Our first guest is Tony Campisi, Executive Director of CAI’s Keystone Chapter. You’ll get to know Tony and learn a lot about the Keystone Chapter and CAI, including the history of the Chapter, the importance of the Legislative Action Committee, the Chapter’s new name and website, and more. We hope you enjoy it and learn something along the way.
I’ve defended many Associations and their Boards/Board Members over the years in defamation actions. 2020 and 2021 saw a substantial rise in these actions being brought, and there’s no reason to believe 2022 and beyond will be any different.
Traditionally, in Pennsylvania, a lawsuit for defamation had to be filed in the county where the publication of the allegedly defamatory statement occurred. This all changed in November of 2021, when the Pennsylvania Supreme Court issued an opinion in Fox v. Smith, et al., 39 EAP 2019 (Nov. 17, 2021).
In Fox, Pennsylvania’s high court analyzed the venue issue taking into account internet-based publications (versus print-based, such as newspaper) of the alleged defamatory statement, and held that venue is appropriate in any county where publication of the defamatory statement occurred, even if it differs from the county where the injury (the making of the defamatory statement) actually occurred.
The Fox Court discussed that “under the applicable Rules of Civil Procedure, venue is proper … in counties in which a cause of action has arisen…” and “a cause of action for defamation arises where publication of defamatory statements occurs.” The Court went on the hold that “publication occurs where a third-party recipient understands the statement as being defamatory” and “when a person is defamed via a medium with worldwide accessibility, a cause of action may arise in multiple venues.”
Finally, the Court found that “per a straightforward application of the civil procedural rules, then, a plaintiff may select a single venue in a defamation action in any location in which publication and concomitant injury has occurred, albeit that publication and harm may have ensued in multiple counties.” A link to the Fox case is here.
Contact Hoffman Law LLC to discuss how we can assist your Association in handling and/or defending defamation allegations.
– Edward Hoffman, Jr., Esq., CCAL
Look around, leaves are brown…
There’s a patch of snow on the ground …
(A Hazy Shade of Winter, Simon and Garfunkel, lyrics by Paul Simon)
Every year, community associations face innumerable claims and lawsuits for accidents, injuries and damages for incidents involving snow and ice on association property. These claims and lawsuits are expensive and time-consuming and can potentially impact community associations’ insurance rates. A while back, I was interviewed* for CAI’s HOA Resources Blog regarding snow removal policies in HOAs. Below is the Q&A from that interview.
Q: Why should an association have a snow removal policy?
A: Every association with such a need should adopt a snow removal policy. Outdated snow removal policies can create just as large of a liability issue for the association as not having one. It’s important for the board to implement the policy and apply it uniformly and consistently.
Q: What are the top factors associations must consider when creating a snow removal policy?
A: First, associations should determine who is responsible for the snow removal, such as a service provider that will be performing contracted work. Boards and managers should check their insurance certificates and be certain that the association is named as an additional insured under each policy. The service provider’s proposal/specification sheet is not an actual contract.
Next, the threshold for snow removal must be determined. The industry standard in the Northeastern U.S. is generally 2 inches of accumulation. Special care should be attributed to ice and sleet events, meaning the association must address other hazardous conditions in the community.
Finally, consider what level of control the association is exerting over the service provider. The more control the board asserts while they work, the more potential liability should an incident occur. The association should contract for snow removal work according to the parameters set forth in a properly drafted and approved service contract.
Q: Should associations in areas that do not routinely get measurable snow have a policy?
A: Every association should have a policy for handling a snow event. There may not be a need for a snow removal contract in areas without measurable snowfall, but all associations should have a snow event action plan in place.
Boards and managers in an association without a snow removal policy should consider their options. While some areas without regular snowfall may not require one, having a snow event policy can prevent liability concerns later. Associations should review their snow removal policies periodically to determine their relevancy. One policy can be the difference between a winter wonderland and a slew of lawsuits.
– Edward Hoffman, Jr., Esq., CCAL
*The CAI HOA Resources Blog link to the interview can be found here: https://hoaresources.caionline.org/does-your-hoa-need-a-snow-removal-policy/
As many of you may (or perhaps may not) know, I have the distinct honor of serving as the current Chair of the Keystone Chapter’s Legislative Action Committee (PA-LAC). I was recently thinking about possible “forward-looking” Community Association legislation in Pennsylvania, and two things immediately came to mind: Solar Panels and Electric Vehicles (EVs). Please allow me to share my thoughts with you on these issues.
Solar Panels
Let’s be clear, solar panel legislation which would impact Community Associations under Title 68 (Real and Personal Property) of the Pennsylvania Consolidated Statutes has previously been introduced in Pennsylvania multiple times: Senate Bill 1039 – Residential Rights to Solar Energy (2017-2018 Session); Senate Bill 436 – Removing Obstacles to Residential Rights to Solar Energy (2019-2020 Session); and Senate Bill 826 – Ensuring All Residential Homeowners have Access to Solar Energy (2021-2022 Session). The common theme exhibited in the first two Senate Bills is that Associations would not be permitted to prohibit or restrict the installation or use of a solar energy system on a detached unit. The Senate Bill that has been introduced in the current Session, Senate Bill 826, takes it one step further and provides that Associations would not be permitted to prohibit or restrict the installation or use of a solar energy system on a detached roof or a townhouse unit (with language that the repair of the roof of a townhouse unit is designated as the responsibility of the owner of the unit and not the responsibility of the association).
