Dornish Law Offices, PC Dornish Law Offices, PC2024-03-06T18:33:47Zhttps://www.dornish.net/feed/atom/WordPress/wp-content/uploads/sites/1503543/2020/02/cropped-fav-icon-32x32.pngby Bradley Dornishhttps://www.dornish.net/?p=493172023-12-19T21:53:49Z2023-12-19T12:08:39ZHOAs in Pennsylvania must consider when drafting bylaws.
Tailoring bylaws to community needs
Every residential community is unique, with its own set of values, preferences and challenges. Therefore, bylaws should reflect the distinct characteristics of the community and cater to its needs. As such, before drafting, HOAs should engage with residents through surveys or meetings to understand their concerns and preferences. This information can then be integrated into the bylaws to create a comprehensive framework that helps promote harmony and community cohesion.
Enhancing clarity and precision
The effectiveness of bylaws depends on their clarity and precision. Vague or ambiguous language can lead to confusion, disputes and even legal challenges. A well-drafted bylaw should leave no room for interpretation, helping to ensure that everyone in the community understands their rights and responsibilities.
Technical terms or industry-specific jargon should be defined within the bylaws. This can help to prevent any misunderstanding that may arise due to differing interpretations of specific terms. Moreover, an HOA can establish a fair and transparent enforcement process by clearly outlining the consequences of violating the bylaws. Residents need to know what to expect if they breach the rules, whether it's fines, warnings or other penalties.
Establishing communication channels
HOAs should establish effective communication channels to inform residents about updates, changes and community matters. This can include regular newsletters, community meetings and a dedicated online platform. By fostering open dialogue, residents may feel more engaged and invested in the community's success. When drafting bylaws, consider including provisions that outline the methods and frequency of communication with residents.
Drafting bylaws for an HOA is a task that requires a combination of legal guidance, community engagement and effective communication. By understanding the legal framework, customizing bylaws to community needs and improving transparency, HOAs can create a solid foundation for a thriving residential community. HOAs which already have bylaws should have those bylaws reviewed periodically to make sure they meet the standards above and comply with changes in Pennsylvania law, like Act 17 which mandated mediation provisions for the bylaws of new HOAs and recommended them for existing HOAs. Often, with the opinion of counsel that changes are necessary to cure ambiguity or comply with PA law, the process for amendment is simple.]]>by nathanmorganhttps://www.dornish.net/?p=493692024-03-06T18:33:47Z2023-12-19T12:01:21ZCo-Authored By: Beth Fishman, Esq. and Nathan Morgan
On January 1, 2021, Congress enacted a new law called the Corporate Transparency Act (CTA or the Act). The main purpose of the CTA is to prevent United States’ business entities from committing monetary crimes such as money laundering, which is the transfer of illegally obtained money via foreign bank accounts or even through legitimate businesses. Money launderers can often conceal their identities behind these bank accounts or businesses.
To curb such illicit activities, the CTA imposes various reporting requirements on certain businesses called “Reporting Companies” (also called “Domestic Reporting Companies”), whom will be required to submit a report to the Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN). The Act’s reporting requirements take effect on January 1, 2024.
What are “Reporting Companies?”
The Act classifies any corporation, limited liability company (LLC), limited partnership (LP), or other similar entity formed with the Secretary of State and that conducts business solely in the United States as a Reporting Company. In Pennsylvania, this would include filings for registered Fictitious Names.
Exempt Entities
The CTA contains provisions that exempt certain businesses from needing to report information to FinCEN.
Entities already required to file reports with the Securities Exchange Commission (SEC), such as investment advisors, security brokers, insurance companies, state-licensed insurance producers, among others, do not qualify as a Reporting Company and are exempt from the requirements of the Act.
The Act exempts what it calls “Large Operating Companies,” which it defines as companies whom:
Employ over twenty (20) full-time employees in the United States;
Operate through a physical, domestic office; and
Have record of a federal income tax or an information return showing that the entity has over $5 million in gross receipts and/or sales (These specific records are found on IRS Form 1120 or other applicable IRS forms and must be from the previous year).
