2021 Legislative Changes Impacting Virginia Community Associations

July 1 means new laws become effective in Virginia.  The 2021 legislative session and special sessions were busy and resulted in sweeping changes—many of which impact Virginia community associations.  Of significance to property owners’ associations (“POAs”) and condominium associations are the following laws that become effective July 1, 2021:

1. Use of Electronic Means for Meetings and Voting (HB1816/SB1183)

Any meeting of the association (e.g., annual or special meetings of the members), board of directors, or committee may be held entirely or partially by electronic means so long as the board has adopted guidelines for the use of electronic means at such meetings. The guidelines must ensure that those accessing the meetings are authorized to do so and that persons entitled to participate in such meetings have an opportunity to do so.  The definition of electronic means in both the POA Act and the Condominium Act will be augmented to add a meeting conducted by electronic means, which includes a meeting conducted via teleconference, videoconference, Internet exchange, or other electronic methods.  The requirement to have at least two board members physically present at the meeting place included in the notice is eliminated.

The decision to hold any meeting entirely or partially by electronic means will be within a board’s discretion.   If, however, a person does not have the capability or desire to conduct business using electronic means, an association is required at its expense to make available a reasonable alternative for such person to conduct business without use of such electronic means.  This requirement may make it necessary for associations to plan for an in-person component to meetings.

At any meeting of the association, members or owners will be permitted to vote in person, by proxy, or by absentee ballot, unless the association’s governing documents or condominium instruments expressly prohibit it.  Such voting may occur via electronic means provided the board has adopted guidelines for doing so.  In addition, members or unit owners who vote by absentee ballot or proxy will be deemed to be present at the meeting for all purposes, which will help in achieving quorum.  Further, if the vote, consent, or approval is required to be obtained via secret ballot, the electronic means must protect the identity of the voter; if not, another means of voting must be used.

• Practice Tips: For associations that want to hold virtual meetings, the board will need to adopt guidelines for use of electronic means.  For associations that are incorporated, it is important to also follow the member meeting requirements contained in Section 13.1-844.2 of the Virginia Nonstock Act, particularly subsection C, which may require an in person component. Associations should consult legal counsel regarding preparation of the statutorily-required guidelines and to discuss various aspects related to whether a meeting can be completely virtual and to voting.

Amends: Va. Code §§ 55.1-1800, 55.1-1815, 55.1-1816, and 55.1-1832 (Virginia Property Owners’ Association Act); and 55.1-1900, 55.1-1935, 55.1-1949, 55.1-1952 and 55.1-1953 (Virginia Condominium Act)

2. Rulemaking Authority (HB1842)

House Bill 1842 clarifies that a majority of members or unit owners at a special meeting of the association may repeal or amend any rule or regulation adopted by the board of directors.  In addition, the Virginia Condominium Act is amended to more closely mirror the POA Act and provide express authority to condominium boards to adopt and enforce rules regarding the use of common elements and other areas of responsibility assigned to the association in the condominium instruments.

Amends: Va. Code §§ 55.1-1819 (Virginia Property Owners’ Association Act); and 55.1-1959 (Condominium Act)

3. Rulemaking Authority Concerning Smoking (HB1842)

A board of directors for a POA may establish rules that restrict smoking in the development, including rules that prohibit smoking in common areas and in attached private dwellings, except to the extent the declaration provides otherwise. Condominium boards may create rules that restrict smoking in the condominium, including rules that prohibit smoking in the common elements and within units, except to the extent the condominium instruments provide otherwise.  Emphasis added.

• Practice Tip: Associations should consider whether to adopt smoking rules and consult with legal counsel to discuss enforcement options.

