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.
Chances are, your community association has a virtual presence on the Internet. Whether your association runs its own website, has a site run by a management company or some other third-party vendor, or is active on a social media site, association leaders and Managers should take some steps in order to protect the community association from potential legal problems.
Step one: Have a plan.
All too often, communities go “online” without really having a plan. The end result is usually a disorganized free-flow of ideas and information that serves no real purpose aside from being able to say that the community is online. Instead of simply throwing content on a website, the community’s leaders should determine exactly why they want the community to be online. Determining why the community is going to be online will then automatically serve to determine what gets put online. For example, if the community’s main purpose in going online is to disseminate information relevant to the community to its member-owners, then the content that is posted should be specifically tailored to that audience. Posting content about topics unrelated to information about the community will only distract from the purpose of the association’s website and may lead to unexpected problems down the road.
Step two: Limit content.
From a liability perspective, the Achilles heel for most association websites is the failure to limit content. Content should be limited, by the association, to matters that benefit the community. A community should never allow unrestricted content to be posted to its website, whether it comes from members or non-members. In other words, the official association website is not the place to allow people to post their gripes about the association, its leadership, other owner-members, the municipality, the landscaper, the Manager or a host of other unsuspecting victims. The association website should therefore not contain an “open-posting” forum, bulletin board or other area where people can freely post anything they want to the website. Remember, this content gets posted to the association website, which means that the association can be held responsible for its content. If owner-members want the community to have an online “bulletin-board” to post garage sales, items for sale, recipes, a community calendar and other events, the community should encourage members to submit this information to the designated contact person for the community website, either by email, mail or in person. This person can then compile the information, edit if necessary, and post it to the website.
• Public v. Private Content
With respect to any content that is posted by the association to its website, the difference between public and private content must be examined very carefully by the association. In a nutshell, public content is content that the whole world can see, for example, the association name, the location of the community, amenities and photographs of common areas. Public content is generally included in an association website to show people why that community is, in fact, a great place to live. Some associations post association documents, like committee forms, budgets, meeting minutes and other items as public content. Generally, associations should post these items to a designated “owners-only” area that requires a username/login and a password for access. While people who do not live in the community might, for some odd reason, want to read the association’s budget or check out last month’s meeting minutes or a blank architectural review committee application, they are not entitled to have access to these documents. These types of documents are relevant to those who live in the community and access to them should therefore be limited to residents.
An association’s controlling documents might provide the association with the ability to post information on a community bulletin board, electronic or otherwise, including the names of owners that are more than 90 days delinquent on their assessments. This information should not be posted to the “public” portion of the website because of privacy concerns and fair credit issues. For instance, if Mrs. Jones in unit 2B is 120 days in arrears on her assessments, a quick Internet search of “Mrs. Jones, unit 2B, town of XYZ” might provide this information to a potential employer, creditor or other person that might wrongly or illegally hold it against Mrs. Jones. Sometimes sharing information becomes a problem not only for those whom are the subject of the information, but also for those who are innocently providing the information for some good-faith purpose. Remember, the general rule is that once information is out in cyberspace, it can’t be taken back or permanently deleted. Therefore, it is better to ensure that the content that is posted on the association website is really content that is safe for public consumption.
Dealing with private content is a bit trickier since there are two levels: (1) private content which all members of the community have access to; and (2) private content specific to each individual owner. All members might have access to association forms and documents. If an association wants to post its various community documents online for the benefit of its owner-members, the association can easily set up a designated area that requires a login and password to gain access to this downloadable information. The designated website administrator should be the only person able to upload documents to the website, so that the association can control which documents are posted.
Associations should also include the community’s online bulletin board, calendar and contact information for the Manager in the private members-only area rather than on the public portion of the website. While this is “private” content which only members of the community can view, associations should limit the content that goes in this area just as they limit the content that goes in the public area of the website. For example, while the association might be allowed to post the names of owners that are more than 90 days delinquent on their assessments, it doesn’t mean that the association should do it— even on the “private” portion of the website. Common sense should come into play and an evaluation of why the association is posting this information should be undertaken. Moreover, if it decided that this arrearage information will be posted to the private portion of the website, the association must uniformly apply this standard to all members of the community on a consistent basis, and not just a handful of people in a piecemeal fashion. Otherwise, the association might find themselves defending an “unequal enforcement” or defamation to reputation lawsuit brought by the owner that feels like they were singled out by the association.
