A Look at Virginia's New Laws Affecting Community Associations

The new bills signed into law on July 1, 2017 affecting Virginia community associations help clarify obligations and requirements ranging from governing documents and disclosure forms to assistance animals and disability documentation.   These new laws aim to decrease uncertainty and improve understanding of purchasers and associations. 

Since the Virginia Supreme Court decided the case of Tvardek v. Powhatan Vill. Homeowners Ass’n, 291 Va. 269 in February 2016, community associations in Virginia have been wading in a sea of uncertainty, wondering whether amendments to their governing documents were valid.  Associations were unable to enforce amendments and forced to spend valuable money determining the legal status of the amendments.  The passage of House Bill 1554 should put your association at ease, because the bill validates amendments to association documents made prior to the effective date of the legislation. 

The resale disclosure requirements of the Code of Virginia generate a ton of paperwork at closing and often make it hard for prospective purchasers to read and understand exactly what their duties are with respect to a community association.  However, all parties benefit when a purchaser fully understands their rights and responsibilities when purchasing a home subject to the Property Owners’ Association Act or a unit subject to the Condominium Act. House Bill 1475 that was signed into law revises the Common Interest Community Board’s one-page disclosure packet cover sheet to make it easier for purchasers to understand how association covenants and restrictions impose obligations on the association and the purchaser. 

Perhaps the biggest change this year involves the Virginia Fair Housing Law.  There has been an increase in litigation over the provisions of the Fair Housing Law and how they affect community associations.  Community Associations have been testing the limits of the laws, hoping to remain immune from some of the provisions only to be hit with harsh penalties for violations.  House Bill 2006 adds specific definitions confirming that assistance animals can be animals other than dogs, assistance animals are not pets, and assistance animals do not have to be trained or certified.  The law also states that an individual entitled to an assistance animal may not be required to pay a fee for having the animal.  Finally, and perhaps most significant, the new law broadens the class of people who can provide documentation of an individual’s disability.  Associations will now have to accept documentation from anyone who has “actual knowledge” of the disability and can no longer require that a medical provider provide such documentation. 

A more detailed summary of Virginia’s new legislation that may affect your community association is included below:

House Bill 1475 (2017) – Association Disclosure Packets 

• This legislation amended Section 54.1-2350 of the Code of Virginia, and now requires the Common Interest Community Board to include in an association’s disclosure packet a statement that the purchase contract for a lot located within a development that is subject to the Virginia Property Owners’ Association Act is a legally binding document once it is signed by the prospective purchaser where the purchaser has not elected to cancel the purchase contract in accordance with the law.

House Bill 1554 (2017) – Amendment to the Declaration

• This legislation amended Section 55-515.1 of the Property Owners' Association Act to provide that, except as otherwise provided in the declaration of a property owners’ association, an association may amend its declaration by a two-thirds (2/3) vote of the owners.
• The new law was introduced in response to the Virginia Supreme Court’s decision in Tvardek v. Powhatan Vill. Homeowners Ass’n, 291 Va. 269, 784 S.E.2d 280 (2016).  In Tvardek, the Supreme Court held that an association that amends its declaration documents under Virginia Code §55-515.1 must follow the separate certification procedure for the amendment to be effective.  The Supreme Court reversed and remanded the trial court’s decision, which granted a plea in bar because the statute of limitations tolled one year after the amendment to the declaration became effective.  The Supreme Court held that the association’s amendment was not effective because it did not certify that the requisite majority of members signed the amendment, as required by Virginia Code §55-515.1.
• Under the new law, an action to challenge the validity of an amendment must be brought within one (1) year from the effective date of the amendment.  The new law clarifies that an amendment becomes effective when recorded, with the required certification, among the land records.
• The new law provides that amendments recorded prior to July 1, 2017 are not affected by the voting or recording requirements set forth in subsections (D) and (F) of Virginia Code §55-515.1. 

House Bill 2006 (2017) – Virginia Fair Housing Law; Rights and Responsibilities with respect to the Use of an Assistance Animal