The Act also exempts:
Pooled investments;
Entities that are owned by otherwise exempt businesses; and
Dormant entities, meaning those that have had no client-initiated activity within 180 days.
CTA Requirements for Reporting Companies
All Reporting Companies are required to file what, under the Act, is identified as “Beneficial Ownership Information” (BOI) with FinCEN. However, there is a specific distinction in what BOI is required of Reporting Companies formed prior to January 1, 2024 (the CTA’s effective date) versus for those formed afterward. Namely, any pre-CTA entity must share information regarding their “Beneficial Owners” and other key entity details by no later than January 1, 2025. Post-CTA entities must also include details regarding their “Company Applicants” (more on “Company Applicants” later in this article).
Who are “Beneficial Owners?”
The Act deems anyone who either, directly, or indirectly, exercises “substantial control” over their Reporting Company or owns or controls at least 25% of its ownership interest as a “Beneficial Owner.”
Those who exercise “substantial control” must:
Serve as senior officers;
Have authority within an entity to appoint or remove at least 50% of its senior officers or board of directors; and
Have significant or total authority concerning important entity-related decisions.
Business decisions that Beneficial Owners make include, but are not limited to:
Exercising control over the nature, scope, and specifics of business asset transfers, including sales, leases, and mortgages;
Business reorganization, dissolution, and/or merging decisions;
Oversight of major business expenditures, investments, equity issuances, debt accrual, and operating budgets;
Selecting or terminating business ventures or business lines;
Determining details of senior officer compensatory and/or incentive programs;
The entry, termination, fulfillment, and/or nonfulfillment into/of significant business contracts; and/or
Beneficial Ownership Exemptions
Those who are not considered Beneficial Owners under the Act:
Minor children;
Nominees, intermediaries, custodians, or agents merely associated with an entity;
Employees acting solely as employees;
Individuals whose sole interest in a Reporting Company is through future inheritance; and
Reporting Company creditors.
What Information does FinCEN need for Beneficial Owners?
For each Beneficial Owner, Reporting Companies must provide:
Full legal names;
Dates of birth;
Complete, current addresses (meaning full residential addresses); and
Unique identifying numbers.
A Beneficial Owner’s unique identifying number can be found within any of the following document types:
An active, valid passport issued by the United States government;
An active, valid identification document issued by a state or local government;
An active, valid driver’s license;
An active, valid passport issued by a foreign government (for individuals who do not possess the aforementioned three document types); or
A verifiable image of an active, valid document containing an individual’s unique identifying number.
BOI Reports: Other Mandatory Information
When Reporting Companies initially relay information to FinCEN, they must also share:
The full legal name of their entity;
Any other names the company goes by, including under which it trades or “does business as;”
A complete and current entity address;
The full and accurate name of the jurisdiction of the entity’s formation; and
The entity’s IRS Taxpayer Identification Number (TIN) (Documentation containing the entity’s TIN will also show its Employer Identification Number (EIN), which FinCEN needs too).
Additional Requirement for Reporting Companies Created After January 1, 2024: “Company Applicants”
Reporting Companies formed following January 1, 2024, must also share information about their “Company Applicants.” The Act defines Company Applicants as those who have filed the forming documents for their Reporting Companies. In cases where there is more than one document filer, the law considers those who are the primary filers as Company Applicants.
BOI reporting requirements for Company Applicants are identical to that of Beneficial Owners (legal names, birth dates, addresses, and unique identifying number documentation; see, What Information does FinCEN need for Beneficial Owners?).
When a Reporting Company must Change their Report:
If any changes are made to any aspect of the initial BOI report shared with FinCEN, then a Reporting Company must file what the Act calls an “Updated Report” within thirty (30) days. For an Updated Report, entities can simply reuse their initial reports and adjust the information accordingly. If there are any name, date of birth, address, or unique identifying number changes to an entity, then Reporting Companies must share an Updated Report containing images of any correspondingly altered documentation within thirty (30) days.
