March 2, 2017 (Reprinted from Vandeventer Black’s Community Association Newsletter)
This past Saturday, February 25, 2017, the Virginia General Assembly adjourned sine die and will not reconvene again until the “veto” session is scheduled for April 5, 2017.
In all, 2,959 bills and resolutions were introduced during the 2017 session and 242 bills were carried over from the 2016 session. Of the bills considered, 1,773 were passed by both the Senate and the House of Delegates and forwarded to the Governor for signature. A total of 1,428 bills failed. The Governor has already vetoed seven bills and more may still veto more over the next few weeks.
Although some would classify this year’s session, a session immediately following to a Presidential election and immediately prior to a statewide election, as “uneventful,” Vandeventer Black attorneys tracked almost 80 bills affecting community associations during the 2017 session.
Of those 80 bills, we more closely monitored 28 bills directly affecting community associations. But, all in all, there are few significant changes affecting Virginia community associations, as described below:
Senate Bill 1578, introduced by Senator Thomas “Tommy” Norment, authorizes a locality to adopt an ordinance requiring the registration of persons offering property for short-term rental. Senate Bill 1578 defines “short-term rental” as the provision of a room or space suitable for sleeping or lodging for less than 30 consecutive days.
Senate Bill 1578 also amends the Alcoholic Beverage Control Act to clarify that certain property rented on a short-term basis is considered a bed and breakfast establishment for purposes of ABC licensing and that the exception from ABC licensing for serving alcoholic beverages to guests in a residence does not apply if the guest is a short-term lessee of the residence.
Approved amendments to Senate Bill 1578 confirm that nothing in the bill should be construed to supersede or limit private contracts, including recorded governing documents or condominium instruments.
With the adoption of Senate Bill 1578, the authority to offer a lot or unit for rent on a short-term basis remains dependent on the locality and the specific provisions of an association governing documents or condominium instruments.
For more information about short-term rentals in community associations, refer to Short Term Rentals: A Practical Guide, available here.
Amendments – Property Owners’ Associations
House Bill 1554, introduced by Delegate David Bulova, amends the Virginia Property Owners’ Association Act provisions related to amendment to address concerns raised by the Virginia Supreme Court decision in Tvardek v. Powhatan Village Homeowners’ Association, clarifying the Act provisions apply only when a declaration is silent on amendment.
House Bill 1554, although it passed unanimously out of the House of Delegates, was met with significant opposition on the Senate floor. Ultimately, the bill passed the Senate 23-17 in a close vote and, unless vetoed or amended by the Governor, becomes effective July 1, 2017.
Several similar bills (House Bills 2045 and 2274 and Senate Bills 1231 and 1255) were introduced providing that except as expressly authorized in governing documents or condominium instruments, no association may:
(1) require a specific sign provided by the association (at or a fee or for free), or
(2) cause a violation of the Virginia Real Estate Board regulations.
The legislation also includes authority for associations to regulate signs on common area and address specific issues related to real estate signs through the adoption of rules.
Association Disclosure Packet – Required One-Page Form
Delegate Robert Orrock introduced House Bill 1475 that requires the Common Interest Community Board to include in its current one-page form that accompanies association disclosure packets that are required to be provided to all prospective purchasers of lots located within a development that is subject to the Virginia Property Owners’ Association Act that the purchase contract for a lot within an association 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 law.
Dam Safety – State Funding
Delegate Mark Cole introduced House Bill 1562 allowing state funds to be dispersed in the form of grants to localities and private entities (which may include community associations) that own dams to protect public safety and welfare. The grants can be used for the design, repair, and the safety modifications of dams identified in safety reports.
A significant number of bills affecting community associations failed – several of these failed bills are likely to be reintroduced, in some form, in the 2018 Session. Failed bills include:
- Home-Based Businesses & Child Care. Senator Chap Petersen introduced Senate Bill 1096, legislation similar to a bill he introduced in 2016. Senate Bill 1096 provided that a lot owner who is a licensed child care provider (licensure is generally triggered when five or more children, in addition to those children who live in the home, are cared for) operating within his personal residence pursuant to state law and in compliance with local ordinances shall be considered an “accessory residential use” and may not be prohibited by a property owners’ association unless child day cares are specifically prohibited by the declaration.
