THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

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).

* * *

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

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

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

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

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:

§ 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

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

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.