In the unfortunate event that a Beneficial Owner passes away, the strict thirty (30) day rule does not apply. Instead, an Updated Report must be filed within thirty (30) days following the settlement of the Beneficial Owner’s estate. In other words, once the deceased individual’s financial affairs are fully resolved, an entity will then have thirty (30) days to file for the changes.
Entity Status Changes
If an entity is currently exempt from the CTA’s definition of a Reporting Company, but its status changes to fit the law’s definition, then said companies must file a complete BOI report with FinCEN within thirty (30) days of the status change.
If an entity’s status changes from a Reporting Company to an exempt status, these entities must file an Updated Report with FinCEN containing proof of their newly exempt status. Once an entity does this, they no longer need to file any reports with FinCEN, although they may choose to do so if desired.
Updated Reports vs. Corrected Reports
The above instances requiring Updated Reports are distinct from instances where “Corrected Reports” are needed. Corrected Reports are required if FinCEN or a filing entity discovers that any BOI was incidentally inaccurate; a new report must be filed with corrected information. As with Updated Reports, entities can simply reuse the documents from their initial filings, so long as they adjust the inaccurate portions.
Lastly, if there are any alterations to Company Applicant information, Reporting Companies are not required to file for these specific changes (as mentioned, this pertains only to post-CTA businesses).
Penalties for Noncompliance
Reporting Companies that willfully fail to share complete or updated BOI or deliberately relay false information with FinCEN could be subject to $500 in civil fines per day. Criminal penalties of up to $10,000 in criminal fines or two (2) years imprisonment (or in the most extreme noncompliance cases, both fines and imprisonment) may also be imposed. Penalties may also be imposed for any unauthorized information disclosures by an entity.
What can Dornish do for You?
Dornish Law Offices will be available to assist you in all matters necessary to comply with this new regulation. To reiterate, any Reporting Company formed prior to January 1, 2024 (the enactment date of the CTA) must file their BOI report by January 1, 2025. We suggest that you contact our office no later than January 1, 2024, in order to begin this filing process.]]>On Behalf of Dornish Law Offices, PChttps://www.dornish.net/?p=491242023-12-19T11:50:29Z2023-12-19T11:50:29ZWhat is a succession plan?
An estate plan gives a testator peace of mind by directing the distribution of their assets after their death and providing certain support for loved ones. A will or trust is often the tool someone uses to transfer ownership of their business in their estate plan to someone they trust or perhaps all of their children jointly. Simply arranging for someone to inherit a business could lead to hardship when the current owner or operator dies. Ensuring that the right person inherits the business is very important, but it is far from the only concern if the entrepreneur or owner thinking about the future of the organization wants the company to continue operating even after their death.
Generally, succession planning requires identifying key characteristics, education, experience and training that can help someone take over a managerial or executive role at the company. Succession planning could also include specifically nominating individuals who could fill that role in providing instructions for their training, as well as a walk-through of their basic job responsibilities.
When created in conjunction with an estate plan that addresses the ownership of the business, a succession plan can potentially help keep the business solvent even during a difficult transition when someone dies. Like an estate plan, a succession plan may occasionally require updates when an individual's relationships or business circumstances evolve.
Seeking legal guidance to craft a succession plan can be a very important part of the estate planning process for someone who has an interest in a business.]]>On Behalf of Dornish Law Offices, PChttps://www.dornish.net/?p=484082023-12-19T11:48:30Z2023-12-19T11:48:30Z
It does not matter if you like it
Personal taste is crucial when buying somewhere to live. However much of a financial bargain a place seems, you are not getting good value for money if you hate living there.
When you buy to lease or flip, you need to put your tastes aside and decide what your target renters or buyers would like. For example, you might love a home with low ceilings, cozy rooms and purple walls that reminds you of a hobbit house. Yet if your target market is affluent young couples, you probably want something with white walls and an open plan design.
You do not have years to wait
If you buy a home for your young family, you may look to stay in it until the kids leave home. As long as the market is up when you think about downsizing in 15 or 20 years, what it does in between is irrelevant.