The second level of private content, content that is specific to each individual owner, is an area that is ripe for potential legal problems if the information were to get into the wrong hands. This content includes, but is not limited to, banking and account information for electronic assessment payments by owners, the owner’s account history and other Personally Identifiable Information (PII) like Social Security numbers, vehicle license plate numbers, birthdays, private telephone numbers and an owner’s age. Therefore, if an association chooses to post this content on the Internet, it must do so with the understanding that this information is confidential in nature and every possible precaution must be undertaken to protect this information. Aside from the normal login & password requirements, the portion of the site should also utilize a secure connection (usually Transport Layer Security, or TLS, in the form of an “https” page over the Internet) to protect the information. Associations should use a qualified, professional management company to provide such a service or a third-party vendor that specializes in this area of information technology. Retaining a third party to handle managing and protecting the private content is a good idea, but this may not completely absolve an association from liability should there be a breach of information. However, every association should strive to be proactive when it comes to protecting private content. A failure to be proactive can lead to potentially devastating consequences for an affected owner and a strong likelihood that the association will face some sort of legal liability for the breach.
Step three: Monitor, monitor and monitor some more.
If an association decides that it wants to allow some level of interactivity or unrestricted posting on its website, then it is imperative that the association monitor what is being posted on the site. Monitoring the content that is posted to the site should be done on a consistent, timely basis by a designated moderator. The moderator should enforce the ground rules that must be listed on the site as it pertains to posting. Ideally, the association should have a policy for posting that the site visitor must agree to prior to being able to post any content to the website. Any violation of the policy can be grounds for removal of the post and a ban on all future posts on the association’s website. This type of content monitoring and moderation can also be performed on social media websites like Facebook, so long as the association sets up and runs the social media page on behalf of and in the name of the association. Never allow an owner or some other person to set up a social media page on behalf of or in the name of the association, because (a) others may think it is the official association page and (b) the association won’t be able to manage/restrict the content on the page. The future trend is for the association to create an acceptable use policy for members who want to post to an “open” association website as well as a social media policy identifying the association’s social media pages as the official page.
Finally, while implementing acceptable use and social media policies and monitoring posted site content is surely proactive behavior, these actions can’t completely relieve an association of potential liability for improper, damaging, false, inflammatory or defamatory content that is posted to the association’s website or social media page. The key is to never acquiesce, either by way of action or by a failure to act, to potentially harmful postings on the association site.
Step four: Be on the lookout for the association in cyberspace.
Cyberspace, like outer space, is a seemingly endless place. Just as exploration of outer space is possible, so is exploration of the Internet. However, rather than using spacecraft, all we must do to explore the Internet is log a few keystrokes. In other words, we can utilize the myriad of search tools available on the World Wide Web to pinpoint the exact information we need. Using sites like Google and Yahoo!, for example, we can search most of the information that is publicly available on the Internet for free and with very little effort.
Thus, my advice is to perform a search, every so often, on the association’s name. This is due to the prevalence of copycat websites which purport to be the official association site, as well as an increasing number of “anti-association” sites created by disgruntled owners, former owners, non-community member neighbors or others that have an axe to grind with the association. An association should act quickly to remove a website which purports to be the official site. This is no easy task, and it usually involves litigation against the copycat site operator.
Similarly, should an “anti-association” website be located which contains negative, inflammatory, defamatory, false, confidential or damaging information on the website, the association must take affirmative steps to try and have this website taken down or at least have the harmful information removed from the site.
On social media sites, associations may discover unofficial pages run by owners, former owners and others, related to the association. If run by current owners, the association should ask the owner to remove the non-official page and ask all owners to join, “like,” or follow the official page for the community.The situation is a bit more problematic when groups of owners maintain their own page. These members of the community may use the social media page, which is sometimes public in nature due to a lack of privacy restrictions set up by the page administrator, to vent about issues of concern to the community. Association leaders or Managers should try to monitor these pages, if at all possible, and do the best they can to have the social media users limit their comments about the community or other owners. Of course it’s not always possible find every page that is somehow related to the community, but if one is found efforts should be made to try and protect the interests of the community.
Finally, community leaders, Board Members and Managers should avoid connecting with association members on social media sites. By limiting their virtual relationships, they can avoid issues surrounding favoritism and ever-present fiduciary duty issues. If not “friending” others in the community is simply not possible, then the community leaders and Manager must refrain from posting comments about the community or community issues on any website that is not designated as an official community site. Similarly, even if the community leaders and Manager are not posting comments about the community or community issues on their own or their friends’ social media walls, they have an obligation to look out for the best interests of the association when reading comments that are made by others about the association.
