Artificial Intelligence, or AI, has seemingly become an everyday term these days. People are using AI to write resumes, create rough drafts of stories based on variables that the end-user inputs, and also perform all types of tasks for personal and professional use … and … it’s evolving (quickly!). But, as I learned from an awesome acronym from my computer programming (go Basic, Fortran and Pascal!) classes way back in the stone age … GIGO. Wait, GIGO? What does this mean? Quite simply: “garbage in, garbage out“.
In the context of AI utilized in the provision of legal services, it means that the information and data that AI is gathering and aggregating from the internet for attorneysto use in real-world (i.e., not “AI-world”) court filings is oftentimes replete with utter and absolute garbage – including but not limited to absolutely incorrect legal analyses and [caselaw] summaries and citations, and other big “no-nos” for attorneys – which, as you may have already guessed, is a massive problem not just for attorneys and their law firms, but also for the clients of these lawyers and law firms.
About a week ago, on August 19, 2024, the Honorable Karoline Mehalchick, a United States District Judge for the Middle District of Pennsylvania, issued a Civil Practice Order entitled “Use of Generative Artificial Intelligence”, which provides as follows:
Increased use of Artificial Intelligence (“AI”), particularly Generative AI(including, but not limited to, OpenAI’s ChatGPT or Google’s Bard), in the practice of law raises a number of practical concerns for the Court, including the risk that the generative AI tool might generate legally or factually incorrect information, or that it might create unsupported or nonexistent legal citations. As such, any party, whether appearing pro se or through counsel, who utilizes any generative AI tool in the preparation of any document to be filed in any matter pending before Judge Mehalchick, must include with the document a Certificate of Use of Generative AI in which the party must disclose and certify:
The specific AI tool that was used;
The portions of the filing prepared by the AI program; and
That a person has checked the accuracy of any portion of the document generated by AI, including all citations and legal authority.
What exactly does this mean? It means that if your Association’s attorneys/law firms are representing your Association in a matter in front of Judge Mehalchick, they must certify that AI was used (and which type(s)), identify which portions of the filling are prepared by AI, and that someone (a real live person – go figure!) checked the accuracy of any portion of the filing prepared by AI, including all citations and legal authority. A failure to do so may result in sanctions.
While this Civil Practice Order only applies to matters in front of Judge Mehalchick in the [federal] District Court for the Middle District of Pennsylvania, Community Association attorneys, and their clients, throughout all of Pennsylvania, as well as virtually (no pun intended) in every other jurisdiction in this country, should understand that all of this is coming to a courthouse near you … and soon. Judges do not want to deal with GIGO filings in their courtrooms, so attorneys and law firms should take heed of the risks associated with the use of AI in legal practice – NOW.
If you’ve been paying attention, Hoffman Law LLC previously advised of updates to the Pennsylvania Breach of Personal Information Notification Act” (“BPINA”) in 2022/2023 in a prior Blog post found here. This Blog post is an update to same.
NEW:
Pennsylvania Senate Bill 824 (SB 824) changed the BPINA in numerous ways, and the changes become effective on September 26, 2024. We will summarize the recent changes provided by SB 824 below, not in its entirety, but as it may apply to/impact Community Associations.
1.NOTIFICATION OF BREACH. BPINA used to require notification to credit reporting agencies when 1,000 or more PA residents were impacted in the event of a breach. SB 824 brings that number of impacted residents down to 500 or more PA residents.
2. CREDIT REPORTING/MONITORING. SB 824 requires that qualifying entities provide impacted PA residents with access to a credit report and credit monitoring services, free of charge, if the following apply:
a. there was a breach of the “security of the systems” as defined by PA law; and
b. the data accessed as a result of the breach included the individual’s name (first and last name, or first initial and last name) in combination with their SS #, bank acct. # or driver’s license/state identification card #.
If the two aforementioned requirements have both been triggered, the Ass’n must provide the impacted PA individual with access to an independent credit report from a consumer reporting agency if the individual is otherwise not able to obtain an independent credit report free of charge. The Ass’n must also provide the impacted PA individual with an offer of twelve (12) months of credit monitoring services, and advise that same is available free of cost.