You need to be sure property prices will likely rise when you buy to flip. That way, you can bank the profit and reinvest to keep your money working. If you buy and the market stagnates, you make nothing until it rises, and you can sell at a profit. For rentals, the market rental rates are more important to reaching your investment goal than market sale prices.
Investing in property can be a great way to make money. Yet there are many pitfalls for the unwary first-time investor. Getting legal help from an experienced team gives you the best chance of ensuring your investments succeed.]]>On Behalf of Dornish Law Offices, PChttps://www.dornish.net/?p=493182023-12-19T11:44:05Z2023-12-19T11:44:05Zprobate oversight is necessary anytime someone has an asset solely in their name, meaning they do not own it jointly with another individual, and they do not have a beneficiary named to receive that property in formal estate planning documents. The process generally involves the following, at a bare minimum.
Submitting records to the courts
Providing the estate planning paperwork, such as a will, to the courts will be an important starting point. The person serving as the executor or personal representative of the estate will usually also need to review someone's financial records and provide the courts with an inventory of assets and financial obligations. The contents of someone's estate and estate plan will determine what happens next. In some scenarios, the courts will decide how to distribute assets among specific individuals, such as the immediate family members of the deceased party. Other times, they will simply ensure that the executor properly fulfills their obligations, such as filing taxes and sending notice to creditors.
Distributing assets and fulfilling responsibilities
The personal representative of an estate will need to secure and manage someone's assets after their death. They may need to manage their sale and distribute the proceeds to beneficiaries or creditors. They may also need to arrange for the physical transfer of personal property. The estate process can take many months to complete. In some cases, it may take well over a year to go from filing the initial paperwork with the courts to distributing the last remaining assets. Even estates that have named beneficiaries for all assets will require probate court involvement because someone contests the validity of the estate plan or the actions of the personal representative.
Knowing what to expect during the probate process can be beneficial both for those tasked with estate administration and those hoping to inherit from a Pennsylvania estate.]]>by nathanmorganhttps://www.dornish.net/?p=493612023-12-19T21:58:27Z2023-12-19T11:41:47ZCo-Authored By: Bradley S. Dornish, Esq. and Nathan Morgan
Purchasing a home is a very involved process. It can take weeks of research to find the right property, and buyers may have to compete with many other parties interested in the same home. Typically, buyers need to make their best possible offer when the market is competitive. Even with higher interest rates recently, low inventory of available homes in the Pittsburgh market has kept competition keen.
The offer process usually includes offering a purchase price that reflects what the property is worth in the current market and the fewest conditions a buyer is comfortable offering. To ensure that sales are fair and appropriate, Pennsylvania imposes certain requirements on a party listing residential real property and the agent representing them. Proper disclosure of all major defects with the property is one of the most important responsibilities.
If a seller chooses to hide known issues with the property, the buyer may then decide to take them to court afterward. Why is litigation often the response to hidden property issues?
Defects are often very expensive to correct
Certain issues with the property may be immediately obvious. Uneven floors or cracking plaster will be hard to ignore during a casual walk-through and easy for a professional inspector to identify. Other property issues are much harder to spot, especially if the seller makes a point of trying to hide them. For example, sellers might spackle and paint over cracks in the drywall that would otherwise indicate their property has foundation issues. They might move furniture so that prospective buyers or inspectors will not see problems with their property's floors or walls. They may even attempt to temporarily repair damage caused by water incursions when permanent fixes, such as full roof replacements, are necessary to fix such incursions.
Latent defects often cost tens of thousands of dollars to repair. They can also cause significant collateral damage to the home and the property inside the building before the buyers uncover the issue. A lawsuit means that buyers can either recoup repair costs and damage-related expenses or request compensation for the diminished resale value of the property.
The decision to list a property in as-is condition will not shield a seller from culpability under Pennsylvania's Seller Disclosure law. They still have an obligation to provide specific written disclosures about any known issues with the property which are not readily apparent to the buyer or found through a home inspection before sale. A successful lawsuit can force the seller to compensate the buyer or lead to a real estate agent's professional insurance paying for the cost to repair the defects or the difference in property value they create if the agent knew of the misrepresentation in the disclosure by the seller.
