Client Alert: Virginia 2020 Legislative Update for Common Interest Communities
Date: May 28, 2020
By:
Kevin A. Kernan
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 contact us if you have questions regarding the legislative changes.
Reasonable Restrictions on Solar Panels
HB 414 and SB 504 amends Title 67-701 of the Virginia Code by declaring that a community association’s restriction on the size, place, and manner of installation of solar energy collection devices on individual lots shall be considered unreasonable, and therefore unenforceable, if: (1) restrictions increase the initially proposed installation cost to the owner by five percent (5%) or (2) cause a decrease in estimated energy production of more than ten percent (10%) compared with the design as originally proposed. In order to prove that the association’s restrictions are unreasonable, the owner must provide documentation prepared by an “independent solar panel design specialist” who is licensed in Virginia and certified by the North American Board of Certified Energy Practitioners (“Specialist”).
The bill requires the lot owner to provide documentation from the Specialist “that is satisfactory to the community association” to confirm the restriction is not reasonable according to the established criteria. Please note that the legislation does not specify what documentation should be considered “satisfactory to the community association” but it is fair to suggest that community associations will most likely have to retain a Specialist of its own to confirm or refute the opinions provided by the lot owner’s Specialist. It’s also interesting to note that the legislation makes no reference to the potential that Specialists may disagree on the reasonableness of the restrictions or whether the Specialist’s documentation is satisfactory.
Electric Charging Stations
SB 630 amends the Property Owners’ Association Act, the Virginia Condominium Act, and the Virginia Real Estate Cooperative Act by restricting community associations from prohibiting the installation of an electric vehicle charging station for personal use within the boundaries of a member's designated parking space, or, in the case of a property owners association, the boundaries of a lot owner's property. However, a community association may prohibit or restrict installation of charging stations on the common areas or on the exterior of the owner’s property, or at least establish reasonable restrictions as to the manner of their placement.
Condominiums and cooperatives may also prohibit installation if installing the charging station is not technically feasible or reasonably practicable due to safety, structural or engineering conditions. They may also require the owner to have the charging station installed by an electrical contractor or engineer and to remove and restore the designated parking space once the owner has no need for it.
On a final note, the legislation offers protections for community associations by requiring owners to indemnify and hold community associations harmless from all liability, including reasonable attorney’s fees, resulting from the installation and operation of charging stations. The community association may also require owners to maintain insurance coverage for such claims and with a policy that names the association as an additional insured. That said, condominium associations and real estate cooperatives should confer with their own insurance agents to ensure that it has adequate coverage for the installation of charging stations.
Display of Political Signs
HB 720 amends the Property Owners' Association Acts and requires the association to include in their disclosure packet a statement of any restrictions on the size, place, duration, and manner of placement or display of any sign that advocates for or against a candidate, referendum, or political organization. Accordingly, Boards of Directors should give consideration to developing reasonable rules and regulations that conform to the association’s governing documents and the statute.
Virginia Fair Housing Law
The goal of the Fair Housing Law in Virginia is to afford every qualified individual housing choices where there is equal access to, and equity in the use and enjoyment of, a dwelling or property. A “protected class” is an anti-discrimination term that is used in state and federal law. It refers to a group of people who share a common characteristic and are protected from discrimination and harassment.
The Virginia Fair Housing Law (Va. Code Ann. §§36-96.1, et seq.)(“VFHL”) prohibits unlawful discriminatory housing practices based on a person’s race, color, religion, national origin, sex, elderliness, or familial status. This year, the General Assembly added to these protected classes by adoption of the Virginia Values Act, which recognizes as additional protected classes sexual orientation, gender identity, and source of income.
HB 1049 adds discrimination based on sexual orientation or gender identity to the list of unlawful discriminatory housing practices.
HB 6 further amends the Virginia Fair Housing Law to include discrimination on the basis of a person’s source of income to the list of protected classes and prohibits housing providers from using a resident’s source of income to limit such resident’s access to housing. The bill defines "source of income" as any source that lawfully provides funds to or on behalf of a renter or buyer of housing, including any assistance, benefit, or subsidy program, whether such program is administered by a governmental or nongovernmental entity.
The General Assembly further amended the VFHL with HB 99, which amends both the VFHL and the Virginia Residential Landlord and Tenant Act, to allow landlords to consider an applicant’s status as a victim of family abuse as mitigation for any adverse effect of an otherwise qualified applicant’s low credit score without violating the VFHL.
Decriminalization of Marijuana
On May 3, 2020 Virginia Governor Ralph Northam approved a bill that decriminalized simple marijuana possession, which removed penalties of jail or prison time for the offense. Lower civil penalties, like a fine, will now apply for marijuana possession and use. It’s important to note that the sale of marijuana remains illegal. This legislation may seem monumental for Virginia but it’s not expected to impact community associations a great deal. Although marijuana use and possession is no longer considered a serious crime, if the smell of marijuana smoke is considered objectively offensive, then community associations still have the authority to find the owner in violation for the governing documents for disturbing other residents’ quiet enjoyment of their Units.
Electronic Board Meeting During State of Emergency
Emergency legislation passed in April to allow common interest community boards of directors to meet electronically during a declared state of emergency. The new legislation eliminates the need for Board members to be physically present in a central meeting location during a declared state of emergency and it allows Board meetings by “electronic communication means” under the following conditions: (1) the nature of the declared emergency makes it impracticable or unsafe for the governing board to assemble in a single location; (2) the purpose of meeting is to transact the business statutorily required or necessary to continue operations of the common interest community association; and (3) minutes of a meeting held electronically must be distributed to association members by the same method used to provide notice of the meeting.
Advance notice of the electronic meeting “using the best available method given the nature of the emergency” must be provided to the Board and the members simultaneously. Arrangements for member access to the meeting through electronic means, including videoconferencing, must also be provided. It’s important to note that Boards must still comply with other procedural requirements, including quorum, owner comment period, and restrictions on the use of executive session. The type of electronic communication by which the meeting was held must be included in the minutes.
The legislation is only temporary and its language suggests that Boards should only consider the most important matters when taking advantage of electronic meeting procedures and should put off lesser items until existing statutory meeting procedures can be followed.
Extension of Right to Cancel Real Estate Sales Contract
HB 176 and SB 672 amends the Property Owners’ Association Act and the Virginia Condominium Act by extending the time a purchaser may cancel a sales contract, from three (3) days to seven (7) days after notice of a resale packet is provided to the purchaser via hand delivery, overnight delivery or electronic means. The extension is increased from six (6) days to ten (10) days after notice of a resale packet is provided via United States mail. However, the extension of time for cancellation must be provided for in the ratified real estate contract.
Please contact a Whiteford, Taylor & Preston, LLP community association 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.