Does a statutory requirement exist for the board to play a role as it pertains to the maintenance and promotion of health, safety, and welfare in Pennsylvania?
In Pennsylvania, under our respective statutes, there is no specific provision that requires boards of directors to maintain and promote the health, safety, and welfare of residents. What about the governing document? Remember, if we look first to the statutory authority and we don't see anything there, we then have to go to our governing documents, namely the declaration, the bylaws, maybe even some rules and regulations. Is there any language in your governing documents that would require the board of directors to take specific measures to promote and maintain the health, safety, and welfare of the owners and the residents? I can tell you from my experience is over the years, it is very rare to see such a provision in the governing documents, but I would still caution all of you to make sure you check because even though it is not a common provision, some provisions indeed would impose that requirement.
Are there any other common law or statutory provisions in the UCA or the UPCA which would arguably give rise to this obligation to maintain and promote health, safety, and welfare? Answer: yes! It's the fiduciary duty which requires boards of directors to stand in a fiduciary relationship with the association and this is the critical language, “act in the best interests of the association.” So, given these extraordinary times and the Covid-19 crisis, I would suggest to you that it remains in the best interest of the association to do whatever is reasonably possible within the scope of the board's authority to take certain steps and measures to try and control and mitigate the spread of this heinous disease.
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Does a statutory requirement exist for the board to play a role as it pertains to the maintenance and promotion of health, safety, and welfare in New Jersey?
New Jersey has language in their statutory authority. The New Jersey Condominium Act as well as the New Jersey Planned Real Estate Development Full Disclosure Act, which covers all condos and HOAs and the language specifically there says that an association, “shall exercise its powers and discharge its functions in a manner that protects and furthers or is not inconsistent with the health, safety, and general welfare of the residents of the community.”
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What steps, if any, should the board be taking to control and mitigate the spread of the Covid-19 virus?
The best way for boards to discharge those responsibilities is to rely upon the advice of third party professionals and third party organizations such as the CDC, federal, state, local health authorities. Boards are always better off adhering to those types of directives and guidelines that we're seeing coming out of these various organizations, almost on a daily basis. It certainly doesn't make board members and mangers’ jobs any easier, that's for sure, but you really do need to keep up with the changing and evolving standards and directives coming from those entities. Why is that so important? Because, in those respective statutes, again Section 3303 of the UCA and 5303 of our UPCA, if boards discharge those fiduciary duties in the manner that I just described – namely adherence to the advice and relying upon the advice of third-party professionals and following those directives from governmental authorities - the statute specifically provide there shall be quote, “no liability,” for the board members and in my book, that's a real good thing.
So, first, adhere to all guidelines and directives that are being promulgated by those various sources. Second, implement policies that serve to control and mitigate. Boards do have the authority to regulate and control common areas. Do whatever is reasonably possible, again in accordance with those various instructions and guidelines, to disinfect, clean, ramp up those efforts to the fullest extent possible. Will it cost the association some more money? Yes, but it's absolutely essential to do whatever is reasonably possible to control and mitigate the spread of Covid-19 and in doing so, it would be very hard for unit owner or a resident to challenge or question whether the board has acted in a manner consistent with its fiduciary obligations.
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If the board elects to close its fitness facility or gym. What should the board do if a disabled resident demands that the facility be open for him or her for medical reasons such as needing the cardiovascular equipment for a heart condition or the pulleys and weights for an orthopedic related disability.
I think you have to gauge it on a case-by-case basis and whether or not there's any merit. I think people are getting restless. And what we've done is we've offered to loan some of the equipment, if absolutely necessary, and if we think that the application or the request is quite unreasonable, the response has been twofold. One is if the governor is closing gyms and social distancing is required for everyone else, then our gym is closed. And if you do have a request for reasonable accommodation, we're going to need a note from your doctor or a request specifically addressing the requirement to open the gym during the Covid-19 crisis for this particular individual and if we do get that letter then the individual does have to be responsible for sanitizing whatever equipment he or she may need access to so that the burden doesn't fall on the association and we don't get requests for exceptions that don't have the kind of merit that is necessary for an accommodation. I think if it's illegal to open a gym then it's illegal or it wouldn't be a violation of the Fair Housing Act not to grant the accommodation.
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What can the association do if it has an annual meeting of the membership scheduled to take place this month in light of the directive to maintain and practice social distancing?