Holding a seller accountable for a property's undisclosed defects is a reasonable response after buying a home only to discover that it has major undisclosed defects. Those with questions or concerns on this subject may benefit from seeking legal guidance as proactively as possible, especially since Pennsylvania has a two-year statute of limitations for bringing action against sellers for Seller Disclosure violations. This statute of limitations begins from the date of a property's closing.
There is an even shorter, one-year statute of limitations for filing a suit arising from a faulty home inspection report. This time window begins following the date of the report's delivery.
For more information on this topic, read Seller Beware of PA's Disclosure Law, found on our website's "Articles" tab under the "Litigation Practice" section.]]>by nathanmorganhttps://www.dornish.net/?p=493672023-12-28T17:46:30Z2023-12-19T11:39:22ZCo-Authored By: Bradley S. Dornish, Esq. and Nathan Morgan
Part 2: Other Key Aspects
A few other notable changes have been made to Title 68 for CICs, including updated language on the removal of executive board members, procedures to amend bylaws, and quorum guidance.
§ 3303, § 4303, and § 5303: Executive Board Members and Officers – Removal of
Executive Board Members
Prior to Act 115, not all the CIC statutes contained guidance for removing executive board members. As it stood, § 4303 (g) of the RECA afforded such guidance to Cooperatives and § 5303 (f) of the UPCA did the same for Planned Communities. But now, with § 3303 (g)—a new subsection of the UCA—titled, “Removal of Members of Executive Board,” Condominiums are also afforded such guidance.
This new subpart allows for Condominium “unit owners, by a two-thirds vote of all persons present and entitled to vote at any meeting of the unit owners at which a quorum is present, [to] remove any member of the executive board with or without cause.” Voting-eligible association members can remove an executive board member by a two-thirds majority vote for any reason or non-reason, provided that a quorum, or the minimum number of association members required to conduct meetings and/or make binding decisions (as defined by an association’s bylaws), is present. This subpart also stipulates that such votes are only valid if “notice of the intention to remove a member of the executive board is given with the notice of the meeting at which such removal is considered.” Notice of an upcoming removal vote must be provided alongside the notice of the wider meeting. Executive board members “appointed by the declarant” cannot be removed under the rules provided by this subpart.
§ 3306, § 4306, § 5306: Bylaws – Amending Bylaws
Procedures for associations to amend their bylaws were introduced under entirely new sections—§ 3306 (6), § 4306 (6), and § 5306 (6)—with each act containing multiple, identical provisions:
If “(A) fifty-one percent of the votes in the association are allocated” (a simple majority vote), then bylaws can be amended.
Associations may also require “(B) [any larger majority (§ 3306, § 4306)/a larger majority of the votes (§ 5306)] as specified in the bylaws” in order to make changes.
Also, “(C) a smaller majority as specified in the bylaws [may be permitted] if all of the units are restricted exclusively to non-residential use.” Non-residential associations can permit a smaller-than-majority voting requirement to institute bylaw changes.
Subsection (6) (ii) for each act stipulates, “The vote may be taken only at a scheduled meeting and following notice to the unit owners as provided under section [3308/4308/5408] (relating to meetings) that was advertised 14 days in advance to the [unit owners (§ 3306)/proprietary lessees (§ 4306)/unit owners (§ 5306)].” Votes to amend bylaws are required to take place at scheduled meetings with at least 14 days of advance notice.
One last notable aspect of the new law is its updated “Quorums” guidance for CICs.
The three acts contain identical amendments to their quorum guidance: “If the association fails to meet a quorum at two subsequent meetings…the association may utilize the provisions under 15 Pa.C.S.A. § 5756(b) (relating to quorum) to meet quorum requirements” (§ 3309 (a) (2), § 4309 (a) (2), and § 5309 (a) (2)). If an association is unable to meet its quorum during two subsequent meetings, it can now refer to the quorum provisions of PA’s Associations Code. That section, found at 15 Pa.C.S.A. § 5756 (b) (1) reads, a meeting “At which directors are to be elected that has been previously adjourned for lack of a quorum, although less than a quorum as fixed in this section or in the bylaws, shall nevertheless constitute a quorum for the purpose of the election of directors.” So, if an association has adjourned a meeting where they were to elect directors because of two subsequent quorum failures, then “less than a quorum” can be enough attendance at a third meeting to proceed and vote.
