Education of directors and members of communities.
- Judicial remedies, including those involving assessments or funding.
- Self-management and professional management.
The Virginia Structural Integrity and Reserves Work Group is supposed to report to the legislature by April 1, 2023. This work group was formed earlier this year. It is chaired by Lucia Anna “Pia” Trigiani, an Alexandria HOA attorney. The Work Group includes people who are knowledgeable about HOA matters. Many are involved in selling services to common interest communities. I am not a member of the Work Group, not affiliated with it and do not speak for it in any way. Information about the Virginia Structural Integrity and Reserves Work Group is publicly available through the DPOR’s website and “Townhall” email notifications. The activities of the Work Group are relatively low-profile, despite the fact that, according to trade industry data, over 2,000,000 Virginians live in approximately 9,000 community associations. The large packet of documentation accessible through DPOR does not give the reader a sense of what the Work Group ‘s views and recommendations might be.
The Work Group works in conjunction with DPOR, O.D.U.’s Dragas Center for Economic Analysis and Policy, G.M.U.’s Center for Regional Analysis, and Virginia Tech’s Center for Housing Research, and the Community Association Institute. CAI is a trade association of HOA managers, attorneys, directors, and vendors that lobbies congress and state legislators across the country to strengthen board powers.
Mr. Surovell observed that the risk that something like the Surfside tragedy might happen in Virginia is unknown, because of lack of public data. Surovell observed that associations are failing to raise dues to maintain reserves, there is a lack of transparency, localities are not involved in inspections, professional management is lacking, and there is “zero accountability for boards that fail to honor their fiduciary responsibilities to other property owners.” Senator Surovell calls for, (a) “enhanced insurance products,” (b) requiring directors to follow recommendations of reserve studies and inspections to enjoy legal immunity, (c) transparency regarding underfunded reserves, and (d) increased regulation of community managers.
I follow what the Virginia Structural Integrity and Reserves Work Group is doing because I advise individual HOA lot owners and condominium unit owners. Any reforms this Work Group may recommend will likely have an impact on owners. Anyone who owns a home in a HOA or condominium in Virginia ought to consider what the Work Group may recommend. In early December, an academic institute partnering with the Work Group will send out written surveys to all state-registered condominium and HOA boards across Virginia to solicit input from the public. I hope that any readers who has an opportunity to submit such a survey will take it seriously. I am not certain what weight or interpretation the Work Group will ascribe to any results. In February and March, 2023, the Work Group will determine what their focus and legislative recommendations will be. By the time a bill is introduced in the 2024 general assembly, it will be unlikely that the Virginia Structural Integrity and Reserves Work Group will go back to and rehash its work based on citizen input to the legislators. It’s possible that some members of the Work Group already have an idea of what reforms they will recommend.
On November 16, 2022, I attended their meeting in Arlington, Virginia as an observing member of the public. What is reported here ought not to be taken verbatim as the opinions of DPOR, the Work Group, any of its members, or myself. I’m trying to summarize the issues so that my readers can have a basic understanding of what is being deliberated.
The Work Group discussed use of reserve studies. Virginia condominiums are supposed to conduct reserve studies every five years. Reserve studies identify the remaining useful life of the components of the condominium and calculate an estimate to renovate or repair the component towards the end. Ideally, reserve studies are conducted by professionals. The board is supposed to use the reserve study in its budget process, so that a component of the annual assessment includes an appropriate amount to fund the reserves needed for major projects. Boards tend to succumb to pressure to keep assessments from increasing dramatically. In so doing, they ignore reserve studies or other recommendations that would require major increases. This approach underfunds reserves. Later when expensive deferred maintenance projects are overdue, there is insufficient funds. In such situations, the board is left to evaluate a variety of unpleasant alternatives, such as a major additional assessment (which many may be unable to afford), borrowing money, selling off a portion of the common areas, losing insurance, or termination of the condominium. To complicate matters, there are differently constructed communities and buildings that fall under the heading of “common interest communities.” This ranges from huge subdivisions of single-family homes to small condominiums with only two units, to little HOAs with only a short driveway to take care of, to high rise multifamily buildings. One challenge recognized by members of the Work Group is that given this wide variety, it’s difficult to adopt a one-size-fits-all legal reform. Any changes to require boards to take reserve studies seriously is going to lead to dramatic increase in assessments.
There was a presentation about Common Interest Community Insurance. This topic can be very technical, and I am not going to try to outline all of the issues here. There were discussions about whether insurance companies ought to use inspections to help associations identify maintenance issues that could result in future claims, and whether premium adjustments ought to be associated with such inspections. The Work Group discussed how many HOA directors are unaware of what insurance may be required or practically necessary. Some favor legislative changes to require boards to diligently conduct risk management assessments in the process of insurance renewals. Some governing instruments have detailed insurance requirements, which were put into the documents to address concerns by lenders, and not consumer demand. It would not surprise me if the Work Group were to recommend that the statutes require or strongly encourage purchase of more insurance. Robust insurance coverage is important, but like anything else, this will lead to higher assessments.
