FLB’s attorneys are here to support Homeowners Associations (HOAs), condominiums, planned communities and property management companies throughout Pennsylvania and New Jersey. In the wake of the novel COVID-19 (Coronavirus) pandemic, it is important to be guided by facts and not fear.
To that end, below are answers to some of the more common questions affecting community associations throughout Pennsylvania and New Jersey. We will continue to update our entries and offer general advice on recurrent issues during this difficult, but not insurmountable, time:
Can we lawfully restrict or shut down common elements and facilities such as clubhouses?
Generally, the community association has broad authority to regulate the use of the common elements and facilities, such as a clubhouse, gym, pool, park or playground; whereas a homeowner owns and controls his/her specific unit. Therefore, a community association is within its right to regulate the use of common elements including prohibiting access if necessity requires. More than anything, resident and member access must be allowed in a manner consistent with the ever-changing spectrum of governmental orders and regulations, including “stay-in-place orders” and restrictions on the closure of public accommodations. Closure of clubhouses and indoor accommodations in a manner consistent with governmental guidance or mandates is appropriate and is within a community association’s power.
What happens if we have an annual meeting that is required to take place during the pandemic?
The performance of corporate formalities such as annual meetings are generally governed by an association’s specific bylaws. These usually specify an annual meeting must be held to conduct association business and to inform homeowners of the association’s state of affairs and sometimes dictate a designated date or month.
The Pennsylvania Nonprofit Corporation Law of 1988 permits any nonprofit corporation, including an incorporated community association, to adopt emergency bylaws during an emergency event. An emergency event may include a catastrophe in which a quorum of the board cannot readily assemble. As part of its emergency powers, a community association Board may appropriately modify its meeting, quorum and notice procedures. Absent willful misconduct, a Board member is not personally liable for adhering to its emergency bylaws. Any regular bylaws remain intact unless they directly conflict with an emergency bylaw.
Similarly, the New Jersey Nonprofit Corporation Act grants a New Jersey community association the power to adopt emergency bylaws concerning the conduct of its business arising from an attack on the United States (a pandemic included) or any nuclear or atomic disaster. New Jersey’s Act permits the association Board to call any meeting in the manner and under the conditions set within the emergency bylaw. New Jersey’s Act also permits the association Board to modify meeting, quorum and notice requirements, and provides the same liability protection as Pennsylvania.
These are highly fact-specific considerations that should be considered and implemented in consultation with professional management and legal counsel. In light of current events, the attorneys here at FLB are ready to assist your community association in crafting precise and effective emergency bylaws.
Can Boards hold conference calls or video conferences during the pandemic rather than face-to-face meetings?
Yes, a Board may hold conference calls or video conferences during the pandemic rather than face-to-face. As of March 16, 2020, the Center for Disease Control (the “CDC”) recommends that social gatherings of 10 people or more be cancelled or held virtually and other governmental mandates may restrict gatherings. The CDC, along with other federal, state and local government institutions, is working hard to educate the public in preventing the further spread of COVID-19. Your community association should be no different.
In Pennsylvania, non-profit board members, including those for incorporated associations, may participate in a meeting by means of teleconference or other electronic technology. The catch is that the persons present must be able to hear each other; thus, e-mail communication is not an option. In New Jersey, unless otherwise specified in its bylaws, association Board members may also participate in a meeting by means of teleconference or any other means by which all persons participating are able to hear each other.
We tend to not plan for disaster; we often react to it. However, it is not too late to review or develop your association’s emergency plan. Even in these current times, it is better to discuss and create a plan to address the COVID-19 problem rather than do nothing. Further, remaining consistent and communicating the plan will help you and your homeowners maintain vigilance in these trying times.
The attorneys at FLB can walk you through your rights and obligations concerning your residents and other professionals with whom you routinely correspond. Please contact us using the form below, or give us a call at 610-797-9000. We wish you well during these extraordinary times.