PRINTER'S NO. 1882
No. 1248 Session of 2004
INTRODUCED BY RAFFERTY, CORMAN, C. WILLIAMS, PIPPY, RHOADES,
LEMMOND AND O'PAKE, OCTOBER 18, 2004
REFERRED TO URBAN AFFAIRS AND HOUSING, OCTOBER 18, 2004
AN ACT
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'
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 (b.1) Legislative finding and retroactivity of specific
14 provisions.--
15 (1) It is hereby determined and declared as a matter of
16 legislative finding that certain aspects of local governance
17 involving open meetings, open records and basic parliamentary
18 procedure relating to proxy voting and quorums are so vital
19 to the sound administration of planned communities that
20 retroactive application of these rules is within the police
21 powers of the Commonwealth.
22 (2) Notwithstanding any provision of law or any
23 declarations or bylaws to the contrary, sections 5308
24 (relating to meetings), 5309 (relating to quorums), 5310(b.1)
25 (relating to voting; proxies) and 5316 (relating to
26 association records) apply to all planned communities created
27 in this Commonwealth before the effective date of this
28 subsection except planned communities under subsections
29 (a)(1), (c) and (e).
30 * * *
20040S1248B1882 - 2 -
1 Section 2. Section 5308 of Title 68 is amended to read:
2 § 5308. Meetings.
3 [The bylaws shall require that]
4 (a) Open meetings and notice.--Notwithstanding any
5 provisions of any declaration or bylaws to the contrary,
6 meetings of the association shall be held at least once each
7 year [and shall provide for special meetings.] and all meetings
8 of the association, executive board or any committee, commission
9 or other entity which is a subdivision of the executive board of
10 the association, except executive board meetings under
11 subsection (d), shall be open to unit owners. The bylaws shall
12 specify which of the association's officers, not less than ten
13 nor more than 60 days in advance of any meeting, except
14 executive board meetings under subsection (d) or emergency
15 meetings under subsection (e), shall cause notice to be hand
16 delivered or sent prepaid by United States mail to the mailing
17 address of each unit or to any other mailing address designated
18 in writing by the unit owner. The notice of any meeting [must]
19 shall state the time and place of the meeting and the items on
20 the agenda, including the general nature of any proposed
21 amendment to the declaration or bylaws; any budget or assessment
22 changes; and, where the declaration or bylaws require approval
23 of unit owners, any proposal to remove a director or officer.
24 All official action shall be taken at a meeting under this
25 subsection or an emergency meeting under subsection (e).
26 (b) Minutes.--Except during executive board meetings under
27 subsection (d), written minutes shall be kept of all association
28 meetings, including the time and date of the meeting, the number
29 of unit owners in attendance, the substance of all official
30 actions taken at the meeting and a record of votes on official
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1 action by individual executive board members or officers. Board-
2 approved minutes of any meeting, except executive board meetings
3 under subsection (d), shall be made reasonably available for
4 examination by any unit owner and authorized agent of any unit
5 owner no later than 45 days after a meeting.
6 (c) Recording devices and unit owner participation.--
7 (1) A unit owner shall be:
8 (i) Authorized to use recording devices to record
9 the proceedings at any meeting except an executive board
10 meeting under subsection (d).
11 (ii) Provided at any meeting, except an executive
12 board meeting under subsection (d), with a reasonable
13 opportunity to comment on matters of concern,
14 deliberation or official action which are or may be under
15 consideration at that meeting.
16 (2) Nothing in this section shall be construed to
17 prevent an association from adopting bylaws governing the
18 reasonable use of recording devices.
19 (d) Executive board meetings.--
20 (1) The executive board may exclude unit owners from an
21 executive board meeting. Executive board meetings shall only
22 be convened during an open meeting under subsections (a) or
23 (e) upon an affirmative vote of a majority of the members of
24 the executive board in attendance at the open meeting. The
25 reason for holding the executive board meeting shall be
26 announced at the open meeting prior to the executive board
27 meeting. Official action on discussions held at an executive
28 board meeting shall be taken at an open meeting and no
29 executive board meeting shall be used as a subterfuge to
30 defeat the purposes of subsection (a) or (e). An executive
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1 board meeting may be held for one or more of the following
2 reasons:
3 (i) To discuss any matter involving the employment,
4 termination of employment, terms and conditions of
5 employment, evaluation of performance, promotion or
6 disciplining of any specific prospective employee or
7 current employee employed by the association, or former
8 employee, provided, however, that the individual
9 employees whose rights could be adversely affected may
10 request, in writing, that the matter or matters be
11 discussed at an open meeting.
12 (ii) To consider the purchase or lease of real
13 property up to the time an option to purchase or lease
14 such property is obtained or up to the time an agreement
15 to purchase or lease such property is obtained if the
16 agreement is obtained directly without an option.
17 (iii) To consult with the executive board's attorney
18 or other professional adviser regarding information or
19 strategy in connection with litigation or with issues on
20 which identifiable complaints are expected to be filed.
21 (iv) To review and discuss business which, if
22 conducted in public, would violate a lawful privilege or
23 lead to the disclosure of information or confidentiality
24 protected by law.
25 (2) Nothing in paragraph (1)(i) shall apply to any
26 meeting involving the appointment or selection of any person
27 to fill a vacancy on the executive board.
