Bill Text: PA SB745 | 2009-2010 | Regular Session | Introduced

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Bill Title: Further providing for applicability of provisions relating to planned communities, for meetings and for quorums of unit owners' associations of planned communities, for proxies and for association records.

Spectrum: Bipartisan Bill

Status: (Introduced - Dead) 2009-04-03 - Referred to URBAN AFFAIRS AND HOUSING [SB745 Detail]

Download: Pennsylvania-2009-SB745-Introduced.html

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PRINTER'S NO. 840
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No. 745 Session of2009
INTRODUCED BY RAFFERTY AND FERLO, APRIL 3, 2009
REFERRED TO URBAN AFFAIRS AND HOUSING, APRIL 3, 2009
AN ACT
Amending Title 68 (Real and Personal Property) of the
Pennsylvania Consolidated Statutes, further providing for
applicability of provisions relating to planned communities,
for meetings and for quorums of unit owners' associations of
planned communities, for proxies and for association records.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 5102(b) of Title 68 of the Pennsylvania
Consolidated Statutes is amended and the section is amended by
adding a subsection to read:
§ 5102. Applicability.
* * *
(b) [Retroactivity] General retroactivity.--Except as
provided in subsection (c), sections 5105, 5106, 5107, 5203
(relating to construction and validity of declaration and
bylaws), 5204 (relating to description of units), 5218, 5219
(relating to amendment of declaration), 5223 (relating to merger
or consolidation of planned community), 5302(a)(1) through (6)
and (11) through (15) (relating to power of unit owners'
association), 5311 (relating to tort and contract liability),
5315 (relating to lien for assessments), [5316 (relating to
association records),] 5407 (relating to resales of units) and
5412 (relating to effect of violations on rights of action) and
section 5103 (relating to definitions), to the extent necessary
in construing any of those sections, apply to all planned
communities created in this Commonwealth before the effective
date of this subpart; but those sections apply only with respect
to events and circumstances occurring after the effective date
of this subpart and do not invalidate specific provisions
contained in existing provisions of the declaration, bylaws or
plats and plans of those planned communities.
* * *
(b.2) Legislative finding and retroactivity of specific
provisions.--
(1) It is hereby determined and declared as a matter of
legislative finding that certain aspects of local governance
involving open meetings, open records and basic parliamentary
procedure relating to proxy voting and quorums are so vital
to the sound administration of planned communities that
retroactive application of these rules is within the police
powers of the Commonwealth.
(2) Notwithstanding any provision of law or any
declarations or bylaws to the contrary, sections 5308
(relating to meetings), 5309 (relating to quorums), 5310(b.1)
(relating to voting; proxies) and 5316 (relating to
association records) apply to all planned communities created
in this Commonwealth before the effective date of this
subsection except planned communities under subsections (a)
(1), (c) and (e).
* * *
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Section 2. Section 5308 of Title 68 is amended to read:
§ 5308. Meetings.
[The bylaws shall require that]
(a) Open meetings and notice.--Notwithstanding any
provisions of any declaration or bylaws to the contrary,
meetings of the association shall be held at least once each
year [and shall provide for special meetings.] and all meetings
of the association, executive board or any committee, commission
or other entity which is a subdivision of the executive board of
the association, except executive board meetings under
subsection (d), shall be open to unit owners. The bylaws shall
specify which of the association's officers, not less than ten
nor more than 60 days in advance of any meeting, except
executive board meetings under subsection (d) or emergency
meetings under subsection (e), shall cause notice to be hand
delivered or sent prepaid by United States mail to the mailing
address of each unit or to any other mailing address designated
in writing by the unit owner. The notice of any meeting [must]
shall state the time and place of the meeting and the items on
the agenda, including the general nature of any proposed
amendment to the declaration or bylaws; any budget or assessment
changes; and, where the declaration or bylaws require approval
of unit owners, any proposal to remove a director or officer.
All official action shall be taken at a meeting under this
subsection or an emergency meeting under subsection (e).
(b) Minutes.--Except during executive board meetings under
subsection (d), written minutes shall be kept of all association
meetings, including the time and date of the meeting, the number
of unit owners in attendance, the substance of all official
actions taken at the meeting and a record of votes on official
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action by individual executive board members or officers. Board-
approved minutes of any meeting, except executive board meetings
under subsection (d), shall be made reasonably available for
examination by any unit owner and authorized agent of any unit
owner no later than 45 days after a meeting.
(c) Recording devices and unit owner participation.--
(1) A unit owner shall be:
(i) Authorized to use recording devices to record
the proceedings at any meeting except an executive board
meeting under subsection (d).
(ii) Provided at any meeting, except an executive
board meeting under subsection (d), with a reasonable
opportunity to comment on matters of concern,
deliberation or official action which are or may be under
consideration at that meeting.
(2) Nothing in this section shall be construed to
prevent an association from adopting bylaws governing the
reasonable use of recording devices.
(d) Executive board meetings.--
(1) The executive board may exclude unit owners from an
executive board meeting. Executive board meetings shall only
be convened during an open meeting under subsection (a) or
(e) upon an affirmative vote of a majority of the members of
the executive board in attendance at the open meeting. The
reason for holding the executive board meeting shall be
announced at the open meeting prior to the executive board
meeting. Official action on discussions held at an executive
board meeting shall be taken at an open meeting, and no
executive board meeting shall be used as a subterfuge to
defeat the purposes of subsection (a) or (e). An executive
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board meeting may be held for one or more of the following
reasons:
(i) To discuss any matter involving the employment,
termination of employment, terms and conditions of
employment, evaluation of performance, promotion or
disciplining of any specific prospective employee or
current employee employed by the association, or former
employee, provided, however, that the individual
employees whose rights could be adversely affected may
request, in writing, that the matter or matters be
discussed at an open meeting.
(ii) To consider the purchase or lease of real
property up to the time an option to purchase or lease
