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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| SENATE BILL |
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| INTRODUCED BY RAFFERTY, FONTANA, ERICKSON, BAKER AND FARNESE, MARCH 22, 2011 |
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| REFERRED TO URBAN AFFAIRS AND HOUSING, MARCH 22, 2011 |
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| AN ACT |
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1 | Amending Title 68 (Real and Personal Property) of the |
2 | Pennsylvania Consolidated Statutes, further providing for |
3 | applicability of provisions relating to planned communities, |
4 | for meetings and for quorums of unit owners' associations of |
5 | planned communities, for proxies and for association records. |
6 | The General Assembly of the Commonwealth of Pennsylvania |
7 | hereby enacts as follows: |
8 | Section 1. Section 5102(b) of Title 68 of the Pennsylvania |
9 | Consolidated Statutes is amended and the section is amended by |
10 | adding a subsection to read: |
11 | § 5102. Applicability. |
12 | * * * |
13 | (b) [Retroactivity] General retroactivity.--Except as |
14 | provided in subsection (c), sections 5105, 5106, 5107, 5203 |
15 | (relating to construction and validity of declaration and |
16 | bylaws), 5204 (relating to description of units), 5218, 5219 |
17 | (relating to amendment of declaration), 5223 (relating to merger |
18 | or consolidation of planned community), 5302(a)(1) through (6) |
19 | and (11) through (15) (relating to power of unit owners' |
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1 | association), 5311 (relating to tort and contract liability), |
2 | 5315 (relating to lien for assessments), [5316 (relating to |
3 | association records),] 5407 (relating to resales of units) and |
4 | 5412 (relating to effect of violations on rights of action) and |
5 | section 5103 (relating to definitions), to the extent necessary |
6 | in construing any of those sections, apply to all planned |
7 | communities created in this Commonwealth before the effective |
8 | date of this subpart; but those sections apply only with respect |
9 | to events and circumstances occurring after the effective date |
10 | of this subpart and do not invalidate specific provisions |
11 | contained in existing provisions of the declaration, bylaws or |
12 | plats and plans of those planned communities. |
13 | * * * |
14 | (b.2) Legislative finding and retroactivity of specific |
15 | provisions.-- |
16 | (1) It is hereby determined and declared as a matter of |
17 | legislative finding that certain aspects of local governance |
18 | involving open meetings, open records and basic parliamentary |
19 | procedure relating to proxy voting and quorums are so vital |
20 | to the sound administration of planned communities that |
21 | retroactive application of these rules is within the police |
22 | powers of the Commonwealth. |
23 | (2) Notwithstanding any provision of law or any |
24 | declarations or bylaws to the contrary, sections 5308 |
25 | (relating to meetings), 5309 (relating to quorums), 5310(b.1) |
26 | (relating to voting; proxies) and 5316 (relating to |
27 | association records) apply to all planned communities created |
28 | in this Commonwealth before the effective date of this |
29 | subsection except planned communities under subsections (a) |
30 | (1), (c) and (e). |
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1 | * * * |
2 | Section 2. Section 5308 of Title 68 is amended to read: |
3 | § 5308. Meetings. |
4 | [The bylaws shall require that] |
5 | (a) Open meetings and notice.--Notwithstanding any |
6 | provisions of any declaration or bylaws to the contrary, |
7 | meetings of the association shall be held at least once each |
8 | year [and shall provide for special meetings.] and all meetings |
9 | of the association, executive board or any committee, commission |
10 | or other entity which is a subdivision of the executive board of |
11 | the association, except executive board meetings under |
12 | subsection (d), shall be open to unit owners. The bylaws shall |
13 | specify which of the association's officers, not less than ten |
14 | nor more than 60 days in advance of any meeting, except |
15 | executive board meetings under subsection (d) or emergency |
16 | meetings under subsection (e), shall cause notice to be hand |
17 | delivered or sent prepaid by United States mail to the mailing |
18 | address of each unit or to any other mailing address designated |
19 | in writing by the unit owner. The notice of any meeting [must] |
20 | shall state the time and place of the meeting and the items on |
21 | the agenda, including the general nature of any proposed |
22 | amendment to the declaration or bylaws; any budget or assessment |
23 | changes; and, where the declaration or bylaws require approval |
24 | of unit owners, any proposal to remove a director or officer. |
25 | All official action shall be taken at a meeting under this |
26 | subsection or an emergency meeting under subsection (e). |
27 | (b) Minutes.--Except during executive board meetings under |
28 | subsection (d), written minutes shall be kept of all association |
29 | meetings, including the time and date of the meeting, the number |
30 | of unit owners in attendance, the substance of all official |
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1 | actions taken at the meeting and a record of votes on official |