Amends: Va. Code §§ 55.1-1819.1 (Virginia Property Owners’ Association Act); and 55.1-1960.1 (Condominium Act)

4. Marijuana (SB 1406 and HB 2312)

Persons 21 years and older may legally possess up to one ounce of marijuana.  In addition, persons 21 and older are permitted to cultivate up to four marijuana plants for personal use at their place of residence, but no household may have more than four marijuana plants.  “Household” is defined as those individuals, whether related or not, who live in the same house or other place of residence and marijuana may only be cultivated at such person’s main place of residence.  Each marijuana plant must not be visible from the public right of way and must also have a legible tag that includes the person’s name, driver’s license or identification number, and a notation that the marijuana plant is being grown for personal use.

• Practice Tip: Associations should consult with their insurance professionals to determine what insurance coverage or exclusions are in place for claims related to marijuana.

Amends: Va. Code §§ 4.1-1100; 4.1-1101; and many other amendments, which can be located here

5. Disability-Related Requests for Parking Accommodations (HB1971)

Requests for accessible parking to accommodate a disability will be treated as a request for a reasonable accommodation, even if it includes a physical modification.  In addition, the Association will be financially responsible for the costs associated with such accommodation, unless the request poses an undue financial and administrative burden or fundamentally alters the nature of the Association’s operations.  Deciding whether a request for accessible parking constitutes an undue financial and administrative burden or fundamentally alters the nature of operations for the Association will be determined on a case-by-case basis, should be given due consideration, and will require the Association to engage in a statutorily-required interactive process with the requesting individual.

• Practice Tip: Budgets should be reviewed and adjusted or prepared to include consideration of the potential cost of providing accessible parking accommodations. Community associations should also consider adopting a fair housing reasonable accommodation and modification policy that will address not only requests for accessible parking, but also any other accommodation or modification requests the Association may receive (e.g., assistance animals, installation of ramps, addition of certain doorknobs on unit doors, etc.).  Such a policy provides consistency and a structure in evaluating requests and can also include an accommodation/modification form for requesting individuals to complete and submit.

Amends:  Va. Code § 36-96.3:2 (Virginia Fair Housing Law)

6. Prohibited Discrimination Based on Military Status (HB 2161/SB1410)

Virginia fair housing laws and regulations are designed to provide for fair housing to all individuals regardless of certain factors, such as race, color, religion, national origin, sex, familial status, disability, elderliness, sexual orientation, gender identity, source of funds, and status as a veteran. The protected class of “status as a veteran” will be “military status”, which includes a member of the uniformed services or reserves, a veteran, or a dependent.

• Practice Tip: Associations should be aware that accommodations may need to be granted for owners who are in the military, such as to restrictions or rules impacting those with military status who want to rent their home due to a deployment or other military-related relocation.

Amends: Va. Code §§ 36-96.1; 36-96.1:1; 36-96.2; 36-96.3; 36-96.4; and 36-96.6 (Virginia Fair Housing Law)

7. Addition of Disability as Unlawful Discriminatory Employment Practice (HB1848)

The Virginia Human Rights Act is amended to prohibit employers from discriminating against any individual because of such individual’s disability, among other protected classes.  In addition, employers are required to provide reasonable accommodations for persons with disabilities if necessary to assist such persons in performing a particular job, unless the employer can demonstrate that the accommodation would impose an undue hardship on the employer. Further, employers must give notice of such rights via a post in a conspicuous location and in any employee handbook.  These laws apply to employers with more than five employees.

For association with more than 5 employers, see our Labor & Employment team’s detailed article on these amendments.

Amends: Va. Code §§ 2.2-3902; 2.2-3905; 2.2-3905.1 (Virginia Human Rights Act); and 51.5-41 (Persons with Disabilities)

8. Limitations on Judgment Enforcement (HB2099)

Execution and action on a judgment obtained prior to July 1, 2021, will continue to be enforceable for 20 years from the date of a judgment, unless the period is extended as provided in Va. Code § 8.01-251B.  For judgments obtained on or after July 1, 2021, however, the time to execute and bring action on a judgment will be reduced to 10 years from the date of judgment, unless extended per Va. Code § 8.01-251B.  These limitation periods may be extended by recording a certificate in the Clerk’s Office before the expiration of the respective limitation period, which will extend the limitation period on enforcement for 10 years from the date of the recorded certificate.  A judgment creditor may record one additional extension prior to the expiration of the 10 year extension period, extending the judgment enforcement period for another 10 years from the date of the second certificate.  A lawsuit to enforce a judgment lien must also be brought within these respective time limitations.  Further, a settlement agent or title insurance company may release a judgment lien after complying with certain statutory procedures if the obligation secured by the judgment lien has been satisfied by payment made by the settlement agent.