The Work Group discussed legislative action to make it easier for boards to use loans to finance capital renovation projects. The POAA and Condominium Act do not specifically authorize boards to borrow money. The statutes contemplate that project financing would come from assessment income. I would anticipate that the borrowing issue would be seriously considered by this Work Group as something that could be facilitated by statutory amendment.
The Virginia Structural Integrity and Reserves Work Group discussed condominium terminations. I previously wrote about condominium terminations, the last time that the General Assembly amended the laws. Condominiums consider termination for a variety of reasons. One reason is that the cost of renovating the condominium property is beyond what the unit owners want or are able to handle, and there is a developer who wants the land for redevelopment. Condominium unit owners are unaware of the possibility of future termination when they buy. Many condominium unit owners on fixed or limited incomes have few alternatives to own their own homes. Loss of a condominium unit with compensation of only a fraction of the investment cost can be a catastrophic loss for the owner. Unit owners are inadequately prepared for such a turn of events.
There was a discussion about provisions in the Condominium Act that pertain to additional assessments. If the board determines that the existing funds are inadequate to pay for necessary renovations, they can vote to impose an additional assessment on all of the unit owners, without waiting for the next annual budget. These additional assessments can be lump sum or installment payments. There was discussion about removing language from the condo statute that allows unit owners to call a special meeting to vote to reduce or rescind the additional assessment. Some people think that this recission option presents a moral hazard, whereby a majority of unit owners motivated by financial concerns can prevent essential renovations from being funded. According to this view, directors ought to be required to fulfill fiduciary duties to raise money through assessments and spend that money, and the unit owners at large should not interfere with the decisions being made about the who, what, when, where why and how much money of assessing and spending. Such a change will mean that the unit owners will have less say in such situations. A fundamental question is, “Who gets to participate in the decisions of what assessments are imposed and what projects are pursued? A board can dramatically raise assessments, even to the point of forcing out several owners, and identify a long list of projects, and nonetheless mismanage the whole thing, to the harm of the unit owners and the community’s future. A board can be ambitious while failing to be wise. If the balance of power shifts further away from the unit owners and onto a board increasingly constrained by statutory obligations, not only is it no longer much of a “mini-democracy,” its not going to be an environment where private property rights will be cherished. Condos become more like a speculative group of financial investments.
Even without any legislative reforms, community associations are already facing budget crises driven by inflation and aging buildings. I recently posted an article to this blog about the risks and challenges of using condominium units as retirement homes. The reforms being discussed may save some developments from a tragedy, and that is a good thing. However, whatever the Virginia Structural Integrity and Reserves Work Group proposes, it will most likely put strong upward pressure on community association budgets, make it more difficult for homeowners to assert certain kinds of challenges, facilitate aggressive collection mechanisms such as liens and foreclosures, and probably drive many communities into termination. These changes will push many people on reduced or limited incomes, particularly retired people and struggling families out of the communities due to financial hardship, replacing them with other owners, many of whom will be investors who will rent out the units, driving down owner occupancy and owner engagement with the board and committees.
Does this mean that all hope is lost, and that homeowners should give up on realizing their dreams of making a home in a community association their long-term future? No. Selling and moving, when a viable option, is often less uncertain than staying and having to spend large sums on assessments (or legal fees). But not always. Many adults’ despairs when they feel that they have little control over decisions made by people around them that impact them directly. Most people want a sense of control when it comes to their own home, in both the investment and daily living aspects.
If these communities function as social contracts of self-government, at the end of the day they will have to solve their own problems. Certainly, the state or local governments may be able to help. The physical characteristics of construction, governing instruments and people in each common interest community are unique, such that none of the 9,000 statewide are the same. I think that the Virginia Structural Integrity and Reserves Work Group understands that the same therapeutic regimen cannot be imposed on all of them. What is needed is a system of methods through which the leaders of approximately 9,000 can formulate customized plans to safeguard their properties in a way that considers both public safety, health and the economic shock effect of a large additional assessment. This is a policymaking process that everyone ought to participate in, on both a state and community level.
Disclaimer: The author of this blog post is NOT a member, affiliate or spokesman of the Structural Integrity and Reserves Work Group.
The building depicted in the photo associated with this blog post does not have any structural problems known to the author of this blog. The photo was chosen at random.
November 14, 2022
Fair housing laws provide homeowners with protection from discrimination that can easily arise if a HOA board feels that the most recent election gives them a broad mandate to make changes to protect “property values” in the community without due regard for the personal impact of their policies. Anti-discrimination scrutiny of community association activity can lead to confusion – the laws are technical and don’t always comport to ordinary intuitions. Often, HOAs will argue that fair housing law doesn’t apply because the owner “agreed” to the governing instruments when they purchased their unit, that the method employed by the HOA to enforce restrictions somehow is not regulated by ant-discrimination laws, or that the board doesn’t have the discretion to grant the accommodation requested. Filling an important gap in public policy, fair housing laws help condominium unit owners who need disability accommodations.