2 | action by individual executive board members or officers. Board- |
3 | approved minutes of any meeting, except executive board meetings |
4 | under subsection (d), shall be made reasonably available for |
5 | examination by any unit owner and authorized agent of any unit |
6 | owner no later than 45 days after a meeting. |
7 | (c) Recording devices and unit owner participation.-- |
8 | (1) A unit owner shall be: |
9 | (i) Authorized to use recording devices to record |
10 | the proceedings at any meeting except an executive board |
11 | meeting under subsection (d). |
12 | (ii) Provided at any meeting, except an executive |
13 | board meeting under subsection (d), with a reasonable |
14 | opportunity to comment on matters of concern, |
15 | deliberation or official action which are or may be under |
16 | consideration at that meeting. |
17 | (2) Nothing in this section shall be construed to |
18 | prevent an association from adopting bylaws governing the |
19 | reasonable use of recording devices. |
20 | (d) Executive board meetings.-- |
21 | (1) The executive board may exclude unit owners from an |
22 | executive board meeting. Executive board meetings shall only |
23 | be convened during an open meeting under subsection (a) or |
24 | (e) upon an affirmative vote of a majority of the members of |
25 | the executive board in attendance at the open meeting. The |
26 | reason for holding the executive board meeting shall be |
27 | announced at the open meeting prior to the executive board |
28 | meeting. Official action on discussions held at an executive |
29 | board meeting shall be taken at an open meeting, and no |
30 | executive board meeting shall be used as a subterfuge to |
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1 | defeat the purposes of subsection (a) or (e). An executive |
2 | board meeting may be held for one or more of the following |
3 | reasons: |
4 | (i) To discuss any matter involving the employment, |
5 | termination of employment, terms and conditions of |
6 | employment, evaluation of performance, promotion or |
7 | disciplining of any specific prospective employee or |
8 | current employee employed by the association, or former |
9 | employee, provided, however, that the individual |
10 | employees whose rights could be adversely affected may |
11 | request, in writing, that the matter or matters be |
12 | discussed at an open meeting. |
13 | (ii) To consider the purchase or lease of real |
14 | property up to the time an option to purchase or lease |
15 | such property is obtained or up to the time an agreement |
16 | to purchase or lease such property is obtained if the |
17 | agreement is obtained directly without an option. |
18 | (iii) To consult with the executive board's attorney |
19 | or other professional adviser regarding information or |
20 | strategy in connection with litigation or with issues on |
21 | which identifiable complaints are expected to be filed. |
22 | (iv) To review and discuss business which, if |
23 | conducted in public, would violate a lawful privilege or |
24 | lead to the disclosure of information or confidentiality |
25 | protected by law. |
26 | (2) Nothing in paragraph (1)(i) shall apply to any |
27 | meeting involving the appointment or selection of any person |
28 | to fill a vacancy on the executive board. |
29 | (e) Emergency meetings.--The executive board may call an |
30 | emergency meeting for the purpose of dealing with a real or |
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1 | potential emergency involving a clear and present danger to life |
2 | or property. An emergency meeting shall be open to unit owners |
3 | and shall be subject to the requirements of subsections (b) and |
4 | (c). The bylaws shall specify which member of the association's |
5 | executive board shall be responsible for providing notice of any |
6 | emergency meeting and shall further specify the means and |
7 | methods of providing such notice, including, but not limited to, |
8 | posting notice at either the main entrance to the planned |
9 | community or at a central location within the planned community |
10 | designated for such purposes. |
11 | (f) Rules of order.--The bylaws shall provide for rules of |
12 | order to govern meetings under subsections (a) and (e). The |
13 | rules may be based on Robert's Rules of Order or any other |
14 | established set of rules of order or parliamentary procedure. |
15 | (g) Filing of complaints.--A unit owner may file a complaint |
16 | with the Bureau of Consumer Protection in the Office of Attorney |
17 | General if an association either: |
18 | (1) fails to adopt bylaws as required by this section |
19 | within either 120 days after the termination of any period of |
20 | declarant control of the association or 120 days after the |
21 | effective date of this subsection, whichever is later; or |
22 | (2) violates any provision of this section. |
23 | (h) Penalties.-- |
24 | (1) Notwithstanding any provision of the declaration or |
25 | bylaws to the contrary, the unit owners, by a two-thirds vote |
26 | of all unit owners present and entitled to vote at any |
27 | meeting of the unit owners at which a quorum is present, may |
28 | impose a monetary penalty of not less than $50 against any |
29 | member of an executive board, committee or commission or |
30 | other entity which is a subdivision of the executive board |
