May 1, 2020
In March 19, 2020, I posted an article entitled, “Do HOAs Have to Meet Openly During the Coronavirus?” This explored how existing community association open meeting statutes might apply during the Coronavirus epidemic. The epidemic has since spread, particularly in the Washington, D.C. metropolitan region and other cities. On March 23, 2020, Virginia Governor Ralph Northam issued an emergency order directing citizens to stay at home, maintain social distancing, and restricting many normal public activities. That is expected to remain in effect for some time. Continuing effects of the epidemic and emergency orders are felt in community associations, particularly high-rise buildings where residents rely upon hallways, stairs, elevators, laundry rooms, and other common areas. Lobbyists representing the community association industry (lawyers, managers, and other HOA vendors) convinced the General Assembly to add community association boards to the list of “public bodies” that now temporarily enjoy relaxed restrictions on making their meetings accessible to their constituents.
These “open meeting” or “open government” statutes exist for good reason. HOA and condominium boards gravitate towards deliberating and deciding in an informal, nondisclosed fashion whereby affected landowners cannot determine what is going on and how they can participate. Normally, “open meeting” protections take the form of in-person, publicized meetings with an opportunity to record the meeting or make comments. For many reasons, there are challenges in translating this “openness” to a hearing conducted on ZOOM or some other audio or video-conferencing technology. However, owners’ interests can also be prejudice if legal or health considerations interfere with the boards ability to meet. As an attorney who represents lot or unit owners in disputes with neighbors or boards, I want the board to have timely, properly conducted meetings so that things can get done.
On April 24, 2020, Governor Northam signed House Bill 29 into law during a special legislative session. The General Assembly added to this budget bill some temporary laws facilitating use of remote meetings for official business. While HB 29 is in effect, when the Governor declares a state of emergency, any public body, including the governing boards of community associations governed by the Condominium Act or Property Owners Association Act may meet by technological means without a quorum physically assembled at a brick-and-mortar location. This relaxation of legal requirements only applies to the Board of Directors. HB 29 says nothing about committees, association architectural review boards, or meetings of the members at large. Many people will be confused by this and mistakenly believe that this confers substantive or procedural powers on community association boards that it does not. This blog post is to push back on any false “We can do whatever we want” viewpoint.
HB 29 says that they may only meet in such a fashion if,
(i) the nature of the declared emergency makes it impracticable or unsafe for the public body or governing board to assemble in a single location;
(ii) the purpose of meeting is to discuss or transact the business statutorily required or necessary to continue operations of the public body or common interest community association as defined in § 54.1-2345 of the Code of Virginia and the discharge of its lawful purposes, duties, and responsibilities;
(iii) a public body shall make available a recording or transcript of the meeting on its website in accordance with the timeframes established in §§ 2.2-3707 and 2.2-3707.1 of the Code of Virginia; and
(iv) the governing board shall distribute minutes of a meeting held pursuant to this subdivision to common interest community association members by the same method used to provide notice of the meeting.”
Of these four, (ii) raises the most questions for associations. First, does this mean that the HOA or condo board can only carry on “essential” business at these technology-driven meetings or can they conduct any business discussed in the governing instruments? How much deference should boards receive in determining what is necessary or essential? HOA boards typically have issues that they want to get resolved. Often there are directors who view certain things as urgent or important that could easily be deferred until after the epidemic is over. Landowners ought to remain vigilant and not disregard notices or letters from their HOA because the governors stay at home orders are in effect.
Second, under the Condo Act and the POAA, the recorded instruments define what is necessary and lawful for the board of directors. The declaration and bylaws provide the substantive rights and responsibilities of the board and individual owners. They also outline the procedural requirements to schedule and conduct meetings and hearings of the members, directors or committees. HB 29 does not overwrite any substantive or procedural requirements memorialized in otherwise valid HOA or condo governing instruments.
Third, under Virginia law, statutes are interpreted and applied by the courts by a rebuttable presumption that they ought not to be interpreted in a fashion to rewrite a deed or covenant. HB 29 relaxes certain “open meeting” statutes found in the Nonstock Corporation Act, POAA or Condo Act or other legislation. How to reconcile HB 29 with those statutes, and the particular “contractual” obligations found in governing instruments may present thorny legal questions for lawyers, owners, directors and courts to struggle with.
Many boards are adopting rules and regulations that outline temporary protocols for how to handle certain matters during the coronavirus epidemic. However, HB 29 and the “permanent” statutes do not give boards special powers to bypass the legal requirements to amend the declaration without the signatures of 2/3 of the members or whatever other criteria found in their governing instruments. The declaration may not give them the authority to adopt by board vote the language they have chosen in the emergency resolutions.
Item (iv) is also interesting. For many years, HOA and condo boards have been loath to post meeting minutes of director meetings on their websites. But under this temporary legislation, they must make the available to exercise these privileges.
If a HOA or condo board desires to use this statute, they are subject to the following further requirements:
1. Give notice to the public or common interest community association members using the best available method given the nature of the emergency, which notice shall be given contemporaneously with the notice provided to members of the public body or governing board conducting the meeting;
2. Make arrangements for public access or common interest community association members access to such meeting through electronic means including, to the extent practicable, videoconferencing technology. If the means of communication allows, provide the public or common interest community association members with an opportunity to comment; and
The nature of the emergency, the fact that the meeting was held by electronic communication means, and the type of electronic communication means by which the meeting was held shall be stated in the minutes of the public body or governing board.
Notice that this does not require boards to use technology that allows members to make comments, but merely suggests that they do. ZOOM or similar technology has many practical limitations that Americans are becoming more familiar with. I do not like the wording that seems to give HOA boards discretion to determine how much access they want to give their members into what business they are conducting on their behalf. Business conducted in HOA hearings tends to be document intensive.
HB 29 expressly prevails over prior contradictory laws. However, there are many provisions of the Condo Act or POAA that relate to these matters but do not directly “contradict” them. In Virginia, the courts attempt to reconcile seemingly contradictory statutes to give meaning and effect to all provisions. If owners were to seek legal challenge of HOA board action taken pursuant to HB 29, it is likely that the courts would interpret HB 29 in a fashion to avoid overriding existing law except when there is no real other rational way to resolve difficulty in interpretation. HB 29 does not mean that boards get to completely set aside the Condo Act or POAA.
HB 29 does not state whether technologically driven meetings may be used to hear an architectural application, alleged rule violation, or consider other action that directly impacts a member. Can the measures described in HB 29 be used in such an instance if that owner objects or is not permitted to comment or submit materials in respond to director or manager questions? Does HB 29 override the “due process” that owners are supposed to be afforded in rule violation hearings? I think that the answer is “no.”
Many HOA or condo boards already disregard the “open meeting” requirements imposed on them by statute. Some officers or directors with inadequate professional assistance may lead themselves to believe that HB 29 provides them with a mandate to do whatever they see to be expedient during the COVID-19 emergency.
Other boards may decide that HB 29 is simply too much trouble to implement or not worth the hassle and expense of purchasing the technology and training people in how to use it. Remember that most boards meet only once a month.
While the coronavirus epidemic continues and governor emergency orders are in effect, landowners ought to pay close attention to what their HOA and condominium boards are doing and seek legal advice as necessary to protect their rights. There are people, be they rogue unit owners, board members, vendors or other members of the community who may not be above attempting to exploit a crisis to settle a score or for personal benefit.