I don't know that I've seen any documents that authorize electronic attendance in annual meetings [in Pennsylvania]. The Nonprofit Corporation Law does. If your association is organized as a nonprofit corporation, members are permitted to attend an annual meeting, even if they can't hear everyone and participate with everyone. So that is a way that you can do this.
There's also what I believe is a little used section, again in the Nonprofit Corporation law, section 5509, which does authorize boards to adopt what are referred to expressly in that statute as, “emergency bylaws,” that would override the typical procedural steps that are embodied in your bylaws and the scope as set forth in that statutory section would include, for example, procedures for calling meetings, relaxation of quorum requirements, and related procedures.
In New Jersey, that state law requires that most decisions and actions that are taken by boards have to be done at meetings to which the membership has been and invited to “attend” and I use that word attend in quotes because does attend mean that you have to be there in person? Must the trustees and the members attend in person or can we attend remotely whether it be by conference call or some other web-based video type of a platform? So, the way that we analyze that as we have to take a look at the governing documents of your association, we have to take a look at stake law. It's not surprising that I'm going to say that that our state law and many of our governing documents have not quite kept up with the pace of advancing technology in this area. There are a couple of references in our statutes in New Jersey that do apply to this. One being that the New Jersey Nonprofit Corporations Act provides that trustees can participate in board meetings by conference call. So, they don't have to be there in person. Likewise, many of you who live and practice in New Jersey have heard of the recent Radburn law [which] for the first time recognized electronic communication by and in between members of associations and board members if in fact it's provided for in the bylaws and, frankly, some of the newer sets of governing documents that I've seen lately, the drafters have been taking note of the advancing technology and the advancing law and are putting provisions in their documents that do allow attendance at meetings remotely.
It's our advice that you go ahead and have the meeting but that you notify all of your residents that it is not an in-person meeting, but that if the association is able they can arrange for conference call capability or video conferencing capabilities such as Zoom or WebEx or any of those other types to allow your members in your board members to attend remotely.
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Should the board consider suspending assessments for some period of time?
The short answer to your question is no, that we cannot suspend assessments. The board is required to adopt, and impose, and collect for common and expenses and despite the pandemic, expenditures of the association will continue to accrue as a set forth in the budget and as vendors continue to perform work. The board can't, therefore, suspend or waive the unit owners’ obligation to pay assessments. However, there are a number of things the board can and should do within the business judgment rule to act in a manner in which in good phase is believed to be in the best interests of the association and a couple of things that I think boards you should and must do the following.
First, I think we need to adopt a policy on how to treat new delinquencies and figure out whether or not [they] are as a result of the coronavirus, which I am certain they will be. The policy could include a waiver of late charges and a consistent system for handling requests for payment plans and for temporary forbearance. While we don't suspend that the obligation to pay assessments, I think we can make arrangements for those that are impacted to give them some relaxed payment terms and not charge late charges during that time. Depending on the number of requests that the association gets for special arrangements, boards can decide as to whether or not to be proactive and send out a notice that essentially says during these times, if you need special arrangements, please contact us and we will consider waiving late charges, giving you additional time to pay and to make arrangements. The argument is some will think that that's an invitation to everyone to take advantage of the situation and the other train of thought is, you know, I think you need to do this specifically now because the request will be coming in.
Finally, what I think the board should do is and what we recommend that they do is really take a hard look at the budget and take a look at it and delay anything or postpone anything that is you know arguably discretionary at least this year. Most of the Pennsylvania suburban associations have had a reprieve from snow removal and may be able to use what was in the budget for snow removal to fund either a shortfall in the assessment delinquency resulting from Covid-19 or to pay some of the other expenses that are unexpected, for example, cleaning of facilities and having to deal with legal expenses or other expenses in seeking advice as to how to deal with this pandemic.
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There have been some associations that have received a question about providing a refund to owners due to the fact that common facilities are closed. Can you address that?
The reality is that the common facilities, whether they're open to members or not, are continuing to incur expenses. You still need to heat them. You still need to insure them. You still need to have management. Now you're cleaning them, which is even more expensive, and the temporary closure of a facility does not have a significant impact on assessments. And certainly, the inability to use a particular facility does not give rise to the right to withhold assessments or pay a smaller amount because now your amenities are closed.
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Are associations limited or restricted in bringing or prosecuting collection cases in our courts at this time and what about enforcing judgments or exercising rights to foreclose on a delinquent unit?