Even in our post-pandemic world, the changes adopted by Act 115 will hopefully help to make the operations of Pennsylvania’s Condominiums, Planned Communities, and Cooperatives easier for many years.]]>by nathanmorganhttps://www.dornish.net/?p=493662023-12-28T17:37:16Z2023-12-19T11:36:49ZCo-Authored By: Bradley S. Dornish, Esq. and Nathan Morgan
Part 1: Meeting and Voting
The coronavirus pandemic altered every aspect of life within every facet of society. The operations of Pennsylvania’s Condominiums, Planned Communities, and Cooperatives, collectively known as Common Interest Communities (CICs), were also substantially impacted. Pandemic mandates restricting “in-person” activities were at odds with Pennsylvania’s CIC statutes which required associations to hold “in-person” meetings, vote “in-person or by proxy,” and to mail meeting notices. These stipulations, found in three separate statutes within PA Title 68 on Real and Personal Property—including the Uniform Condominium Act (UCA) (68 Pa.C.S.A. § § 3101 et seq.), Real Estate Cooperative Act (RECA) (68 Pa.C.S.A. § § 4101 et seq.), and Uniform Planned Community Act (UPCA) (68 Pa.C.S.A. § § 5101 et seq.)—created significant challenges for associations attempting to comply with their governing documents while navigating pandemic restrictions. Some aspects of the older Unit Property Act (68 P.S. § § 700.101 et seq.) also apply to, and spurred pandemic-related challenges for, older condominiums formed after its passage in 1963 and before the passage of the UCA in 1980.
Challenges faced by associations throughout 2020, 2021, and 2022 were numerous…
The “Meetings” provisions of the three central acts—§ 3308 of the UCA, § 4308 of the RECA, and § 5308 of the UPCA—each state, using identical language, that CIC bylaws must require “meetings of the association be held at least once each year.” As a result of pandemic restrictions, it became difficult to hold annual association meetings.
The “Quorums” provisions under each act further complicated operations. Applying to associations’ annual and special meetings, § 3309 (a) of the UCA, § 4309 (a) of the RECA, and § 5309 (a) of the UPCA each state, in identical language, “Unless the bylaws provide otherwise, a quorum is present throughout any meeting of the association if persons entitled to cast 20% of the votes which may be cast for election of the executive board are present ‘in-person or by proxy’ at the beginning of the meeting.”
Applying to meetings of Boards of Directors or Executive Boards, § 3309 (b) of the UCA, § 4309 (b) of the RECA, and § 5309 (b) of the UPCA all state, “Unless the bylaws specify a larger percentage, a quorum is deemed ‘present’ throughout any meeting of the executive board if persons entitled to cast 50% of the votes on the board are present at the beginning of the meeting.”
Changing the bylaws of an association (i.e., “unless the bylaws provide otherwise”), allows for associations to increase or decrease the percentage of voting-eligible, present members, but “not [to] less than 10%.” However, changing association bylaws is costly and time-consuming, and this would not alter these laws’ requirements for “in-person” attendance. We quickly learned that it was difficult, if not impossible, to hold in-person meetings during the pandemic.
In lieu of these many obstacles, CICs were faced with the choice to either violate their bylaws, declarations, and statutes by allowing meetings to be held virtually and/or with some form of electronic voting, or, they had to institute complex proxies to allow a small number of individuals to cast proxy votes as instructed by each individual owner.
These issues were the topic of discussion at a virtual meeting conducted by the Real Property Section of the Allegheny County Bar Association in early 2020. After this vigorous discussion amongst Real Property Section members, I alerted PA State Representative Valerie Gaydos (R-44), who had previously hosted public meetings for CIC property owners in her district, to these various matters.
