Law Empowerment Principles in the Time of Coronavirus
Principle Four – Homeowners’ and Condominium Association Superheroes
By Sheyna Burt, Esq.
Nothing breeds anxiety quite like the feeling of helplessness. Conversely, nothing relieves anxiety quite like finding, claiming, and using your power. This applies to life and to law.
In this series of articles, we will explore various “Law Empowerment Principles in the Time of Coronavirus,” things you can do during this period of upheaval to take control of what is within your control. Note that these articles are not intended to be legal advice and should not be received as such. Consult an attorney to discuss your specific situation and legal needs.
In this piece, we will take on Principle Four – Homeowners’ and Condominium Association Superheroes.
Clark Kent never won any popularity contests. At best he was unnoticed; at worst he was annoying and in the way. What most didn’t realize was that behind the exasperating façade of a hapless reporter was Superman (spoiler alert).
If you ever have served as a volunteer on a condominium or homeowners’ association board, you’ll know that these organizations often are similarly afflicted: misjudged, ignored, and disliked, but ultimately trying to save humanity from evil villains in the form of overgrown lawns and snow-covered sidewalks.
Thankless as the job sometimes feels, Board and Committee volunteerism in community associations is critical to their ability to maintain the aesthetic and financial integrity of the places many of us call home. The work is made even more difficult … and necessary … by the Coronavirus pandemic. How, though, can a group of volunteers get anything done in the midst of stay-at-home orders and financially strained residents?
By using their superpowers, of course.
Superpower #1: Remote Meetings
Many organizations have transitioned fairly effortlessly to the use of remote meetings; this has not been the case with community associations. In Virginia, Sections 55.1-1816(B) and 55.1-1949(B)(4) of the Property Owners’ Association Act and the Condominium Act, respectively, permit Boards to meet by telephone or video conference, so long as no fewer than two of the Directors are physically present at a meeting place identified in the notice provided to the residents who must be allowed to attend. These provisions are at odds with Governor Northam’s stay-at-home order, setting up a troubling Sophie’s choice for Boards with business that cannot wait for the end of the pandemic.
The Virginia legislature is the source of Superpower #1. At the April 22, 2020, veto session, the General Assembly adopted amendments that override the requirement that two Directors be physically present. Once signed by the Governor (which is expected to happen any moment now), Boards may meet virtually during a Governor-declared state of emergency so long as they abide by the following:
The Board must provide notice to the membership concurrent with delivery of the notice to the Board and that notice must be accomplished using the best available method, e.g., emails, social media, and websites;
The membership must be able to access (i.e., at least hear and, if possible, also view) the meeting using electronic means, including an opportunity to comment, if possible; and
The Secretary, Manager, or other person responsible for taking and distributing meeting minutes must ensure that the minutes state that the meeting took place during a state of emergency using electronic means and the means must be identified.
Association Boards may wish to explore platforms such as Microsoft Teams, Zoom, Webex, Go to Meeting, and Google Meets before settling on the application that best serves its needs. Boards also may find it useful to adopt an appropriate administrative resolution that spells out how it will use the platform it selects along with user-friendly instructions for the residents.
Superpower #2: Financial Flexibility
To borrow and butcher a phrase, when the economy sneezes, community associations catch a cold. Job insecurity from COVID-19 closures almost certainly will impact the ability of members to pay assessments, which will impact associations’ main revenue source.
Boards, however, have a superpower in the form of financial flexibility. A limited moratorium on late fees or deferring payments pursuant to a repayment plan can go a long way towards building goodwill and releasing the pressure residents feel. Some associations have organized the collection of non-perishable foods and gift cards for distribution to food pantries or neighbors needing extra help. Especially magnanimous associations have adopted revised budgets that lower temporarily member assessments. Pro tip: these feats of generosity are best accomplished with the assistance of a financial expert and attorney to ensure that the association is acting fairly and consistently with proper authority and documentation.
Boards also have the power to adjust their financial priorities during this time. This can include making short-term adjustments to reserve contributions, increasing the bad debt line item, borrowing from reserves or financial institutions, and reducing or eliminating certain “wants” (as opposed to “needs”) from the budget. Larger associations with paid staff may even qualify for certain government stimulus programs.
The key to all of this is to remember that budgets are organic, malleable things that can and should be adjusted to reflect an association’s practical realities.
Superpower #3: Armed against Apathy
If apathy is the community association’s kryptonite, the monotonous grind of social distancing just might be the thing your community can use to overcome indifference. Many people are finding themselves desperate for communication and connection. The association can use that for betterment of the community.
Are your residents more present than usual? This is a good time to use electronic and printed newsletters to deliver pertinent pandemic and non-pandemic updates regarding common area/element cleaning protocols, facility opening schedules, meetings, maintenance reminders, fun things to do, etc. Are residents contacting the leadership team with COVID-19 questions and/or spending time exploring the association’s website and social media? Be sure to capture their emails and other contact information; you may be able to fill in some gaps in your databases. Are your residents visibly bored? Maybe you’ll finally get that social committee staffed with members of your Coronavirus-inspired virtual book club and participants in the walking window scavenger hunt.
Importantly, this superpower includes the ability to limit certain problematic connections. For example, while the Governor’s emergency order remains in place, associations should consider restricting the presence of nonessential guests, to the extent that they can enforce such a restriction (e.g., apartment-style condominiums with a front desk or concierge). Whatever the ownership style of the association community, residents should be advised against short-term rentals such as Airbnb during the entirety of the stay-at-home order.
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Associations generally are not regarded as faster than a speeding bullet, more powerful than a locomotive, or able to leap tall buildings with a single bound. They are not without their strengths, though. Condominium and homeowners’ associations have the power to meet without compromising safety, exercise financial flexibility, and overcome villainous apathy. With all that power it’s only a matter of time before somebody makes a summer blockbuster movie out of your friendly, neighborhood common interest community.
Check Back for the Final Article in this Series, Principle Five – Nonprofits: Surviving by Service
Sheyna N. Burt, Esq., Attorney and Owner of The Law Office of Sheyna Nicole Burt, PLC, www.burtlaw.co, info@burtlaw.co, 571-659-2871