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1 | who participates in a meeting with the intent and purpose of |
2 | violating this section. |
3 | (2) Official action taken at a meeting under subsection |
4 | (a) or (e) in violation of the requirements of this section |
5 | shall be null and void. |
6 | (i) Exemption.--An association shall be exempt from the |
7 | requirements of this section during any period of declarant |
8 | control of the association. |
9 | (j) Definitions.--As used in this section, the following |
10 | words and phrases shall have the meanings given to them in this |
11 | subsection: |
12 | "Meeting." A prearranged gathering held for the purpose of |
13 | deliberating association business or taking official action of: |
14 | (1) an association, which is attended or participated in |
15 | by a quorum of unit owners; |
16 | (2) an executive board, which is attended or |
17 | participated in by a quorum of the executive board; or |
18 | (3) a committee, commission or other entity which is a |
19 | subdivision of the executive board of the association which |
20 | is attended or participated in by a quorum of the committee, |
21 | commission or entity. |
22 | "Official action." Any of the following: |
23 | (1) The establishment of policy by an association. |
24 | (2) A decision on association business made by an |
25 | association. |
26 | (3) A vote taken by an association, executive board or a |
27 | committee, commission or other entity which is a subdivision |
28 | of the executive board of the association on a proposal, |
29 | resolution, rule, regulation or report. |
30 | Section 3. Sections 5309 and 5310 of Title 68 are amended by |
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1 | adding subsections to read: |
2 | § 5309. Quorums. |
3 | * * * |
4 | (c) Committees, commissions or other entities which are |
5 | subdivisions of the executive board.--Unless the bylaws specify |
6 | a larger percentage, a quorum is deemed present throughout any |
7 | meeting of a committee, commission or other entity which is a |
8 | subdivision of the executive board if at least 50% of the |
9 | designated members of the committee, commission or other entity |
10 | which is a subdivision of the executive board are present at the |
11 | beginning of the meeting. |
12 | § 5310. Voting; proxies. |
13 | * * * |
14 | (b.1) Executive board proxies.--No vote may be cast under a |
15 | proxy during a vote of the executive board. |
16 | * * * |
17 | Section 4. Section 5316(a) of Title 68 is amended and the |
18 | section is amended by adding subsections to read: |
19 | § 5316. Association records. |
20 | (a) [Financial] Maintenance of records.--The association |
21 | shall keep [financial records sufficiently detailed to enable |
22 | the association to comply with section 5407 (relating to resales |
23 | of units). All financial and other records shall be made |
24 | reasonably available for examination by any unit owner and |
25 | authorized agents.] records of its operation, administration and |
26 | finances that are sufficiently detailed to enable the |
27 | association to comply with section 5407 (relating to resales of |
28 | units). |
29 | (a.1) Inspection and copying.-- |
30 | (1) Books and records kept by or on behalf of an |
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1 | association shall be available for examination and copying by |
2 | a unit owner in good standing, or the unit owner's authorized |
3 | agent, to protect the unit owner's interest. This right of |
4 | examination and copying may be exercised only during |
5 | reasonable business hours or at a time and location mutually |
6 | convenient to the association and the unit owner. |
7 | (2) Books and records kept by or on behalf of an |
8 | association may be withheld from examination and copying |
9 | under paragraph (1) to the extent that they concern any of |
10 | the following: |
11 | (i) Personnel records. |
12 | (ii) An individual's medical records. |
13 | (iii) Records relating to business transactions that |
14 | are currently in negotiation. |
15 | (iv) Privileged communications with legal counsel. |
16 | (v) Complaints against a unit owner. |
17 | (vi) Records of executive board meetings under |
18 | section 5308(d) (relating to meetings). |
19 | (3) The association may impose and collect a charge that |
20 | represents the actual costs of materials and labor prior to |
21 | providing copies of any books and records under this |
22 | subsection. |
23 | * * * |
24 | (d) Penalties.-- |
25 | (1) The bylaws shall specify which of the association's |
26 | officers shall be responsible for the maintenance of records |
27 | under subsection (a) and the preparation of financial |
28 | statements under subsection (b). |
29 | (2) Any officer designated under paragraph (1) who fails |
30 | to maintain records or prepare financial statements as |
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1 | required by this section shall be subject to a monetary |
2 | penalty of not less than $50. Notwithstanding any provision |
3 | of the declaration or bylaws to the contrary, the unit |
4 | owners, by a two-thirds vote of all unit owners present and |
5 | entitled to vote at any meeting of the unit owners at which a |
6 | quorum is present, may impose the penalty provided by this |
7 | paragraph. |
8 | Section 5. This act shall take effect in 60 days. |
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