3. PA Attorney General. SB 824 requires that an Ass’n notify the Pennsylvania Attorney General’s Office (PA AG) whenever it provides notice of a breach under PA law to more than 500 residents of the Commonwealth (used to be 1000!). The notification to the PA AG must be provided at the same time of the notice provided to impacted individuals, and must include the following information (if known at that time):
Ass’n name/location;
Date of breach;
Summary of incident that led to breach;
Estimated total # of impacted individuals; and
Estimated total # of impacted residents of PA.
Finally, we still recommend that community associations review BPINA as amended, as Act No. 33 of 2024 (June 28, 2024), which can be found here, and discuss with their counsel, managing agents, and/or any service providers that handle personal information (especially association software providers), and confirm proper insurance coverage with association insurance professionals. As it relates to insurance, community associations should obtain adequate cyber-liability insurance to offset risk and cover a breach incident (it is noted that the cost of proper notification is tremendous, especially if the breach (now) involves notification to over 500 persons at one time (because all consumer credit reporting agencies must also be notified, as well as the Pennsylvania Attorney General’s Office).
I was recently listening to my 70’s playlist on Spotify, and the Steve Miller Band’s “Fly Like an Eagle” came on. One of the verses we all know form the song suddenly stuck out to me:
Time keeps on slippin’, slippin’, slippin’ … Into the future
Time indeed does slip … into the future. To wit, it’s already 2024 (where did 2023 go? Or 2022, 2021 and/or 2020 for that matter?). As it pertains to the community association world, what exactly is on the horizon for the future – in 2024 and beyond? Let’s discuss some of the emerging technologies in community associations to see how far we’ve come, and what is coming down the road (pun intended, electric vehicle (EV) joke here).
Electric Vehicles
A couple of years ago, I wrote an article for Community Assets entitled “Plug and Play – Solar Panels and Electric Vehicles in Common Interest Communities” (Nov/Dec 2021 issue). It’s still a very hot topic nationally. While there is currently 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 still relates to how and where electric vehicles will be charged if the vehicle is parked away from the unit because, 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.
The shift to EVs is rapidly accelerating (another EV pun, intended) as the technology evolves and the cost of EVs continues to decrease. Our industry must 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.
I am still not aware of any actual EV legislation that has been formally introduced which would impact community associations in Pennsylvania, but I do believe it’s coming at some point soon, in some manner. And when I say soon, I mean, very soon – PA Senator John I. Kane issued a Co-Sponsorship Memorandum on August 31, 2023 entitled “Residential Electric Car Charging Stations.” Pursuant to the Memorandum:
“I am introducing legislation to allow residents of condominiums and common interest communities to install electric car charging stations in their designated parking spaces. Residents will be responsible for the cost of installing the electric car charging stations. The legislation will bar unreasonable restrictions and enforcement against the use and expansion of electric car charging stations as well as the deliberate disregard of applications. Electric Vehicles have major benefits including improving air quality by lowering emissions and creating new jobs in the manufacture and distribution of these products. That is why leading auto manufacturers including General Motors are ramping up production of electric vehicles and are planning to phase out most gasoline or diesel-powered vehicles. My legislation is modeled after New Jersey’s and New York’s efforts to facilitate the expansion of electric car charging stations. Let’s join our neighboring states in their mission to make electric car ownership hassle-free and accessible. It’s time to take important steps to address climate change while also addressing the barriers that may impeded electric vehicle ownership.”
I’ve asked this before for various issues: shouldn’t we be in front of this issue, rather than behind it? Shouldn’t newresidential construction in Pennsylvania be constructed with the necessary infrastructure to support EV charging stations? Yes, it should.
However, for existing communities with old (aging) 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. If a legislator is reading this article and is considering going down this road (pun intended – EV joke # 3) with respect to existing communities, I would recommend that the legislature identify and/or create funding sources (i.e., state energy grants) which community associations could utilize to install the required infrastructure for EV charging. I am happy to discuss this with any legislator that wants to listen.