In 1997, the U.S. District Court for New Jersey considered whether a board must relax the parking rules in the condominium instruments to allow a disability accommodation where it seemed that the recorded rules were black and white. Albert Gittleman owned a home in the Woodhaven Condominium. Mr. Gittleman requested that the board assign him a parking space near his home, to accommodate his disability. The board refused, pointing to a provision in the master deed (declaration) stating that all parking spaces were non-exclusive. The board presented an amendment to the unit owners to allow for assigned exclusive parking. The initiative failed to carry because less that 2/3 of the owners supported it. The board argued that under the N.J. condominium act, they could not doll out a portion of the common elements to the exclusive use of a particular unit owner without a valid amendment. Condominium unit owners, as a group, own the common elements as tenants-in-common (joint owners). The association board has the authority to control, manage and repair the common elements, in a similar fashion to a landlord. State condominium statutes prevent the board from conveying portions of the general common elements for exclusive use by unit owners except as the declaration may allow assignment of limited common elements. Woodhaven argued that it was not discriminating because their hands were tied.
Mr. Gittleman filed a Federal Fair Housing Act Amendment lawsuit. He argued that the denial of the assigned handicap parking spot violated antidiscrimination laws. The FHAA makes it unlawful to, “discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or the provision of services or facilities in connection with such a dwelling, because of a handicap of that person.” Discrimination may be shown through disparate treatment, disparate impact, or refusal to make a reasonable accommodation. The discrimination at issue in the Gittleman case was, “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” Side note: Under the federal laws, “disability” is the only protected class that is entitled to a “reasonable accommodation.” The N.J. federal court sided with Mr. Gittleman. Woodhaven’s parking covenants were enforced by a parking policy. The Woodhaven board could not revise the master deed without a 2/3 vote, they could decline to enforce a policy in a discriminatory manner. The FHAA may be enforced against all sorts of private agreements, including master deeds, declarations, covenants, bylaws, land use regulations, special uses permits, terms, conditions, and the like. Enforcement of the FHAA is not limited to recorded covenants. The District of New Jersey observed that by statute, the association was tasked with managing the common elements and to adopt and enforce rules and regulations governing the use of the common elements. “The Association cannot seek to avoid liability under the FHAA by using the terms of the Master Deed as a shield. Rather, . . .. the FHAA was clearly intended to reach and invalidate those aspects of private agreements, such at the Master Deed, that have discriminatory effects.” Where the association has the authority to adopt rules and regulations, they are required to make those rules comply with fair housing protections.
There are quite a few takeaways from the Gittleman case:
- Each fair housing case is fact specific. The language of the community’s instruments matters. The FHAA does not provide blanket, standard exceptions to HOA covenants, rules, or enforcement actions.
- In a fair housing case, the court may be willing to look past the “plain meaning” of the state statutes and community instruments and forbid discriminatory enforcement, even if the language of the instruments does not target protected classes of persons.
- FHAA protections do not only apply to restrictions in deeds or recorded declarations of covenants. They apply to a wide variety of rules or private agreements. A community cannot evade fair housing laws through use of handbooks or enforcement policies. This makes sense, because state laws generally say that the governing instruments of a community association are viewed as a kind of private “contract.”
- Community association boards and their representatives will fight hard (i.e., allow their insurance defense lawyers to fight hard) when the official resolutions of the board are scrutinized, or community leaders are accused of prejudice, discrimination, or bigotry. Homeowners seeking to protect their rights, be they a member of a protected class or not, must be prepared for extensive litigation to achieve a favorable result.
- Disability discrimination cases illustrate incidents at the intersection of health and land use. People say that good policies balance personal liberty and choice against the community’s interest in preservation of cohesiveness and property values. This formulation is flawed. Association rules that interfere with the health of the residents, including disability issues and mental health, hold the community back from thriving. Housing is more than a coordinated grouping of speculative investments that people try their best to put a nest in.
- Antidiscrimination protections also exist on a state level, such as Virginia’s Fair Housing Law. To the extent possible, courts are required to give full effect to both the Virginia Fair Housing Law and the Virginia community association statutes. There is nothing in the VFHL that excludes HOAs and condominiums from its provisions.
- According to case law in Virginia and some other states, where a recorded declaration gives a board or committee authority to make additional rules and decide the merits of architectural approval applications, the association must conduct such regulatory activity according to a standard of “reasonableness.” Public policies reflected in the enactments of the general assembly inform notions of what is “reasonable” in a private land use context, particularly if those statutes speak to discriminatory recorded covenants.