• This legislation amended the Virginia Fair Housing Law (Virginia Code §36-96.1, et seq.), setting forth the rights and responsibilities under the law with respect to maintaining an assistance animal in a dwelling. The new law establishes a process through which a person with a disability may submit a request for a reasonable accommodation to maintain an assistance animal in a dwelling, including any supporting documentation verifying the disability and disability-related need for an accommodation.
• The new law broadens the definition of an individual with a disability to include physical and mental impairments that substantially limit one or more life activities. A “physical or mental impairment” is defined, in part, as “a physiological disorder or condition” that affects at least one body system or a “mental or psychological disorder” including, among other things, “emotional or mental illness” and “learning disability.” “Major life activities” are defined as activities such as “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”
• The new law broadens the definition of “assistance animal” to include untrained an uncertified, emotional support animals.  The new law also states that “an assistance animal is not a pet.”  Therefore, associations that limit the number of pets allowed are no longer able to include an “assistance animal” in the number of pets the owner has in his/her home. 
• The new law establishes a process through which a person with a disability may submit a request for a reasonable accommodation to maintain an assistance animal in a dwelling, including any supporting documentation verifying the disability and disability-related need for an accommodation.  Your association may not charge a “pet fee,” a “deposit” or any “additional rent” to an owner who needs an “assistance animal.” The disabled person, however, remains responsible for any damage caused by the animal.
• The new law allows your association to ask for the owner to provide “reliable documentation of the disability and the disability-related need” for the “assistance animal,” but broadens the class of persons who can provide that documentation.  Under the new legislation, anyone with a “therapeutic relationship” with the disabled person can provide the requested documentation.  A “therapeutic relationship” is defined as “the provision of medical care, program care, or personal care services, in good faith, to the person with a disability by (i) a mental health service provider as defined in §54.1-2400.1; (ii) an individual or entity with a valid, unrestricted state license, certification, or registration to serve persons with disabilities; (iii) a person from a peer support or similar group that does not charge service recipients a fee or impose any actual or implied financial requirement and who has actual knowledge about the requester's disability; or (iv) a caregiver, reliable third party, or government entity with actual knowledge of the requester’s disability.”  Accordingly, your association may have to accept documentation from someone other than a medical doctor, psychologist or psychiatrist.
• Under the new law, a request for reasonable accommodation to maintain an “assistance animal” may be denied for any one of the following reasons: (i) the requester is not disabled; (ii) the requester does not have a disability-related need for an assistance animal; (iii) the accommodation imposes an undue financial and administrative burden on the person receiving the request; or (iv) the accommodation would fundamentally alter the nature of the operations of the person receiving the request.  The new law provides that whenever a request for a reasonable accommodation to maintain an assistance animal in a dwelling is denied for reasons other than that the requester does not have a disability or a disability-related need for an assistance animal, an interactive process shall be initiated to determine if there is an alternative accommodation that would effectively address the disability-related need.
• The new law provides that if any provision of its provisions is determined by the U.S. Department of Housing and Urban Development to be not substantially equivalent or otherwise inconsistent with the federal Fair Housing Act of 1968, 42 U.S.C. § 3601 et seq., as amended, such provision shall not be enforceable.

House Bill 2045 (2017) –Property Owners’ Association Act, Designation of Authorized Representative by Seller, Association Disclosure Packet

• This legislation amended Section 55-509.4 and Section 55-509.6 of the Property Owners’ Association Act. 
• Under the new law, unless expressly authorized by the Property Owners’ Association Act, the declaration or as otherwise provided by law, the association may not require the use of any for sale sign that is (i) an association sign or (ii) a real estate sign that does not comply with the requirements of the Real Estate Board. An association may, however, prohibit the placement of signs in the common area and establish reasonable rules and regulations that regulate (a) the number of real estate signs, (b) the geographical location of real estate signs, (c) the manner in which real estate signs are affixed to real property, and (d) the period of time after settlement when the real estate signs must be removed.
• The new law provides that no property owners’ association may require any lot owner to execute a formal power of attorney if the lot owner designates a person licensed by the Real Estate Board to serve as his authorized representative in the sale of a lot.
• The new law provides that if a request has been made to an association or its common interest community manager to furnish the disclosure packet and such packet is not provided within fourteen (14) days of the request, it shall be deemed a waiver of any claim for delinquent assessments or of any violation of the declaration, bylaws, rules and regulations, or architectural guidelines existing as of the date of the request with respect to the subject lot.
• The new law authorizes the Common Interest Community Board to assess a monetary penalty for failure to deliver the association disclosure packet within fourteen (14) days against the association or its common interest community manager.
• The new law also authorizes the Common Interest Community Board to receive a complaint directly from any person aggrieved by an association’s failure to deliver a resale certificate or disclosure packet within the time period required under the Condominium Act, the Virginia Real Estate Cooperative Act, or the Property Owners’ Association Act.

House Bill 2274 (2017) – Condominium Act, Resale by Purchaser, Designation of Authorized Representative

• This legislation amended Section 55-79.97 and Section 55-79.97.1 of the Condominium Act.
• Under the new law, unless expressly authorized by the Condominium Act, the condominium instruments or as otherwise provided by law, the condominium association may not require the use of any for sale sign that is (i) a unit owners’ association sign or (ii) a real estate sign that does not comply with the requirements of the Real Estate Board. A unit owners’ association may, however, prohibit the placement of signs in the common area and establish reasonable rules and regulations that regulate (a) the number of real estate signs, (b) the geographical location of real estate signs, (c) the manner in which real estate signs are affixed to real property, and (d) the period of time after settlement when the real estate signs must be removed. 
• The new law provides that no unit owners’ association may require any unit owner to execute a formal power of attorney if the unit owner designates a person licensed by the Real Estate Board to serve as his authorized representative in the sale of a unit. 
• The new law provides that if a request has been made to a unit owners’ association or its common interest community manager to furnish the resale certificate and such certificate is not provided within fourteen (14) days of the request, it shall be deemed a waiver of any claim for delinquent assessments or of any violation of the declaration, bylaws, rules and regulations, or architectural guidelines existing as of the date of the request with respect to the subject unit. 
• The new law authorizes the Common Interest Community Board to assess a monetary penalty for failure to deliver the resale certificate within fourteen (14) days against the unit owners’ association or its common interest community manager. 
• The new law also authorizes the Common Interest Community Board to receive a complaint directly from any person aggrieved by a unit owners’ association’s failure to deliver a resale certificate or disclosure packet within the time period required under the Condominium Act, the Virginia Real Estate Cooperative Act, or the Property Owners’ Association Act.

For a complete reading of the new laws, please refer to the full text of the laws available on the Virginia Legislative Information System a www.lis.virginia.gov.

Jeff Hunn is a Pender & Coward shareholder focusing his practice on community associations and civil litigation.  If you have questions regarding the new laws or if you want a more detailed analysis regarding their impact on your community association, please contact Jeff at (757) 490-6298 or jhunn@bagmakerblog.com.