Solar Energy
Currently, 29 states (including neighboring New Jersey and Delaware) and the District of Columbia have laws which serve to prohibit association covenants or restrictions from applying to homeowners who seek to install solar panels and associated devices on their homes. Twelve more states have laws that protect easements and their establishment on a legal contractual basis without having an express solar rights law in effect. While Pennsylvania currently has no such solar law(s) in effect, solar panel legislation which would impact community associations has previously been introduced 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 community associations would not be permitted to prohibit or restrict the installation or use of a solar energy system on a detached unit.
Senate Bill 826 (from the 2021-2022 Session), took it one step further to provide that Associations would not be permitted to prohibit or 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. Currently, in the 2023-2024 Session, similar legislation has been introduced – Senate Bill 31 and House Bill 1759 – Solar Energy Systems. This legislation, as proposed, provides that a community association may not prohibit or restrict the installation or use of a solar energy system on a detached roof or a townhouse unit for which the repair of the of the unit is an owner responsibility and not the responsibility of the community association.
Thus, all of the bills that were previously introduced, as well as the current session’s bills, focus on preventing community associations from prohibiting or restricting the installation or use of a solar energy system on units in the community association. If solar is indeed the future, why are legislators still focusing on preventing associations from acting in some way? Because most community associations (the Boards and/or the owners) still do not want solar in the community and/or do not want to deal with solar issues in any way. Just like the EV issue we just discussed – shouldn’t we be in front of the issue, rather than always behind it? Community associations must begin to reconsider how they look at solar issues because it’s coming, and there will be no looking back.
Management Software
I know, I’m the community association attorney – what do I know about management software? We work with manymanagement companies in representing the interests of our mutual community association clients all over Pennsylvania, and we see that management software solutions have been evolving, and rapidly. Using the latest software solutions, community association managers and staff can:
Take payments electronically;
Perform site visits and issue violation notices, with photographs, immediately from their smartphones;
Communicate directly, and instantaneously, with all of the unit owners in the community via a communication portal and/or email blast; and
Communicate with vendors regarding association issues.
Management is also able to offer mobile apps to end user unit owners to be able to view their owners portals and communicate directly with the management regarding their accounts, and notify management of any complaints, issues or violations. Board members can also utilize mobile apps to view and conduct Board business, which was unheard of only a few years ago.
Technology is therefore allowing management to do its job better – and faster – than ever before. Expect to see even more positive changes happen in this area in 2024 and beyond.
Electronic Voting and Meetings
At some point, electronic voting and meetings in community associations will be the norm, not the exception, in Pennsylvania. While we still need to work out the wrinkles statutorily for existing communities in Pennsylvania, the Bylaws that are being drafted for new communities in Pennsylvania already reflect the change to allow emerging, electronic technologies to be utilized for voting and/or meetings (Board and/or association). These technologies, as they exist today, were not really being utilized in community associations even just five years ago – yet, today, they have become the norm.
Social Media
In a nutshell, to say that social media has changed the community association landscape is an understatement, and to say that the use of social media in community associations has drastically changed (whether good, bad, ugly or indifferent) is an even bigger understatement. Social media can be used by community associations in a positive manner, and it can also have negative implications (i.e., unofficial social media pages/online presences which are not run by the association). At the end of the day, social media use in community associations is not going away.
I have been discussing social media issues for well over a decade, and one thing that is clear is that social media issues continue to evolve. To say that media has changed the community association landscape is an understatement, and to say that the use of social media in community associations has drastically changed (whether good, bad, ugly or indifferent) is an even bigger understatement. Social media can be used by community associations in a positive manner, and it can also have negative implications (i.e., unofficial social media pages/online presences which are not run by the association). At the end of the day, social media use in community associations is not going away. Be prepared for it, and handle it appropriately.