[Many] Court[s] of Common Pleas are essentially closed at this time except for emergency and criminal matters. We're essentially treating this as a as a hold on all legal action until at least the immediate pandemic restrictions are lifted. We're not taking any of those actions to enforce. Most associations have not, in the last three weeks at least, undertaken any other collection actions. While we're pressing existing cases, we have not pursued any new cases.
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Are associations required to disclose to their members and residents the fact that a resident in the building or in the community has tested positive for Covid-19?
We don't know how courts are going to rule somewhere down the road about how the exigent circumstances of this situation affect legal duties and legal obligations. I think what we're all trying to do is find the best way to go, complementing it with the best legal way to go. We might be talking about distinctions between legal duty and moral duty; those things which we must do and those things which we should do. The kinds of conversations I had with my kids when they were growing up. I think you want to encourage everyone to cooperate in making that information available. But unless you're authorized, I don't think you should disclose someone's identity. I don't know that it's a HIPAA issue but I do think it could be a privacy issue and I think on balance, unless you have specific authorization, I would not disclose the identity of a particular individual. I would as I said, be communicating with the community about the value of being open about this about how everyone needs to know what's going on around you to take appropriate actions an appropriate testing. So, I would be encouraging people to come forward with the information, but I would not require disclosure of it.
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If the association becomes aware of a resident who consistently fails to observe and follow the basic instructions and directives issued by the CDC and other health authorities, should the association take any action to stop or curtail such conduct?
With someone who's consistently not following proper procedures, I would be aggressive about that. Much more so than in regard to disclosure of private information. When you know that someone is doing something that is endangering the rest of the community, I think you have to act on it.
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What about electronic voting for elections?
Most documents will not provide for electronic voting yet. We've done a lot of amendments when electronic voting first became a hot topic. I would say that under these circumstances, arguably, you can take action to do what is necessary to operate the association, and if you have to have a meeting then adopt a resolution, perhaps even emergency bylaws that permit and provide for electronic voting and, most importantly, publish what you're doing. Tell unit owners what you're doing. I hate the word transparent but as long as your actions are not hidden and as long as the unit owners understand why you're doing something and that you're doing something, I just don't see a judge later taking the side of a complainer if the association has done what is reasonable and what is necessary to function and what would otherwise I think be something that an association should be able to do.
From the New Jersey side, as you know, the Radburn law that I mentioned a little while ago was passed a couple of years ago and recognized in statute, the ability of boards to conduct electronic voting in their elections and ever since a number of associations have amended their bylaws to include that. By the way, Radburn says you can only do electronic voting if your bylaws provide for it, so a lot of associations that I'm aware of have, in fact, been making those amendments to provide for electronic vote.
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What can or should an association do with pending construction or repair projects?
I'm going to give a typical lawyer’s answer and say it depends, but I would say that the better approach, that to the extent where you have construction projects or repair projects that are considered essential, to borrow that term that we're seeing certainly from the Pennsylvania Governor's office and elsewhere throughout the country, that if it's essential for purposes of maintaining, promoting health / safety welfare issues. [I]f you're in the midst of some other project that can be deferred, postponed, or delayed, I think it's in the best interest of the association to do that, again, as long as it does not adversely impact the health, safety, and welfare of the residents living within the community.
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Does the association or the contractor have the right to terminate the contract, implement a work stoppage, or extend the time periods for performance and completion of the contract?
Take a good look at your governing declarations for various authority and provisions that may permit boards and associations to take certain action. I would encourage all members, board members, managers, to take a close look at the contract because there may well be certain provisions in the contract which would fully support a work stoppage, or an extension of the time period, or you often see what are referred to as force majeure clauses - where acts of God and other events - could trigger a permission to terminate or extend and I would suggest that, certainly this current pandemic would fit properly within the scope of such a clause if you have one in your contract, but having said that, contracts can still be negotiated. They can be adjusted if there Is agreement between the parties to the contract.
I would say in these situations and given these extraordinary times, regardless of the language, whether it exists or doesn't exist in the contract, hopefully, you'll have a decent enough rapport or relationship with the contractor that you can make certain adjustments whether it's a deferral a postponement, perhaps the contractor and this is not an unlikely scenario where the contractor says, but wait a minute, I'm depending upon that work. And as far as the contractor views it, it's within the list of the essential work and claims that he or she or they want to come to the site and continue with the project. Perhaps you could work something out by way of a compromise where you can provide certain installment payments that were not otherwise provided in the contract, linked to some kind of a deferral or reduced scope of work, at least until such time as the as the stay-at-home directives are removed.