such property is obtained or up to the time an agreement
to purchase or lease such property is obtained if the
agreement is obtained directly without an option.
(iii) To consult with the executive board's attorney
or other professional adviser regarding information or
strategy in connection with litigation or with issues on
which identifiable complaints are expected to be filed.
(iv) To review and discuss business which, if
conducted in public, would violate a lawful privilege or
lead to the disclosure of information or confidentiality
protected by law.
(2) Nothing in paragraph (1)(i) shall apply to any
meeting involving the appointment or selection of any person
to fill a vacancy on the executive board.
(e) Emergency meetings.--The executive board may call an
emergency meeting for the purpose of dealing with a real or
potential emergency involving a clear and present danger to life
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or property. An emergency meeting shall be open to unit owners
and shall be subject to the requirements of subsections (b) and
(c). The bylaws shall specify which member of the association's
executive board shall be responsible for providing notice of any
emergency meeting and shall further specify the means and
methods of providing such notice, including, but not limited to,
posting notice at either the main entrance to the planned
community or at a central location within the planned community
designated for such purposes.
(f) Rules of order.--The bylaws shall provide for rules of
order to govern meetings under subsections (a) and (e). The
rules may be based on Robert's Rules of Order or any other
established set of rules of order or parliamentary procedure.
(g) Filing of complaints.--A unit owner may file a complaint
with the Bureau of Consumer Protection in the Office of Attorney
General if an association either:
(1) fails to adopt bylaws as required by this section
within either 120 days after the termination of any period of
declarant control of the association or 120 days after the
effective date of this subsection, whichever is later; or
(2) violates any provision of this section.
(h) Penalties.--
(1) Notwithstanding any provision of the declaration or
bylaws to the contrary, the unit owners, by a two-thirds vote
of all unit owners present and entitled to vote at any
meeting of the unit owners at which a quorum is present, may
impose a monetary penalty of not less than $50 against any
member of an executive board, committee or commission or
other entity which is a subdivision of the executive board
who participates in a meeting with the intent and purpose of
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violating this section.
(2) Official action taken at a meeting under subsection
(a) or (e) in violation of the requirements of this section
shall be null and void.
(i) Exemption.--An association shall be exempt from the
requirements of this section during any period of declarant
control of the association.
(j) Definitions.--As used in this section, the following
words and phrases shall have the meanings given to them in this
subsection:
"Meeting." A prearranged gathering held for the purpose of
deliberating association business or taking official action of:
(1) an association, which is attended or participated in
by a quorum of unit owners;
(2) an executive board, which is attended or
participated in by a quorum of the executive board; or
(3) a committee, commission or other entity which is a
subdivision of the executive board of the association which
is attended or participated in by a quorum of the committee,
commission or entity.
"Official action." Any of the following:
(1) The establishment of policy by an association.
(2) A decision on association business made by an
association.
(3) A vote taken by an association, executive board or a
committee, commission or other entity which is a subdivision
of the executive board of the association on a proposal,
resolution, rule, regulation or report.
Section 3. Sections 5309 and 5310 of Title 68 are amended by
adding subsections to read:
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§ 5309. Quorums.
* * *
(c) Committees, commissions or other entities which are
subdivisions of the executive board.--Unless the bylaws specify
a larger percentage, a quorum is deemed present throughout any
meeting of a committee, commission or other entity which is a
subdivision of the executive board if at least 50% of the
designated members of the committee, commission or other entity
which is a subdivision of the executive board are present at the
beginning of the meeting.
§ 5310. Voting; proxies.
* * *
(b.1) Executive board proxies.--No vote may be cast under a
proxy during a vote of the executive board.
* * *
Section 4. Section 5316(a) of Title 68 is amended and the
section is amended by adding subsections to read:
§ 5316. Association records.
(a) [Financial] Maintenance of records.--The association
shall keep [financial records sufficiently detailed to enable
the association to comply with section 5407 (relating to resales
of units). All financial and other records shall be made
reasonably available for examination by any unit owner and
authorized agents.] records of its operation, administration and
finances that are sufficiently detailed to enable the
association to comply with section 5407 (relating to resales of
units).
(a.1) Inspection and copying.--
(1) Books and records kept by or on behalf of an
association shall be available for examination and copying by
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a unit owner in good standing, or the unit owner's authorized
agent, to protect the unit owner's interest. This right of
examination and copying may be exercised only during
reasonable business hours or at a time and location mutually
convenient to the association and the unit owner.
(2) Books and records kept by or on behalf of an
association may be withheld from examination and copying
under paragraph (1) to the extent that they concern any of
the following:
(i) Personnel records.
(ii) An individual's medical records.
(iii) Records relating to business transactions that
are currently in negotiation.
(iv) Privileged communications with legal counsel.
(v) Complaints against a unit owner.
(vi) Records of executive board meetings under
section 5308(d) (relating to meetings).
(3) The association may impose and collect a charge that
represents the actual costs of materials and labor prior to
providing copies of any books and records under this
subsection.
* * *
(d) Penalties.--
(1) The bylaws shall specify which of the association's
officers shall be responsible for the maintenance of records
under subsection (a) and the preparation of financial
statements under subsection (b).
(2) Any officer designated under paragraph (1) who fails
to maintain records or prepare financial statements as
required by this section shall be subject to a monetary
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penalty of not less than $50. Notwithstanding any provision
of the declaration or bylaws to the contrary, the unit
owners, by a two-thirds vote of all unit owners present and
entitled to vote at any meeting of the unit owners at which a
quorum is present, may impose the penalty provided by this
paragraph.
Section 5. This act shall take effect in 60 days.
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