Condominium and Community Association Emergency Powers During COVID-19
As condominium and community associations continue to operate in crisis mode, many association documents impose procedures and deadlines which, under these circumstances, cannot be met. For associations governed by the Pennsylvania Non-Profit Corporation Law, however, boards may be permitted to resort to certain emergency powers:
§ 5509. Bylaws and other powers in emergency.
(a) General rule.–Except as otherwise restricted in the bylaws, the board of directors or other body of any nonprofit corporation may adopt emergency bylaws, subject to repeal or change by action of the members, which shall, notwithstanding any different provisions of law or of the articles or bylaws, be effective during any emergency resulting from an attack on the United States, a nuclear disaster or another catastrophe as a result of which a quorum of the board cannot readily be assembled. The emergency bylaws may make any provision that may be appropriate for the circumstances of the emergency, including:
(1) Procedures for calling meetings of the board or other body.
(2) Quorum requirements for meetings.
(3) Procedures for designating additional or substitute directors or members of another body.
(b) Lines of succession; head office.–The board of directors or other body, or the officers, if given authorization by the board of directors or other body, either before or during any emergency, may:
(1) provide, and from time to time modify, lines of succession in the event that during the emergency any or all officers or agents of the corporation shall for any reason be rendered incapable of discharging their duties; and
(2) effective in the emergency, change the head offices or designate several alternative head offices or regional offices of the corporation.
(c) Personnel not liable.–A representative of the corporation:
(1) Acting in accordance with any emergency bylaws shall not be liable except for willful misconduct.
(2) Shall not be liable for any action taken by him in good faith in an emergency in furtherance of the ordinary business affairs of the corporation even though not authorized by the emergency or other bylaws then in effect.
(d) Effect on regular bylaws.–To the extent that they are not inconsistent with any emergency bylaws adopted, the bylaws of the corporation shall remain in effect during any emergency, and, upon its termination, the emergency bylaws shall cease to be effective.
(e) Procedure in absence of emergency bylaws.–Unless otherwise provided in emergency bylaws, notice of any meeting of the board of directors or another body during an emergency shall be given only to those directors or members of another body it is feasible to reach at the time and by such means as are feasible at the time, including publication, radio or television. To the extent required to constitute a quorum at any meeting of the board of directors or another body during any emergency, the officers of the corporation who are present shall, unless otherwise provided in emergency bylaws, be deemed, in order of rank and within the same rank in order of seniority, directors or members of the other body, as the case may be, for the meeting.
Based upon Section 5509, associations can seek relief from (among others) deadlines, meeting attendance and quorum requirements. Such temporary measures may help facilitate continued governance within the limitations imposed by the pandemic. However, Section 5509 is “subject to the bylaws”. Prior to relying on the Non-Profit Corporation Law and adopting emergency bylaw changes, existing bylaws may need to be reviewed to determine whether such measures are permitted.
Our firm attorneys are in regular contact with our condominium and community association clients to discuss these unique types of issues that are now been raised due to the COVID-19 crisis.
This article is not legal advice and is provided for informational purposes only. Actual legal advice can only be provided after consultation by an attorney licensed in your jurisdiction.