Representative Gaydos and her staff worked with other representatives to address the concerns of CIC homeowners and associations via the introduction of House Bill (HB) 1795, which was a series of omnibus amendments applying to the three primary CIC-governing acts. HB 1795 was passed by the PA House of Representatives on October 25, 2022, and the PA Senate approved it on October 26, 2022. Governor Wolf signed the bill, then passed as Act 115, into law on November 3, 2022, and it took effect on May 1, 2023. This new law simplifies the operations of homeowners' associations and their executive boards, defining new ways in which CICs can conduct their meetings and voting. Here are some of those changes:
§ 3308, § 4308, § 5308:Meetings
Title 68’s § 3308 (a), § 4308 (a), and § 5308 (a) have been amended to read, “The notice of a meeting may be delivered by electronic means if the unit owner has agreed in writing to accept the notice by electronic means or where the bylaws permit electronic notices….” Unlike the prior laws which required mailing of meeting notices, notices can now be sent electronically, provided that unit owners’ consent or the bylaws permit the same.
§ 3308 (b) (2), § 4308 (b) (2), and § 5308 (b) (2) now also allow notices to be sent by “Facsimile transmission, e-mail or other electronic communication to the [unit owner (§ 3308, § 5308)/proprietary lessee (§ 4308)]’s facsimile number or address for e-mail or other electronic communications supplied by the [unit owner (§ 3308, § 5308)/proprietary lessee (§ 4308)], provided that the unit owner has agreed in writing to accept the notice by electronic means or where the bylaws expressly permit means of delivering electronic notice.”
The amendments also allow for the “Use of remote technology.” § 3308 (c), § 4308 (c), and § 5308 (c) state, “Except as otherwise provided in the bylaws, an individual may participate in a meeting of the executive board or association by means of a conference telephone or other remote electronic technology, including the Internet, which allows participants in the meeting to hear each other. Participation in a meeting as authorized under this subsection shall be deemed in-person attendance at the meeting.” Subsection (c) is crucial for CICs, allowing electronic meeting attendance to be considered “in-person.” Whether a member attends through Zoom, Microsoft Teams, telephone, or otherwise, they are considered “in-person” if the other members can audibly hear them.
Recordings of association meetings are now permitted with notice. § 3308 (e), § 4308 (e), and § 5308 (e) state, “Unless the bylaws provide otherwise, meetings of the association may be recorded by the executive board via audio or video technology, provided that an announcement is made by the presiding officer at the commencement of the meeting that the meeting will be recorded. A recorded meeting under this subsection shall be maintained and available to [unit owners (§ 3308, § 5308)/proprietary lessees (§ 4308)] for a period of no less than six months after the date of the meeting.”
§ 3310, § 4310, § 5310:Voting; Proxies
The three acts, under their “Approved methods of voting” sections, now also contain subparts permitting associations to vote by electronic means.
Subsections § 3310, § 4310, and § 5310 (e) (1) (i) permit voting “in-person or by proxy at a meeting of the association;” § 3310, § 4310, and § 5310 (e) (1) (ii) allow voting “by absentee or electronic ballot in accordance with this subpart;” and § 3310, § 4310, and § 5310 (e) (1) (iii) permit it “by another method of voting expressly provided in the association's declaration or bylaws.”
Subsections (e) (2) (i) provide that absentee or electronic ballots may “be counted as a unit owner present and voting for the purpose of establishing a quorum, and otherwise, only for agenda items appearing on the ballot,” and (e) (2) (ii) stipulates that such ballots “Not be counted even if properly delivered, if the unit owner attends the meeting to vote in-person.” Unit owners may submit absentee or electronic votes to establish quorums or on other ballot agenda items, but any such votes will be voided should that owner attend a meeting to vote in-person. This averts the potential of “double counting” votes.
Subsections (e) (3) stipulate that, “For the purposes of this subsection, the term ‘electronic ballot’ means a ballot cast or given by electronic transmission over the Internet, vote management system or the association's community network, whether by direct connection, intranet, telecopier, electronic mail or other technological means, if the identity of the unit owner submitting the ballot can be confirmed and a receipt of the electronic transmission and ballot can be made available to the unit owner.” In essence, any electronic apparatus can be used to cast and record votes if the system provides secure voter identification and accessible voting receipts.
