This edition of our newsletter focuses on two topics: (1) new legislation concerning appointment of homeowner representatives for association purposes and (2) proper utilization of executive sessions by boards of directors. We decided the best way to approach the executive session topic is to provide a script for proper navigation of this important tool for boards of directors.
Both the Condominium Act and the Property Owners Association Act contain provisions which allow for the board of directors to utilize executive sessions (sometimes called “closed sessions”) to undertake discussion of designated sensitive topics. Voting on motions is not permitted in an executive session. The Virginia Common Interest Community Ombudsman and many others have noted that associations are not getting executive session right despite its longevity. To assist you in compliance with the statute the following “script” is offered.
Board Member #1 says: “I move to go into executive session for the purpose of (RECITE ONE OR AS MANY APPLICABLE CATEGORIES BELOW AS APPLY. IF WHAT YOU WANT TO DISCUSS IS NOT COVERED BY THE CATEGORIES BELOW THEN YOU SHOULD NOT BE IN EXECUTIVE SESSION AS THESE ARE THE ONLY TOPICS PERMITTED BY THE APPLICABLE STATUTES.)
__ to consider personnel matters;
__ to consult with legal counsel;
__ to discuss and consider contracts;
__ to discuss and consider probable or pending litigation; and
__ to discuss and consider matters involving violations of the declaration, bylaws
or rules and regulations for which a unit owner, his family members, tenants,
guests, or other invitees are responsible
__ to discuss and consider the personal liability of owners to the Association
Board Member #2 says: “I second the Motion.”
If a majority of the Board agrees then executive session begins and everyone not needed to be part of the session is required to leave.
WE RECOMMEND YOU STOP TAKING MINUTES AT THIS POINT TO
INSURE THE CONFIDENTIALITY OF THE DISCUSSION.
When discussions in executive session have concluded, the Chair of the meeting announces that executive session is completed and the open portion of the meeting has resumed. At this point it is appropriate for a motion to be made relative to the topic discussed in the executive session; however, no motion is required.
Your Minutes should look like this whenever the Board engages in an executive session:
Board Member #1 moved to go into executive session to (for example consult with legal counsel). The Motion was seconded by Board Member #2 and a majority agreed to proceed to executive session. At the conclusion of executive session, the Board resumed open session and [NO MOTION WAS MADE RELATIVE TO THE TOPIC DISCUSSED] OR [THE FOLLOWING MOTION WAS MADE RELATIVE TO THE TOPIC DISCUSSED: ______. The minutes would then describe what occurred after the motion was made.
Executive sessions are addressed in both the Virginia Condominium Act (Section 55.1-1949) and the Virginia Property Owners Association Act (Section 55.1-1816)
2022 STATUTE AMENDMENT REGARDING OWNER REPRESENTATIVES
We want to bring to your attention legislation which clarifies that associations must recognize persons who are designated in writing by a property owner of a home in an association as the owner’s authorized representative. A power of attorney is specifically not required for this purpose. The bill also in expanded the list of authorized persons to whom a seller or the seller’s authorized agent may provide a written request for the delivery of the association disclosure packet or resale certificate. These new provisions are found in sections 55.1-1823 (POA Act), 55.1-1962 (Condo Act) 55.1-1806 (regarding rental of lots), 55.1-1809 (regarding resale documents) and section 55.1-1973 (regarding rental of units).
Please let us know if you have questions concerning the content of this update. The CA Team stands ready to assist you in taking good care of your associations.
