Coronavirus: Additional Consideration for Protecting Community Associations and Continuing to Operate

Since our last posting, the impact of coronavirus on community associations has become real.  Health and safety are paramount.  While Association-related matters may seem trivial compared to a worldwide health crisis and corresponding job losses, basic business and operations must continue, albeit with new considerations.  This supplements the prior article.
 
Membership Meetings: Use of Proxies
If a community association goes forward with an annual or special meeting of its members, the use of proxies is a tool to obtain quorum so that elections and other Association matters requiring a vote may proceed.  Proxies allow a member to appoint another person to cast the member's vote at a meeting. Proxies are not new to Associations, but the use of proxies take on new meaning now.  Proxies promote participation and are a way to address the current reality that attendance at in-person meetings is curtailed by governmental mandates, if not recommendations.   
 
The "use of technology" provisions in both the Virginia Condominium Act and POA Act permit submission by electronic means, provided the documents do not expressly provide otherwise, and the electronic signature meets the requirements of applicable law or the documents, a record is created as evidence of such signature, consent or approval, and the record is kept as long as required for a nonelectronic form, and the signature can be authenticated.  Electronic means usually means printing, signing and either scanning and emailing or faxing a valid proxy to the Association.  Therefore, include an email address and fax number to submit the proxy on the proxy instructions.  In addition to the relevant provisions in the Condominium Act and POA Act, look at applicable provisions in the Virginia Uniform Electronic Transactions Act, which govern electronic transactions.
 
Review the proxy provisions contained in the Association's Bylaws and, if applicable, the Articles of Incorporation to ensure compliance with these (and statutory) requirements.  This should be done regardless of a pandemic. Whether an Association uses paper or electronic proxies, all proxy requirements must be followed so the proxy is valid.  Remember that a proxy is not the equivalent of a mail-in ballot - It requires the proxy holder to be present in person to vote for the member in his or her absence.  Proxy wording can be tricky.  It is one of the most common documents to mistake.  When in doubt, contact your Association attorney. A review of the proxy form by counsel is a great way to avoid costly and time-consuming challenges to elections and other Association business. 
 
Limiting Access to Common Areas
Associations generally are charged with maintenance and operating responsibilities for the common areas, to which the members have rights of access, use, and enjoyment.  Based on the current, extenuating circumstances, including federal, state and local requirements, Boards have to impose limits on member and guest rights to such access, use, and enjoyment.  The restrictions should be taken seriously and should be based on guidelines from federal, state and local authorities.  And, as with all rules, the restrictions must be reasonable, clearly written and communicated. Communication can come in one or more forms (e.g., emails, sandwich boards, flyers, social media, community website posting, mail, etc.).  Non-paper formats are preferable at this time. 
 
Architectural Design Applications
This is probably not an item high on an Association's priority list right now, but it is something about which to be mindful.  With many owners staying at home, owners may find themselves with additional time to take care of those home improvement projects they did not have time to do before.  Many governing documents and architectural guidelines contain time limitations (usually 45 or 90 day) regarding when design and exterior modification applications must be reviewed by an Association's Board or architectural review committee ("ARC").  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.  Consider reviewing the submissions and making decisions sooner rather than later.  This issue is separate and apart from whether the contractors' work is essential at this time.
 
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 many federal and state orders temporarily prohibiting certain enforcement actions from proceeding.  Associations should consider following the government's lead and temporarily suspend and postpone due process procedures. The Board may want to pass a resolution that formalizes any temporary moratorium on due process and enforcement actions and reserving the Association's right to proceed at a future date.  If there is a concern that a statute of limitations may arise or rights may be waived, please contact Association legal counsel for guidance.     
 
If you have any questions about what your community association should do or how to conduct business, call your Association attorney. Vandeventer Black has a knowledgeable and experienced team of community association attorneys.  Please contact us if we can assist in providing guidance, drafting policies, proxies, hearing and architectural processes, letters and decisions, and rules for the pandemic, as well as amendments to the governing documents to streamline proxy and other requirements and modify other time limitations for circumstances such as a pandemic. We are available to help protect community associations and assist with continuing to operate during these extraordinary times, as well as when business as usual resumes. Vandeventer Black has put in place technology and resources so that we can continue to conduct business and provide responsive and effective legal services, even if we cannot be in the office.    

For more information and to read additional articles regarding COVID-19, please click here.