Title 68 Amendments – House Bill 1578 (Clean-Up Bill) Signed into Law
On Friday, March 27, 2020, Governor Tom Wolf signed into law House Bill 1578- a clean-up bill to the Pennsylvania Uniform Condominium Act (“UCA”), Uniform Planned Community Act (“UPCA”) and the Real Estate Cooperative Act (“RECA”). There are a total of four (4) clean-up amendments per Act, and although amendment section numbers vary, the content of same is nearly identical for each Act. Accordingly, the language of the Uniform Condominium Act amendments will be utilized as an example and for informational purposes in order to set forth the clean-up amendment language, description and analysis.
Sections 3205(13.2) of the UCA, Section 4205(a)(16) of the RECA and Section 5205(16.2) of the UPCA
Section 3205(13.2) of the UCA was amended as follows:
§ 3205. Contents of declaration; all condominiums.
The declaration for a condominium must contain:
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(13.2) Any fees or charges to be paid by unit owners, currently or in the future, for the use of the common elements, limited common elements and any other facility related to the condominium.
These sections enumerate specific provisions which a declaration MUST contain. The amendment adds an additional item to the list, requiring express disclosure of any fees imposed (now or in the future), for use of the common elements, limited common elements and any other facility. Accordingly, to the extent use of a facility may be subject to additional fees (above regular assessments), a declaration must now clearly set forth the existence and basis for same.
Sections 3219(f) of the UCA, Section 4216(f) of the RECA and Section 5219(f) of the UPCA
Section 3219(f) of the UCA was amended as follows:
§ 3219. Amendment of declaration.
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(f) Corrective amendments.–Except as otherwise provided in the declaration, if any amendment to the declaration is necessary in the judgment of the executive board to cure any ambiguity or to correct or supplement any provision of the declaration, including the plats and plans, that is defective, missing or inconsistent with any other provision thereof or with this subpart or if an amendment is necessary in the judgment of the executive board to conform to the requirements of any agency or entity that has established national or regional standards with respect to loans secured by mortgages or deeds of trust on units in condominium projects (such as the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation), to comply with any statute, regulation, code or ordinance which may now or hereafter be made applicable to the condominium or association, or to make a reasonable accommodation or permit a reasonable modification in favor of handicapped, as may be defined by prevailing Federal or State laws or regulations applicable to the association, unit owners, residents, tenants or employees, then, at any time and from time to time, the executive board may at its discretion effect an appropriate corrective amendment without the approval of the unit owners or the holders of any liens on all or any part of the condominium, upon receipt by the executive board of an opinion from legal counsel who is independent from the declarant to the effect that the proposed amendment is permitted by the terms of this subsection.
These sections generally govern the circumstances under which certain corrective amendments may be made to a declaration. Permitting such amendments to be made without a vote of the unit owners, these sections are subject to receipt of an opinion from independent legal counsel, confirming the appropriateness of the corrective amendment. In response to uncertainty created by inconsistent case law, the amendment clarifies the meaning of “independent counsel”. The amendment confirms that current legal counsel (provided he/she is independent from the declarant) is deemed competent to provide an opinion necessary for the adoption of a corrective amendment.
Section 3306(c) of the UCA, 4306(c) of the RECA, and Section 5306(c) of the UPCA
Section 3306(c) of the UCA was amended as follows:
§ 3306. Bylaws.
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(c) Corrective amendments.–Except as otherwise provided in the bylaws or code of regulations, if any amendment to the bylaws or code of regulations is necessary in the judgment of the executive board to cure any ambiguity or to correct or supplement any provision of the bylaws or code of regulations that is defective, missing or inconsistent with any other provision thereof, with the declaration or with this subpart or if an amendment is necessary in the judgment of the executive board to conform to the requirements of any agency or entity that has established national or regional standards with respect to loans secured by mortgages or deeds of trust on units in condominium projects (such as the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation), to comply with any statute, regulation, code or ordinance which may now or hereafter be made applicable to the condominium or association, or to make a reasonable accommodation or permit a reasonable modification in favor of handicapped, as may be defined by prevailing Federal or State laws or regulations applicable to the association, unit owners, residents, tenants or employees, then at any time and from time to time, the executive board may at its discretion effect an appropriate corrective amendment without the approval of the unit owners or holders of any liens on all or any part of the condominium, upon receipt by the executive board of an opinion from legal counsel who is independent from the declarant to the effect that the proposed amendment is permitted by the terms of this subsection.
This amendment permits the adoption of corrective amendments to bylaws and/or codes of regulations similar to the existing procedures (set forth above) for effecting corrective amendments to declarations. The following circumstances may warrant a corrective amendment if necessary in the judgment of the executive board, if accompanied by an opinion from legal counsel (independent from the declarant):
- To cure any ambiguity or to correct or supplement any provision that is defective, missing or inconsistent with any other provision of the bylaws/code of regulations or the declaration;
- As necessary to conform to the requirements of any agency or entity that has established national or regional standards with respect to loans secured by mortgages or deeds of trust on units in condominiums, planned communities or cooperatives;
- To comply with any statute, regulation, code or ordinance which may now or hereafter be made applicable to the condominium, planned community or cooperative; and/or
- To make a reasonable modification or permit a reasonable modification in favor of handicapped, as may be defined by prevailing federal or state laws applicable to the association/cooperative.
Consistent with the requirements set forth above, boards can now adopt corrective amendments to the bylaws and code of regulations; the Acts previously only addressed such amendments to a declaration.
Section 3402(a)(17) of the UCA, Section 4403(a)(16) of the RECA and Section 5402(a)(18) of the UPCA
Section 3402(a)(17) of the UCA was amended as follows:
§ 3402. Public offering statement; general provisions.
(a) General rule.–Except as provided in subsection (b), a public offering statement must contain or fully and accurately disclose:
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(17) Any [current or expected] fees or charges to be paid by unit owners, currently or in the future, for the use of the common elements, limited common elements and other facilities related to the condominium.
Similar to the manner in which Section 3205 (see above amendment) imposes requirements on contents of a declaration, Section 3402 governs public offering statements. The amendment adds an additional item to the list, requiring express disclosure of any fees imposed (now or in the future), for use of the common elements, limited common elements and any other facility. Accordingly, to the extent use of a facility may be subject to additional fees (above regular assessments), such fees must be disclosed in the public offering statement.
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.