The term “vote management system,” is introduced in § 3310 (e) (3), § 4310 (e) (3), and § 5310 (e) (3). The respective “Definitions” portions of each act—§ 3103, § 4103, and § 5103—each define the term as, “A third-party vendor who operates a digital or subscription service that securely manages the conduct of elections and voting procedures.” Third party providers who offer fair, honest, and secure voting services can constitute a “vote management system” for an association.
Subsections § 3310 (f), § 4310 (f), and § 5310 (f) provide new rules for voting by “Acclamation.” These amendments each read, “Unless the bylaws of the association provide otherwise, in the event that an election for a position on the executive board is uncontested, the officer or chair presiding at the election meeting may declare the nominee elected by acclamation after determining there are no further nominations.” Barring different association rules, a presiding election meeting officer or chair can appoint a candidate to the executive board if said candidate’s race is uncontested and no other nominations exist. This has been a longstanding practice for many associations but is now clearly referenced in and permitted by Pennsylvania law.]]>On Behalf of Dornish Law Offices, PChttps://www.dornish.net/?p=493162023-12-19T12:10:31Z2023-08-12T03:15:45ZPeople need living and testamentary documents
A basic estate plan could be as simple as a single document. A will can name the guardian for someone's children and recipients for their major assets. It is a common mistake for people to focus only on the descent of their property and the protection of their family members instead of considering what needs they may have in the future. Testamentary documents discussing someone's death, including wills and trusts, are very useful. Most people would also benefit from creating living documents like powers of attorney and advance medical directives to protect them from emergencies that leave them incapacitated.
Estate plans require frequent review
One of the many reasons that people procrastinate about estate planning is that they know that they want to have another child or that they will sell their house and move into a smaller home when they retire. Instead of waiting for everything in one's life to feel settled, be safer approach typically involves adults frequently reviewing their estate plan. Checking the documents every few years and after major changes to one's finances or family can help ensure that the documents remain accurate and valid.
What someone doesn't say can cause problems
Some people don't want to talk about their legacy wishes with their loved ones. Others make major choices, like the decision to disinherit one child, and do not share that directly with their families. It can be very important to talk about estate planning wishes with beneficiaries and family members. It is also very important to make sure that a testator addresses all of their major choices and assets in writing in their estate plan. From acknowledging the decision to disinherit one child instead of just leaving them out of the paperwork to addressing what happens to the assets not valuable enough to include by name, there are many details that people typically need to include in their estate plans to avoid conflict after their passing.
Those who understand the basics of estate planning will be in a better position to protect their interests and their loved ones alike. Putting together and regularly reviewing an estate plan is a valuable undertaking for adults of all ages and circumstances. Seeking legal guidance is a good way to start.]]>On Behalf of Dornish Law Offices, PChttps://www.dornish.net/?p=487162023-04-13T09:56:11Z2023-03-17T19:41:12Zentered an Order as to the validity of the City of Pittsburgh’s Rental Ordinance. Among part of the requirements under the Ordinance, Landlords would have been required to obtain a permit from the City designating a “responsible local agent” before any rental unit could be leased, rented or occupied. In order to obtain the permit, the Landlord would have been required to furnish personal information for not only all of the property owners of the rental unit, but also, the responsible local agent and for the person authorized to make or order repairs to the property if the property was found to have a code violation. This information was then going to be published in a public database. Rental property owners who lived outside of Allegheny County were going to be required to hire a licensed real estate management firm with offices located in Allegheny County to be their responsible local agents and to accept service of process for legal matters for the owner.
The Commonwealth Court ruled that the Ordinance imposed affirmative and numerous duties and requirements on Landlords, beyond registration and permitting of rental units. Under the City’s Home Rule Charter, the City does not have the power to impose “duties, responsibilities or requirements” upon the conduct of “businesses, occupations and employers”. The Court therefore concluded the City was without authority to enact the Rental Ordinance and reversed the trial court. This means the rental registration ordinance is not valid.]]>