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What do we do with our pools? And. what about pool contracts? What do we do? Should we open the pool, should we not, and if we don't are we going to still have to pay?
The first thing you want to do is you want to have a conversation with your contractor and find out what position they're going to take and then, of course, you have to have your lawyer take a look at the at the contract that you have with that vendor and see whether or not any of those provisions are in there.
You also have the doctrine of impossibility of performance. So, the work may not be permitted under the governor's orders of either state, so, that may also be of impact to the enforceability of the contract or to the requirement that the work be performed. But, I echo both of your sentiments that the best way to approach this is to speak to your vendors and not got to call the lawyers
And I think, as to pools, again consistent with the various directives that we've discussed, I think it's certainly appropriate and prudent for pools to be closed as one of those amenities in order to control and mitigate the spread of the virus, but I think what we've been trying to do, where possible, is work out an arrangement with the pool contractor that even though the pool may not be open for the membership that to the extent it's already been opened that perhaps, in this interim period, that the contractor be permitted to maintain the pool. Not necessarily to the same level or degree that the contractor would during open pool season, but at least to make sure that any potential costs, down the road, are reduced, any repair costs because of the failure to maintain the pool. So, I do think that you can have some limited maintenance work and repair work done, again, as long as the association and the contractor adhere to the requisite directive from the CDC and other regulatory authorities.
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Is the association permitted to put certain enforcement actions on hold such as enforcement of its architectural controls, without impairing its rights to proceed after the current Covid-19 directives are relaxed?
I just recently heard something that I didn't know and it raises this issue. Apparently there is an online effort to encourage people across the country to fly flags, namely the American flag, in as a sign of solidarity. And of course, we also know that we've been seeing news reports of people wanting to put holiday lights back up as a means of trying to get through a difficult time. Well, as you as you know, those types of things are regulated to the extent they can be through state statutes by our associations and the question then becomes, can we prevent people from putting their holiday lights back up or putting you know 300 Little American flags on their front lawn? The answer is, I believe that the association's do have the ability to use reasonableness to approach it in a humanitarian way and to relax those types of enforcement actions during this time, but that does not, in my view, prejudice their ability to, when this is all past us, to go back to life as normal.
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What about the need to adhere to certain timeframe set forth in the association's governing documents, such as having fifteen days for the board to meet and approve or disapprove a unit owners application for architectural changes or the request is deemed approved.
We all have to understand the constraints that were operating under right now and I don't think there's any judge that would find against an association if they were not able to comply with that 15-day deadline or any such deadlines like that. But, again, as has been mentioned by my colleagues a number of times before, communication is so key at this point and during this process that that if, in fact, there is some clock that's running that you as an association don't think you're going to be able to comply with, you've got to reach out, and you've got to communicate with your residents that are subject of those issues, so that they at least know ahead of time what you're planning to do.
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Can we require owner owners or contractors to wear safety masks when in common areas and if they do not do so, can the association prevent them from coming on property or entering the building?
You can and certainly should take these kinds of precautions with all the contractors that come on the property, the contractors that the association is engaging and contractors that owners are bringing onto the property. To the extent you can, you should be trying to encourage everyone to take these kinds of precautions. I'm certainly not suggesting you encourage everyone to wear a face mask. That's a debate we see on the news on TV and on the internet and may becoming more prevalent but with regard to contractors, I think you have the authority to do it. I think it's in the best interest of the association for you to do it. So, I certainly think that you can and you should require owner contractors to do it and you should can and should require association contractors to do it as well. Enforcement is difficult. So, this comes back to encouraging compliance, promoting compliance, as much as it is compelling obedience down the road. Come back to the idea of communication and make sure that everyone knows why these restrictions are in place, how important they are, how they protect the rest of the community, and how intent you are in seeing that they're followed.
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We are scheduled to have our common grounds mowed in about ten days. What obligations does the board have to alert homeowners? And what advice should we be giving, should we provide to residents.
Yes, on any of the services that are intended to be performed on, or around, or in the common areas, I think it's absolutely vital for the associations to let the homeowners know what's being planned, the schedule so that homeowners are aware of it, and can modify their schedules. So, for example, if they're intending to traverse a certain area either to get to a car, if they're if they're permitted to go to work or to go to the store or whatever the case may be, that they're fully aware that a contractor or contractors may be working in and around those areas as well, within a certain timeframe too. And, I would suggest that for purposes of management, that you do your best as possible to obtain confirmation from the contractors as to the date and time, specifically, when they are planning to the out at the properties so that you could, in turn, forward that information on to the residence.