Had Senate Bill 1096 passed, property owners’ associations that restrict home businesses based on a limitation that lots be used “for residential purposes only,” would no longer be permitted to restrict licensed child care providers. And, communities that prohibit “commercial use” could also no longer restrict licensed child care provider.
As the law stands currently, it is generally agreed that those child care providers with 4 or less children (in addition to those children that live in the home) may be considered an “accessory residential use” (depending on the locality and document provisions) and are typically permitted (unless the recorded documents address day cares specifically).
- Resale Fees for Self-Managed Property Owners’ Associations. Delegate Vivian Watts introduced House Bill 2376, providing that a property owners’ association that is not professionally managed may act as a professionally managed association only upon complying with specific conditions set out in the bill. House Bill 2376 failed in subcommittee, but has been referred to the Virginia Housing Commission for study.
- Fair Housing: Gender and Sexual Orientation. Senate Bill 822 was introduced by Senator Wexton that would have added discrimination based on an individual’s sexual orientation or gender identity as an unlawful housing practice under the Virginia Fair Housing Act.
- Service of Process. Senator Wexton also introduced Senate Bill 823, that would have required an employee or agent of a common interest community with restricting access (i.e., a gate or key-controlled access doors) grant entry to a person attempting to serve process on a party who resides in, occupies, or is known to be present in the community.
- Corporate Reinstatement. Proposed changes to Section 13.1-916 of the Virginia Nonstock Corporation Act were proposed by Delegate Albo (House Bill 1527) that would have allowed for reinstatement of a corporation’s status, regardless of the length of time that has passed since the corporate status was terminated.
- Written Consent to Board Decisions. Delegate David Bulova introduced House Bill 1553 related to the use of unanimous written consent by the boards of directors of property owners’ associations. House Bill 1553 would have amended Section 55-510.1 of the Property Owners’ Association Act adding additional requirements for the use of written consents by boards of directors of property owners’ associations (not condominium unit owners’ associations).
- Declaration Cover Sheets. Delegate David Bulova introduced House Bill 2307 that would have required the cover sheet for a declaration creating a development that is subject to the Property Owners’ Association Act to contain an acknowledgment of the review of best practices for the contents of declarations published by the Common Interest Community Board.
- Group homes. Senator Tommy Norment introduced Senate Bill 1373 related to group homes that would have provided that any entity intending to locate a public or private detention home, group home, or other residential care facility in a locality shall give the chief administrative officer of that locality and the president of any home owner’s association for the neighborhood in which such public or private detention home, group home, or other residential care facility is to be located at least 90 days’ written notice prior to the issuance of the license.
- Declarant Control of Property Owners’ Associations. Senate Bill 1401 was introduced by Senator Siobhan Dunnavant that would have required, unless the declaration expressly provides otherwise, that the membership of the board of directors of the association include lot owners other than the declarant until the transfer of the common area to the association by the declarant.
As we continue to monitor the vetoes by the Governor and the reconvened “veto” session, Vandeventer Black LLP will continue to issue legislative updates by e-mail, through Twitter (@DMCaseyAtty and @TheMossReport) and on LinkedIn.
*Jeremy Moss is an attorney with Vandeventer Black LLP, Chair of the Virginia Legislative Action Committee of Community Associations Institute, a fellow of the College of Community Association Lawyers, Secretary/Treasurer of the Virginia Bar Association Real Estate Section Council, and Chair of the Common Interest Community Committee of the Virginia State Bar Real Property Section.
The contents of this article are intended to be for information purposes only and does not constitute legal advice. This article is intended to highlight certain legislation affecting common interest communities and cannot, therefore, be considered a full compendium on all legislation or the impact of legislation on particular persons or entities. None of the information set forth in this article necessarily reflects the opinions of Vandeventer Black LLP, or of any of its staff members or attorneys.
sine die and will not reconvene again until the “veto” session scheduled for April 5, 2017. In all, 2,959 bills and resolutions were introduced during the 2017 session and 242 bills were carried over from the 2016 session. Of the bills considered, 1,773 were passed by both the Senate and the House of Delegates and forwarded to the Governor for signature.