– Edward Hoffman, Jr., Esq., CCAL
* This Blog post by the author was originally published in the Jan/Feb 2024 issue of Community Assets Magazine, a publication of CAI’s Keystone Chapter.
Many clients of Hoffman Law LLC are aware that Ed Hoffman serves as the current Chair of the Community Associations Institute (CAI) Pennsylvania Legislative Action Committee (PA LAC) and have increasingly been inquiring about PA House Bill 1795 which was signed into law on November 3, 2022 and becomes effective on May 2, 2023. The Amendments, now known as Act No. 115 of 2022, made various changes and additions to the three Pennsylvania common interest community statutes: the Uniform Condominium Act (UCA), the Uniform Planned Community Act (UPCA) and the Real Estate Cooperative Act (RECA) (we will discuss the changes to the UCA and the UPCA below). While it’s not on the level of Peter Frampton, House Bill 1795 has indeed come alive!
Independent Reviewer
To begin, for condominium associations and master associations that have over 500 units, votes in an election of the association must be submitted to an “independent reviewer” pursuant to amendments to Sections 3303(e)(3) of the UCA and 5222(e.1) of the UPCA. (It is noted that §5222 of the UPCA specifically applies to “master” associations, so if the intent was to have it to apply to all planned communities, the UPCA will presumably need to be amended once again).
What is an independent reviewer? An independent reviewer is defined in §3103 of the UCA and §5103 of the UPCA as a person who is selected by the Executive Board of a condominium and/or planned community and satisfies all of the following:
(1) Holds a certificate as a certified public accountant issued by the Commonwealth, is
licensed to practice law in this Commonwealth, or is a “vote management system”. (A “vote management system” is defined in §3103 of the UCA and §5103 of the UPCA as “a third-party vendor who operates a digital or subscription service that securely manages the conduct of elections and voting procedures” – in other words, a commercial, association voting management solutions provider).
(2) Is not a unit owner of the condominium or planned community, directly or indirectly.
(3) Has no immediate family relationship (i.e., parent, child, spouse, brother or sister) with a unit owner of the planned community or the condominium or planned community manager.
(4) Has no financial interest shared with a unit owner of the condominium or planned community manager.
(5) If compensated by the declarant, a director, the association or the condominium or planned community manager, has disclosed the terms of the compensation to all unit owners of the condominium or planned community at a scheduled meeting.
While the above provisions related to an independent reviewer apply to all condominium associations and master associations that have over 500 units, Sections 3303(e)(3) of the UCA and 5222(e.1) of the UPCA also allow condominium associations and master associations that are under 500 units to essentially “opt in” to utilize an independent reviewer, when approved by a vote of at least 51% of the unit owners.
Finally, Sections 3303(e)(3) of the UCA and 5222(e.1) of the UPCA provide that the board shall (i.e., must) present the official election results based on the certified election report from the independent reviewer at a meeting of the unit owners and shall (i.e., must) enter the results in the meeting records.
Removal of Board Members in Condominium Associations
Section 3303(g) was added to the UCA to clarify how board members can be removed with 2/3 of vote of the unit owners:
Removal of member of executive board.–Notwithstanding any provision of the declaration or bylaws to the contrary, the unit owners, by a two-thirds vote of all persons present and entitled to vote at any meeting of the unit owners at which a quorum is present, may remove any member of the executive board with or without cause, other than a member appointed by the declarant, provided notice of the intention to remove a member of the executive board is given with the notice of the meeting at which such removal is considered, as provided under section 4303(g) (NOTE: TYPO IN AMENDMENT? – the referenced section is from a different statute) (relating to executive board members and officers).
(It is noted that the UPCA already had a similar parallel provision at Section 5303(f)), therefore a new section was not required to be added to the UPCA).
Removal of Board Members and Officers – Required Bylaw Language
Section 3306(a)(3) of the UCA and Section 5306(a)(3) of the UPCA both provide that the Bylaws for an association must provide for the qualifications, powers and duties, terms of office and manner of electing executive board members and officers and removing executive board members and officers under section 3303(g) and 5303(f) (relating to executive board members and officers) and filling vacancies.