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How Do I Join the Chapter Board of Directors?
Serving as a member of CAI's Chapter Board of Directors is a rewarding and challenging experience. Serving on the chapter board requires participation at regular board meetings, attendance at chapter programs, time spent reviewing documents such as financial statements, policy documents, etc, and contributing to the discussion and planning of chapter strategic initiatives and programming.
Self nominations are accepted in the Summer of each year and are generally due in the chapter office by early September. While all members in good standing are eligible to be nominated to the chapter board, the nominating committee does actively recruit from members who serve on a chapter committee, and particularly those who serve as chair of a chapter committee. These leadership positions serve as good learning experiences for individuals interested in potentially joining the chapter board.
As outlined in the chapter's By-Laws, the Chapter "Board of Directors shall have supervision, control and direction of the affairs and property of the Chapter, shall determine the policies of the Chapter, shall actively pursue the purposes and objectives of the Chapter and CAI, shall insure that the Chapter and its Bylaws comply with the policies and procedures of CAI, and shall have discretion in the use and disbursement of Chapter funds. ."
The Chapter Bylaws also provide for the size and composition of the the Board of Directors, which shall be composed of the number of Directors as determined by the Members, but in no event shall be more than eleven (11) Directors plus the immediate past Board President and any non-voting regional council liaisons. Directors must represent Membership Representation Groups as defined in the bylaws. These requirements, in addition to geographical considerations, weigh heavily on the nominating committee, which selects nominees to fill the slate each year.
Members who are interested in joining the chapter board should review the Board Member Qualifications and the Board Member Statement of Expectations which all board members are asked to sign at the beginning of each year. Please review this information to be sure you are able to comply with the expectations of chapter board members. Be sure to return your nomination to the chapter office before this year's deadline!
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How Do I Re-Instate My Lapsed CMCA?
The Community Association Manager International Certification Board (CAMICB) policy permits a CMCA to reinstate the CMCA credential once during the course of a CMCA's career, subject to the reinstatement policies outlined in the "Reinstatement" portion of the CMCA Handbook, including payment of a $200 reinstatement fee and fulfillment of applicable continuing education requirements. For complete steps on how to reinstate your CMCA, visit the CAMICB website.
A CMCA seeking subsequent reinstatement(s) of a lapsed CMCA credential must complete the application for reinstatement and:
• Re-take and pass the CMCA exam. Full application fees apply.
• Or: Submit to the CAMICB office proof of completion of 16 hours of continuing education for each year in which the credential was inactive; submit payment of a $105 service fee for each year in which the credential was inactive; and submit payment of a $200 reinstatement fee.
Any CMCA requesting an initial or subsequent reinstatement of the CMCA credential must attest that, during the period in which the credential was inactive, the CMCA:
• Has upheld the CMCA Standards of Professional Conduct
• Has not represented himself/herself as an active CMCA
Reinstatement of the CMCA credential is subject to review by the CAMICB Board of Commissioners.
If you have any questions about CMCA reinstatement, please contact CAMICB.
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What is the CMCA Application Process?
The Community Association Managers International Certification Board (CAMICB) receives many questions about the CMCA application process. Click the link above for a step by step process on applying for the CMCA certification.
- The CMCA can be obtained with a minimal investment in time.
- With just a few days in the required prerequisite course, one day for the exam, and time in between to study, you can be on your way to receiving your certification.
- The CMCA can be obtained at a relatively low cost, yet it's a great investment in your future.
Candidates will have one year from the date of approval to sit for the examination. There is no limit on the number of times a candidate can sit for the exam. If you or a member have a question about this process, contact CAMICB.
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How do I find a transcript of chapter courses I have attended along with education credits I have earned?
Click here for complete information on CAI Professional Manager Credentials.
To print a transcript of your courses, follow these instructions:
Login to your member record. Once you are logged in, click on the My Education Credits link on the left side menu.
Your name and contact information will appear along with a list of classes you attended and the corresponding education credits earned. Click on the "Print this page" link above your name to print a copy of your transcript. Please note this transcript will only include chapter seminars, webinars and other events.
Please note: Only Pennsylvania & Delaware Valley Chapter programs will appear on this transcript. For a transcript of PMDP courses and other CAI national programs you have attended, log in to your record on the national CAI website.
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