Associations must be proactive in cyberspace, in order to preserve the “virtual brand” of the association and protect the best interests of the association. When there is doubt as to what to do, association leaders and Managers should seek the advice of qualified legal counsel so the association can stay in control and stay out of court.
By Edward Hoffman, Jr., Esq.
* The content for this Blog post is based upon the prior written work of the author as originally published in the November/December 2011 issue of Community Assets magazine and the May/June 2012 issue of Common Ground magazine.
It’s safe to say that there’s no avoiding social media use these days whether it is for personal use, commercial use or even for the benefit of a Community Association. So just how should your Association be handling social media?
In a nutshell, the Association should own its online presence. To begin, every Association should copyright its official, corporate name, as well as other names that may frequently be utilized. This may serve to prevent others from being able to use the Association’s name online.
The Association should also affirmatively run its “official” online presence as it is good practice to never allow an owner or some other person to set up a social media page on behalf of or in the name of the Association because (a) others may think it is the official Association page and (b) the Association won’t be able to manage/restrict the content on the page. If an owner is hosting such an unofficial social media page, the Association can politely ask the owner to remove the page and can concurrently direct all owners to “join” the “official” social media page for the community by informing the owners by way of newsletter, e-mail or otherwise. If an owner or other person who is hosting the “non-official” social media page refuses to take it down, the process of trying to have an “unauthorized” Association social media page removed from the hosting social media site frequently involves litigation and can be lengthy, expensive and stressful for an Association to endure. In addition to the logistical and economic aspects involved in such an undertaking, first amendment freedom of speech issues would most certainly be implicated, and the end result is not guaranteed. However, this being said, the Association most certainly has a duty to at least make a reasonable effort to deal with any unauthorized sites which purport to be the Association site, regardless of outcome.
As for Association run social media, it is recommended that Associations create an Acceptable Use Policy (AUP) for members who want to post as well as a similarly structured social media policy (SMP) identifying the Association’s social media page(s) as the official page(s) for resident use. Having owners sign a copy of each policy would put them on notice as to the existence of each policy and may dissuade negative behavior associated with a breach of either policy. While the legal enforceability of each type of policy in a Community Association setting currently lies in uncharted waters, given the prevalence of technology in a Community Association setting these issues will most certainly be litigated at some point in the near future. An example of what the AUP should provide for includes, but is not limited to, the following:
The posting of harassing, discriminatory or otherwise threatening comments and/or material is prohibited;
The posting of pornographic, obscene, hateful, incendiary, violent, unlawful or otherwise illegal comments and/or material is prohibited;
The uploading of copyrighted material or images is prohibited;
The posting of defamatory comments of any kind is prohibited;
The posting of personal views as representing those of the Association is prohibited;
The posting of “junk” messages, advertisements or other solicitations, not related to the Association in any way, is prohibited;
The Association reserves the right to remove offending post(s) without any prior notice and/or reserves the right to terminate access to any person who does not abide by the posting policy.
Any violation of the AUP can be grounds for removal of the post and a ban on all future posts on the Association’s website. This type of content monitoring and moderation can also be performed on social media websites like Facebook, so long as the Association sets up and runs the social media page on behalf of and in the name of the Association.
While implementing acceptable use and social media policies and monitoring posted site content is surely proactive behavior, these actions can’t completely relieve an Association of potential liability for improper, damaging, false, inflammatory or defamatory content that is posted to the Association’s website or social media page. The key is to never acquiesce, either by way of action or by a failure to act, to potentially harmful postings on the Association site. Associations should contact their insurance professionals and inquire about obtaining standalone cyber-liability insurance and/or adding a cyber-liability rider to their current insurance coverage in an attempt to insure against and offset any potential liability to the extent possible. Such insurance should cover employee technology use, data breach and notification issues as well as “other” potential liability that may arise from and/or out of the Association’s online presence (i.e., defamation, fair credit issues, etc.).
Finally, community leaders, Board Members and Managers should avoid connecting with Association members on social media sites. By limiting their virtual relationships, they can avoid issues surrounding favoritism and ever-present fiduciary duty issues. If not “friending” others in the community is simply not possible, then the community leaders and Manager must refrain from posting comments about the community or community issues on any website that is not designated as an official community site. Similarly, even if the community leaders, Board Members and Manager are not posting comments about the community or community issues on their own or their friends’ social media walls, they have an obligation to look out for the best interests of the Association when reading comments that are made by others about the Association.