Good Standing
As it applies to condominiums and master associations, Sections 3303(e)(3) of UCA and Section 5222(e.1) of the UPCA now provide that “in order to be eligible to vote in the election, a unit owner shall be in good standing with the association.” (It is noted that a “unit owner in good standing” is already defined in §3103 of the UCA and §5103 of the UPCA as a unit owner who is current in payment of assessments and fines, unless the assessments or fines are directly related to a complaint filed with the Bureau of Consumer Protection in the Office of Attorney General regarding §3308 of the UCA or §5308 of the UPCA (relating to meetings); §3309 of the UCA or §5309 of the UPCA (relating to quorums); §3310 of the UCA or §5310 of the UPCA (relating to voting; proxies); and §3316 of the UCA or §5316 of the UPCA (relating to association records)).
Electronic Meeting Notices
A unit owner can now receive meeting notices for a condominium or planned community by electronic means if the unit owner has agreed in writing (opts in) to accept the notice by electronic means or where the bylaws permit electronic notices. See §3308(a) of the UCA and §5308(a) of the UPCA.
Electronic Meetings
Board and association meetings in condominiums and planned communities can be now be held using remote technology, i.e., virtually or by telephone conference, unless the bylaws provide otherwise. See §3308(c) of the UCA and §5308(c) of the UPCA.
While the bylaws must still require that a meeting of the association occur at least once each year, the requirement that the yearly meeting be held in person was eliminated. See §3308(a) of the UCA and §5308(a) of the UPCA.
Participation in Board or Association Meetings By Remote Technology
Unless the bylaws provide otherwise, an individual may now participate in a meeting of the board or association by means of a conference telephone or other remote electronic technology, including the internet, which allows participants in the meeting to hear each other. Participation in such a meeting shall be deemed in-person attendance at the meeting. See §3308(c) of the UCA and §5308(c) of the UPCA.
Bylaw Requirements for Delivery of Notice of Virtual Meetings
Pursuant to Sections 3308(b) of the UCA and Section 5308(b) of the UPCA, Bylaws in condominium associations and planned communities must [now] require that notice of virtual meetings of the association be given by:
(1) First class or express mail, postage prepaid, or courier service, charges prepaid, to the
mailing address of each unit or to any other mailing address designated in writing by the unit owner. Notice shall be deemed to have been given to a unit owner when deposited in the United States mail or with a courier service for delivery to the unit owner.
(2) Facsimile transmission, e-mail or other electronic communication to the unit owner’s facsimile number or address for e-mail or other electronic communications supplied by the unit owner, provided that the unit owner has agreed in writing to accept the notice by electronic means or where the bylaws expressly permit means of delivering electronic notice. Notice shall be deemed to have been given to the unit owner when sent.
Approved Methods of Voting – Now Includes Electronic Voting
Sections 3310(e) of the UCA and 5310(e) were added to the UPCA related to approved methods of voting, and provide as follows:
(1) Except to the extent expressly prohibited in an association’s declaration or bylaws, the voting rights of a unit owner may be cast or given in the following ways:
(i) in person or by proxy at a meeting of the association;
(ii) by absentee or electronic ballot; or
(iii) by another method of voting expressly provided in the association’s declaration or bylaws.
(2) An absentee or electronic ballot may:
(i) Be counted as a unit owner present and voting for the purpose of establishing a quorum, and otherwise, only for agenda items appearing on the ballot.
(ii) Not be counted even if properly delivered, if the unit owner attends the meeting to vote in person. A vote cast at a meeting by a unit owner supersedes a vote submitted by absentee or electronic ballot previously submitted for that agenda item.
(3) The term “electronic ballot” means a ballot cast or given by electronic transmission
over the internet, vote management system or the association’s community network, whether by direct connection, intranet, telecopier, electronic mail or other technological means, if the identity of the unit owner submitting the ballot can be confirmed and a receipt of the electronic transmission and ballot can be made available to the unit owner.