• Practice Tip: With the significantly reduced enforcement period, associations should consider whether to put procedures in place to extend outstanding judgments. Associations should work with their management teams, accountants and legal counsel to prepare procedures.

Amends:  Va. Code § 8.01-251 (Limitations of Actions)

9. Increase in General District Court Jurisdictional Limits (SB1108)

The jurisdictional claim limit of the general district courts will increase from $25,000 to $50,000, exclusive of interest and attorneys’ fees.  This means more actions will be within jurisdiction of the general district court.

Amends: Va. Code §§ 8.01-195.4 (Civil Remedies and Procedure); 16.1-77; and 16.1-107 (Courts Not of Record)

10. Local Stormwater Management Fund (SB1309)

Presently, localities are permitted to create a local Stormwater Management Fund consisting of appropriated local moneys for the purpose of granting funds to an owner of private property or a common interest community for the construction, improvement or repair of a stormwater management facility or for erosion and sediment control.  Effective July 1, 2021, such funds may also be used for flood mitigation and protection measures that are part of a comprehensive flood mitigation and protection plan adopted by the locality, and these grants will prioritize projects that include nature-based practices.

Amends: Va. Code § 15.2-2114.01 (Public Utilities)

11. Dangerous Dogs; Procedure for Adjudication (SB1135)

The procedure related to the adjudication of dangerous dogs will be restructured.  Any law enforcement officer or animal control officer who has reason to believe an animal is a dangerous dog may apply to a magistrate the issuance of a summons requiring the owner to appear before a general district court.  Such officer must provide the owner with written notice of such application and for thirty days following the written notice, the owner must not dispose of the animal other than surrender to the animal control officer or by euthanasia by a veterinarian.

Law enforcement and animal control officers are not permitted to apply for a summons if, upon investigation, the officer finds (i) in the case of an injury to a companion animal that is a dog or cat, that no serious injury has occurred as a result of the attack or bite, that both animals are owned by the same person, or that the incident originated on the property of the attacking or biting dog’s owner or (ii) in the case of an injury to a person, that the injury caused by the dog upon the person consists solely of a single nip or bite resulting only in a scratch, abrasion, or other minor injury. In determining whether serious injury to a companion animal that is a dog or cat has occurred, the officer may consult with a licensed veterinarian.

After a summons is issued, an animal control officer may confine the animal until the evidence is heard and a verdict is reached.  The evidentiary hearing pursuant to the summons must be heard not more than 30 days from the issuance of the summons.   The Commonwealth is required to prove its case beyond a reasonable doubt. The court will determine that the animal is a dangerous dog if the evidence shows that it (i) killed a companion animal that is a dog or cat or inflicted serious injury on a companion animal that is a dog or cat, including a serious impairment of health or bodily function that requires significant medical attention, a serious disfigurement, any injury that has a reasonable potential to cause death, or any injury other than a sprain or strain or (ii) directly caused serious injury to a person, including laceration, broken bone, or substantial puncture of skin by teeth. The appeal of a dangerous dog finding must be heard within 30 days.

For more information related to these amendments, please use the link below.

Amends:  Va. Code §§ 3.2-6540; 3.2-6542; and adds 3.2-6540.1 through 3.2-6540.04, 3.2-6540.04, 3.2-6541.1, 3.2-6542.1, 3.2-6542.2, 3.2-6543.1, 3.2-6562.2 (Authority of Local Governing Bodies), and 18.2-52.2 (Crimes Against the Person)