Last Spring as part of emergency legislation the General Assembly authorized association boards of directors to meet virtually but did not include member meetings. This has caused significant delays in elections and other important meetings requiring a membership vote. I am pleased to report that new amendments, just signed by the Governor, will make life so much easier for all of us involved in community association governance. The new legislation affects both the Property Owners Association Act and the Condominium Act but does not become effective until July 1, 2021. In order to make the virtual meeting option available the amendments of several statutes approach the issue by allowing electronic communications unless the governing documents prohibit it. This approach eliminates the need for document amendments in order to utilize electronic means. That said, there are explicit requirements for the board to adopt guidelines for use of these more liberal forms of communication and voting to ensure that the rights of owners are protected in the process. Most governing documents do not address the topic of electronic communication and voting – especially ones not written recently. Here are the important new “rules of the road” on use of technology with regard to meeting notices, assembly and voting – the italicized words are taken from the relevant statutes:
- Voting. Unless expressly prohibited by the governing documents, a member may vote at a meeting of the association in person, by proxy or by absentee ballot. Such voting may take place by electronic means, provided that the board of directors has adopted guidelines for such voting by electronic means. Members voting by absentee ballot or proxy shall be deemed to be present at the meeting for all purposes. If the vote, consent or approval is required to be obtained by secret ballot, the electronic means shall protect the identity of the voter. If the electronic means cannot protect the identity of the voter, another means of voting shall be used.
- Notice. In lieu of delivering notice [by United States mail or hand delivery], such officer or his agent may send notice by electronic means if consented to by the unit owner to whom the notice is given, provided that the officer or his agent certifies in writing that notice was sent and, if such electronic mail was returned as undeliverable, notice was subsequently sent by United States mail.
- Conduct of meeting. Any meeting of the association, the board of directors, or any committee may be held entirely or partially by electronic means, provided that the board of directors has adopted guidelines for the use of such electronic means for such meetings. Such guidelines shall ensure that persons accessing such meetings are authorized to do so and that persons entitled to participate in such meetings have an opportunity to do so. The board of directors shall determine whether any such meeting may be held entirely or partially by electronic means.
These new laws are not temporary during the pandemic. These are permanent changes to the law unless amended in future sessions of the legislature. This is good news for associations in terms of obtaining maximum participation in member meetings. Hopefully there will no longer be a problem in obtaining a quorum in order to have a meeting. Members who are out of town or homebound are able to participate in various ways. The statutes make it clear that the term “electronic means” is intended to include “teleconference, video conference, internet conference or other electronic methods.”
We want you to know that if your association is incorporated under the Virginia Nonstock Corporation Act there is a provision in that statute which allows for remote participation in annual and special meetings. Like the new law discussed above it requires guidelines and procedures put in place by the board of directors to ensure the integrity of the process. There would still need to be a meeting at the designated place where there are some members physically present.
You can access the House bill in which the amendments are found by going to Google and typing in “HB1816 Virginia 2021.” If you have questions about these amendments and statutes and how to implement them with the required guidelines please give us a call and we will be glad to help.