Acclamation (for an uncontested election)
Section 3310(f) was added to the UCA and Section 5310(f) was added to the UPCA with respect to acclamation for uncontested elections. Unless the bylaws of the association provide otherwise, these new statutory provisions provide that in the event that an election for a position on the board is uncontested, the officer or chair presiding at the election meeting may declare the nominee(s) elected by acclamation after determining there are no further nominations.
Pre-Election Sessions (Meet the Candidates) for Contested Elections
Pursuant to Sections 3308(d) of the UCA and Section 5308(d) of the UPCA, Bylaws in condominium associations and planned communities must require that in the event that there are more candidates than open positions on the executive board (i.e., a contested election), then, upon request of one or more of the candidates, the association shall hold a special session at least seven days before the election of a board member to allow the unit owners to meet each candidate for an executive board position. Each candidate for an executive board position shall have equal time to address the unit owners during a special session.
Recorded Meetings
Pursuant to Sections 3308(e) of the UCA and Section 5308(e) of the UPCA, unless the bylaws provide otherwise, meetings of the association may be recorded by the board via audio or video technology, provided that an announcement is made by the presiding officer at the commencement of the meeting that the meeting will be recorded. A recorded meeting shall be maintained and available to unit owners for a period of no less than six (6) months after the date of the meeting.
Quorum for Association Meetings After Multiple Attempts
Pursuant to Sections 3309(a)(2) of the UCA and Section 5309(a)(2) of the UPCA, except as otherwise provided in the declaration or bylaws of the association, if the association can’t obtain a quorum for any meeting of the association and fails to meet a quorum at two subsequent meetings, the association may utilize the following provisions contained in Section 5756(b) of the PA Non-Profit Corporation Law (relating to quorum) to meet quorum requirements:
(b) Exceptions.–Notwithstanding any contrary provision in the articles or bylaws, those members entitled to vote who attend a meeting of members:
(1) At which directors are to be elected that has been previously adjourned for lack of a quorum, although less than a quorum as fixed in this section or in the bylaws, shall nevertheless constitute a quorum for the purpose of electing directors.
(2) That has been previously adjourned for one or more periods aggregating at least 15 days because of an absence of a quorum, although less than a quorum as fixed in this section or in the bylaws, shall nevertheless constitute a quorum for the purpose of acting upon any matter set forth in the notice of the meeting if the notice states that those members who attend the adjourned meeting shall nevertheless constitute a quorum for the purpose of acting upon the matter.
Amendments of Bylaws
Sections 3306(a)(6) of the UCA and Section 5306(a)(6) of the UPCA were amended to clarify how bylaws may be amended, as follows:
(i) The bylaws may be amended only by vote or agreement of unit owners of units to which at least:
(A) fifty-one percent of the votes in the association are allocated;
(B) any larger majority as specified in the bylaws; or
(C) a smaller majority as specified in the bylaws if all of the units are restricted
exclusively to nonresidential use.
(ii) The vote may be taken only at a scheduled meeting and following notice to the unit owners as provided under sections 3308 of the UCA or 5308 of the UPCA (each relating to meetings) that was advertised 14 days in advance to the unit owners. Absentee voting shall be permitted to unit owners provided that the ballots must be submitted to an independent reviewer by the commencement of the scheduled meeting.
Retroactivity
At this stage it is not entirely clear what the desired intent was with respect to retroactivity of the amendments to communities that precede the enactment of the UCA and/or the UPCA, or with respect to general principles of statutory retroactivity in general. It is expected this may become an issue that will arise during the 2023-2024 legislative session, especially if challenges to the applicability of any of the amendments begin to be raised by communities.
Parting Words
This discussion of PA House Bill 1795, now known as Act No. 115 of 2022, and specifically, the various changes to the UCA and the UPCA, is intended to provide a summary of the current state of the statutory amendments as of the posting date of this Hoffman Law LLC Blog post on January 30, 2023. (The amendments, as passed, can be found here). It is expected that certain provisions may change or be further amended during the 2023-2024 legislative session – in other words, House Bill 1795 will continue to stay alive! Stay tuned.