28 (e) Emergency meetings.--The executive board may call an
29 emergency meeting for the purpose of dealing with a real or
30 potential emergency involving a clear and present danger to life
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1 or property. An emergency meeting shall be open to unit owners
2 and shall be subject to the requirements of subsections (b) and
3 (c). The bylaws shall specify which member of the association's
4 executive board shall be responsible for providing notice of any
5 emergency meeting and shall further specify the means and
6 methods of providing such notice, including, but not limited to,
7 posting notice at either the main entrance to the planned
8 community or at a central location within the planned community
9 designated for such purposes.
10 (f) Rules of order.--The bylaws shall provide for rules of
11 order to govern meetings under subsections (a) and (e). The
12 rules may be based on Robert's Rules of Order or any other
13 established set of rules of order or parliamentary procedure.
14 (g) Filing of complaints.--A unit owner may file a complaint
15 with the Bureau of Consumer Protection in the Office of Attorney
16 General if an association either:
17 (1) fails to adopt bylaws as required by this section
18 within either 120 days after the termination of any period of
19 declarant control of the association or 120 days after the
20 effective date of this subsection, whichever is later; or
21 (2) violates any provision of this section.
22 (h) Penalties.--
23 (1) Notwithstanding any provision of the declaration or
24 bylaws to the contrary, the unit owners, by a two-thirds vote
25 of all unit owners present and entitled to vote at any
26 meeting of the unit owners at which a quorum is present, may
27 impose a monetary penalty of not less than $50 against any
28 member of an executive board, committee or commission or
29 other entity which is a subdivision of the executive board
30 who participates in a meeting with the intent and purpose of
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1 violating this section.
2 (2) Official action taken at a meeting under subsections
3 (a) or (e) in violation of the requirements of this section
4 shall be null and void.
5 (i) Exemption.--An association shall be exempt from the
6 requirements of this section during any period of declarant
7 control of the association.
8 (j) Definitions.--As used in this section, the following
9 words and phrases shall have the meanings given to them in this
10 subsection:
11 "Meeting." A prearranged gathering held for the purpose of
12 deliberating association business or taking official action of:
13 (1) an association, which is attended or participated in
14 by a quorum of unit owners;
15 (2) an executive board, which is attended or
16 participated in by a quorum of the executive board; or
17 (3) a committee, commission or other entity which is a
18 subdivision of the executive board of the association which
19 is attended or participated in by a quorum of the committee,
20 commission or entity.
21 "Official action." Any of the following:
22 (1) The establishment of policy by an association.
23 (2) A decision on association business made by an
24 association.
25 (3) A vote taken by an association, executive board or a
26 committee, commission or other entity which is a subdivision
27 of the executive board of the association on a proposal,
28 resolution, rule, regulation or report.
29 Section 3. Sections 5309 and 5310 of Title 68 are amended by
30 adding subsections to read:
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1 § 5309. Quorums.
2 * * *
3 (c) Committees, commissions or other entities which are
4 subdivisions of the executive board.--Unless the bylaws specify
5 a larger percentage, a quorum is deemed present throughout any
6 meeting of a committee, commission or other entity which is a
7 subdivision of the executive board if at least 50% of the
8 designated members of the committee, commission or other entity
9 which is a subdivision of the executive board are present at the
10 beginning of the meeting.
11 § 5310. Voting; proxies.
12 * * *
13 (b.1) Executive board proxies.--No vote may be cast pursuant
14 to a proxy during a vote of the executive board.
15 * * *
16 Section 4. Section 5316(a) of Title 68 is amended and the
17 section is amended by adding subsections to read:
18 § 5316. Association records.
19 (a) [Financial] Maintenance of records.--The association
20 shall keep [financial records sufficiently detailed to enable
21 the association to comply with section 5407 (relating to resales
22 of units). All financial and other records shall be made
23 reasonably available for examination by any unit owner and
24 authorized agents.] records of its operation, administration and
25 finances that are sufficiently detailed to enable the
26 association to comply with section 5407 (relating to resales of
27 units).
28 (a.1) Inspection and copying.--
29 (1) Books and records kept by or on behalf of an
30 association shall be available for examination and copying by
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1 a unit owner in good standing, or the unit owner's authorized
2 agent, to protect the unit owner's interest. This right of
3 examination and copying may be exercised only during
4 reasonable business hours or at a time and location mutually
5 convenient to the association and the unit owner.
6 (2) Books and records kept by or on behalf of an
7 association may be withheld from examination and copying
8 under paragraph (1) to the extent they concern any of the
9 following:
10 (i) Personnel records.
11 (ii) An individual's medical records.
12 (iii) Records relating to business transactions that
13 are currently in negotiation.
14 (iv) Privileged communications with legal counsel.
15 (v) Complaints against a unit owner.
16 (vi) Records of executive board meetings under
17 section 5308(d) (relating to meetings).
18 (3) The association may impose and collect a charge that
19 represents the actual costs of materials and labor prior to
20 providing copies of any books and records under this
21 subsection.
22 * * *
23 (d) Penalties.--
24 (1) The bylaws shall specify which of the association's
25 officers shall be responsible for the maintenance of records
26 under subsection (a) and the preparation of financial
27 statements under subsection (b).
28 (2) Any officer designated pursuant to paragraph (1) who
29 fails to maintain records or prepare financial statements as
30 required by this section shall be subject to a monetary
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1 penalty of not less than $50. Notwithstanding any provision
2 of the declaration or bylaws to the contrary, the unit
3 owners, by a two-thirds votes of all unit owners present and
4 entitled to vote at any meeting of the unit owners at which a
5 quorum is present, may impose the penalty provided by this
6 paragraph.
7 Section 5. This act shall take effect in 60 days.
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