Thus, all of the Senate Bills that were previously introduced focused on preventing Associations from prohibiting or restricting the installation or use of a solar energy system on units in the Association. This leads me to wonder, if solar is the future, why are legislators focusing on preventing Associations from acting in some way? The simple answer is likely one we don’t want to hear: because most Associations do not want solar in the community and/or do not want to deal with solar issues in any way. I get it, change is hard. But let’s think about this – technology, including solar, keeps evolving and at some point, we won’t be able to avoid dealing with it. The end result will likely be that legislation will be introduced – and become law – which will essentially force all Associations to allow solar, whether we like it or not.
So my question is: shouldn’t we be in front of this issue, rather than always behind it? I believe the answer is yes, because, in the not too distant future, solar technology will evolve to a point where it will become economically beneficial for all unit owners to install solar panels. Developers will offer options to install solar panels on new construction units with increasing frequency. Unit owners are installing solar panels to charge their electric vehicles (see next discussion point, below). Associations should therefore really begin to reconsider how we look at solar.
Yes, Board Members and Managers, I already know some of your concerns: (1) the aesthetics of solar panel installation; (2) maintenance and installation issues; (3) the impact on or through common areas, especially if only one unit owner would be benefitting from solar installation; (4) potential damage to common or shared roof structures or attached units, especially if only one unit owner would be benefitting from solar installation; (5) insurance issues; (6) liability and indemnity concerns; and (7) will it cost the Association anything, either short or long-term? While these are valid concerns, we can come up with solutions to all of these issues if we proactively seek to do so.
Let’s change our way of thinking and be ahead of the curve on solar energy legislation in Pennsylvania’s Community Associations. If we don’t, we will be left in the dark – figuratively and perhaps even literally.
Electric Vehicles (EVs)
The electric vehicle discussion is occurring with increased frequency in the Associations I represent and has been a hot topic nationally in the Association industry over the last few years. While there has been limited pushback related to EV charging in Associations with single family detached units (usually related to aesthetics of installing outside of the unit/garage vs. inside the garage), in stacked condominium and townhome communities it’s been a different story.
The debate about EVs in these communities generally relates to how and where electric vehicles will be charged if the vehicle is parked away from the unit. This makes sense as, most of the time, the current infrastructure present in older communities will substantially limit the ability to actually install charging stations in common areas, in addition to Association-related logistical, legal and technical issues such as the location of the charging stations, use of parking spaces, deeded spaces, limited available parking, insurance, tremendous expense, disturbance of common facilities and common elements, liability, who will pay for the electricity, commercial EV charging providers on the premises, Level 1, Level 2 and Level 3 charging, and more.
Despite all of this, it’s obvious that the shift to EVs is rapidly accelerating (pun intended) as the technology evolves and the cost of EVs begin to come down. Think about the Model T: it was the first vehicle that almost every American could actually afford to purchase – and, at one point, the majority of Americans actually owned a Model T. While we may not see Americans purchase EVs as rapidly and in such a proportion that occurred with the Model T, I do believe that we are on the cusp of a major shift in mindset from focusing on traditional internal combustion engine (ICE) vehicles to EVs and/or Plug-In Hybrid vehicles with an extended EV (battery-only) range. Remember, before the Model T, railroads and even horses were utilized by many Americans for travel.
The end result is that our industry needs to proactively figure out how to handle EVs – in old communities and in new communities. It will obviously be much easier to deal with this in new communities where the necessary infrastructure required for EV charging stations is installed at the time the improvements are installed in the units, common areas and common facilities.
While I am not aware of any legislation that has been introduced which would impact Community Associations under Title 68 (Real and Personal Property) of the Pennsylvania Consolidated Statutes, I do believe it’s coming at some point soon, in some manner. Just like solar, shouldn’t we be in front of this issue, rather than behind it? Interestingly, legislation was introduced just this Session as it relates to electric vehicle charging in new non-residential construction – House Bill 481 – Electric Vehicle Charging Infrastructure in New Non-Residential Construction (2021-2022 Session). This legislation seeks to amend the Pennsylvania Construction Code Act to require new non-residential buildings in the Commonwealth to be constructed with the necessary infrastructure to support EV charging stations, ensuring the availability to charge EVs in places consumers frequent most, such as retail facilities, hotels, schools and restaurants.
But what about the places where people live? Shouldn’t they also be constructed with the necessary infrastructure to support EV charging stations? Yes, they should. EV charging infrastructure legislation for new residential construction will therefore come first. For existing communities with old infrastructure and other limitations, this will be far more difficult, so any legislation requiring existing Associations to allow EV charging in common area parking situations must be carefully reviewed and discussions must occur. If any legislator is considering going down this road (pun intended – again) with respect to existing communities, I would recommend that the legislature identify and/or create funding sources (i.e., make state energy grants, etc. available) which Associations could utilize to install the required infrastructure for EV charging.
In closing, I bring to you lyrics from a forward-looking Rush song, “Virtuality”, released in 1996 when internet technology was still in its infancy:
Let’s dance tonight
To a virtual song
Press this key
And you can play along
Let’s fly tonight
On our virtual wings
Press this key
To see amazing things
Let’s embrace, not fight, forward-looking Community Association legislation in Pennsylvania, so we can see amazing things.
– Edward Hoffman, Jr., Esq., CCAL
The content from this Blog post was originally published in an article entitled “Plug & Play: Solar Panels and Electric Vehicles in Common Interest Communities” in the November/December 2021 issue of Community Assets magazine, a publication of the CAI Keystone Chapter.
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