Time flies. Since about 2010, I have been counseling community associations on risks involving potential breaches of personal information and the fact that Pennsylvania has a specific statute related to such breaches, literally called the “Breach of Personal Information Notification Act” (“BPINA”). BPINA was recently amended and signed into law by Governor Wolf on November 3, 2022 (and effective in 180 days).
As a general BPINA primer, community associations qualify as “businesses” under BPINA and are covered “entities” which do business in the Commonwealth of Pennsylvania. BPINA defines “Personal information” as follows:
(1) An individual’s first name or first initial and last name in combination with and linked to any one or more of the following data elements when the data elements are not encrypted or redacted:
(i) Social Security number.
(ii) Driver’s license number or a State identification card number issued in lieu of a driver’s license.
(iii) Financial account number, credit or debit card number, in combination with any required security code, access code or password that would permit access to an individual’s financial account.
(iv) Medical information. (Added as amended on 11/3/22)
(v) Health insurance information. (Added as amended on 11/3/22)
(vi) A user name or e-mail address, in combination with a password or security question and answer that would permit access to an online account. (Added as amended on 11/3/22)
Most community associations do not keep social security numbers, medical information and/or health insurance information (and likely should not be if they are), but many have access to and keep records of driver’s licenses, financial accounts and credit/debit cards. Many also have portals which contain a user name or e-mail address, in combination with a password or security question and answer that would permit access to an online account (usually an association account of some kind). (Note: the last section re: email addresses and login information was added as amended on 11/3/22 so community associations should use due diligence to protect the information and comply with BPINA as amended, even if they were properly handling records of driver’s licenses, financial accounts and credit/debit cards prior to the recent BPINA amendments).
Hopefully any and all of this personal information is being properly handled and kept (maintained) offsite on properly encrypted systems run by third-party providers and/or contactors to attempt to offset and/or limit liability (I note that managing agents also keep this information as well, and there should be similar considerations/protections for maintaining such data).
BPINA has always required notification of the breach of the security of the system, but the November 3, 2022 BPINA amendments added additional notification requirements, including the following new Section 3(a.3):
(a.3) Electronic notification.–In the case of a breach of the security of the system involving personal information for a user name or e-mail address in combination with a password or security question and answer that would permit access to an online account, the entity, to the extent that it has sufficient contact information for the person, may comply with this section by providing the breach of the security of the system notification in electronic or other form that directs the person whose personal information has been materially compromised by the breach of the security of the system to promptly change the person’s password and security question or answer, as applicable or to take other steps appropriate to protect the online account with the entity and other online accounts for which the person whose personal information has been materially compromised by the breach of the security of the system uses the same user name or e-mail address and password or security question or answer.
Accordingly, community associations should be aware of not just the general (preexisting) notification requirements pertinent to a breach of personal information, but associations should also understand how to handle notification involving the breach of the security of the system involving personal information for a user name or e-mail address in combination with a password or security question and answer that would permit access to an online account in accord with BPINA as amended.
Finally, this post was not intended to serve as a discussion of how to properly handle a breach of personal information nor was it intended to be an exhaustive review of BPINA in general and/or as amended; rather, the intent was to notify our community association clients and industry colleagues of changes in the law, so proper due diligence can be undertaken. For some reason lawyers [still] love to use a dead language – Latin – to make their points. Our question is therefore: parati estis? … or, are you ready?
To get ready, we recommend that community associations review BPINA as amended, which can be found here, discuss with their counsel, managing agents, any service providers that handle personal information (especially association software providers), and confirm proper insurance coverage with association insurance professionals. As it relates to insurance, community associations should obtain adequate cyber-liability insurance to offset risk and cover a breach incident (it is noted that the cost of proper notification is tremendous, especially if the breach involves notification to over 1,000 persons at one time (because all consumer credit reporting agencies must also be notified)).
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.
