Virginia General Assembly Adopts Emergency Legislation Allowing Virtual Board Meetings During the Current State of Emergency

UPDATED 4/27/20 - Virginia Governor signed the legislation.

Our Community Association Practice Group has been fielding many questions from concerned Boards of Directors regarding their ability to conduct association business during the current COVID-19 pandemic.  Currently, the Virginia Property Owners’ Association Act and the Virginia Condominium Act, require at least two directors to be physically present at a board meeting in order for the rest of the board to attend remotely by electronic means.  However, the General Assembly has adopted, and Governor Northam is expected to sign, emergency legislation removing the requirement that two directors be physically present to conduct association business during the emergency pandemic.

The Emergency Legislation

The emergency legislation passed by the General Assembly on Wednesday, April 22, 2020, overrides the current requirements in the Virginia Property Owners’ Association Act and Virginia Condominium Act that at least two board members be physically present in the same location in order to conduct a legal board meeting.  The legislation provides that as long as the governor has declared a state of emergency, a board can meet by electronic means without any board member or homeowner physically present at the meeting place, if the following conditions are satisfied:

(1) The emergency makes it “impracticable or unsafe” for the board to assemble in a single location; and

(2) The purpose of the board meeting is to “discuss or transact business that is statutorily required” or “necessary to continue the operation” of the association and the “discharge of its lawful purposes, duties and responsibilities.”

How Does this Affect Your Association?

In order to convene a “virtual” board meeting during the current state of emergency, your Board must also satisfy certain requirements concerning the notice of the meetings, members’ access to the meeting and the distribution of specific meeting minutes.  The board must do the following:

(1) Give notice to owners using the “best available method given the nature of the emergency,” which notice shall be given contemporaneously with the notice provided to members of the board; 

(2) Make arrangements for owners to have access to the meeting through electronic means including, “to the extent practicable,” videoconferencing technology.  If the means of communication allows, the board must provide owners with an opportunity to comment; and 

(3) Distribute meeting minutes to owners stating (a) the nature of the emergency, (b) the fact that the meeting was held by electronic communication means, and (c) the type of electronic communication means by which the meeting was held.

The relaxation of the statutory requirements will not last forever.  The emergency legislation applies only during a governor-declared state of emergency.  Once the state of emergency ends, your board must comply with the physical assembly requirements established by the Virginia Property Owners’ Association Act and the Virginia Condominium Act.

Jeff Hunn is a Pender & Coward shareholder focusing his practice on community association matters.