CERTIFIED MANAGEMENT

Can we still require homeowners to wear masks in common areas?

In most cases, yes. The recent Executive Order prevents local governments from mandating masks, but it does not prevent any private business or HOA from setting and enforcing its own rules about masks. HOA rules can be more restrictive than government orders, and the Governor’s order is clear that nothing prevents a business or other establishment from enacting its own hygiene/safety measures, including mask requirements (GA-34, Section 4).

A non-condominium HOA’s governing documents must give the Association sufficient rulemaking power to cover a mask mandate. Condominium associations have rulemaking authority as a matter of law. All rules should be filed in the official public records of the county.

If your HOA is a condo or your documents allow rulemaking, I recommend adopting a rule that either requires masks in common areas or authorizes the Board to adopt resolutions that enact and rescind (as circumstances change) mask mandates and other safety/hygiene measures. For now, I recommend enacting a mask mandate via rule or resolution for common areas because the CDC, and State and federal health guidelines, still strongly encourage individuals to wear face coverings wherever it is not feasible to maintain six feet of social distancing.

Can we still place capacity limits on HOA amenities, such as a pool?

In most cases, yes. As with mask mandates, nothing in the recent executive order prevents HOAs from enacting measures that are more restrictive than government orders. Proper rulemaking procedures must be followed before capacity limits or any other similar rule can be enforced.

Capacity limits can be maintained in rules if desired, or some HOAs find it easier to enforce rules requiring 6’ of distancing between parties in the common area (which in effect acts as a capacity limit).

CDC guidance for swimming pools can be found at:

https://www.cdc.gov/coronavirus/2019-ncov/community/parks-rec/aquatic-
venues.html#anchor_1612214349775

With no mask mandates or capacity limits what is left?

Travis County emergency orders have expired but City of Austin orders are still in place – a number of Austin orders were not superseded by the Governor’s new order.

Austin’s mask mandates and capacity limits have been superseded by the Governor’s executive order. However, other portions of the Austin Health Authority orders (now extended through April 15, 2021) were not superseded by the Governor and are still in effect. These Austin orders still require all facilities (including HOAs and condos for their common area pools and other amenities) to:

* clean and disinfect high-touch surfaces twice per day;
* post signage at entrances to certain common areas;
* require at least 6’ between groups of individuals;
*provide a health check to workers; and
*ensure that no more than 10 people ever gather on a site (including in HOA common areas.)

Some of the former Austin requirements, such as checking workers’ face coverings and posting a sign that says that visitors are required to wear masks, are no longer enforceable; other requirements, such as those outlined above, were not superseded by the Governor’s order and are still enforceable.

How can we adopt a mask rule, capacity limit, or other health policies?

There are two options for adopting hygiene and safety protocols, assuming the HOA documents grant the board rulemaking authority (condominium boards have rulemaking authority granted by state law): (1) adopt and file a rule mandating masks in common areas, limiting pool capacity, etc. or (2) adopt and file a rule that authorizes the Board to enact temporary health and safety protocols by resolution. I prefer option (2) because it allows HOAs to adapt their protocols to changing circumstances without the need for
filing a new rule with the County Clerk each time.

For HOAs that are not condominiums, rules must be adopted at an open board meeting for which at least 72 hours’ notice has been given to the members (Property Code Section 209.0051). For most condos, a board meeting is not required, but notice of the new rules must be given to the members at least 10 days before they are adopted (Property Code Section 82.070).

If you have adopted COVID-related rules, I recommend reviewing the rules and any related resolutions to confirm that masks are required in the common areas. If masks are not currently required, we can draft updated rules and resolutions for you. We have drafted health and safety rules and temporary protocols for many HOAs trying to navigate the coronavirus pandemic, and we are happy to be of assistance.

The short answer is, “not very much.” Some POAs document do not require annual meetings to be held at any particular time. Some dictate the date of the meeting. Failure to hold the meeting on that date, especially given the current circumstances, has relatively little potential for adverse consequence. The consequence per state statute would be that if an owner notified the POA of a demand that the meeting be held, the POA would have to hold the meeting within 60 days of the date of the owner’s demand. Texas Business Organizations Code Chapter 22 is applicable to all Texas nonprofit corporations. Most Texas POAs are Texas Nonprofit corporations. The primary applicable statute is Texas Business Organizations Code § 22.154.

For HOAs: In most cases, yes. Unless your documents specifically require in-person meetings or prohibit electronic meetings, state law expressly allows owner and board meetings to be held by electronic communication. (Business Organizations Code §§22.002 and 6.002).

All people participating in the meeting (all board members at a board meeting, all owners at an annual meeting) would need to be able to hear and be heard by all others. For a board meeting, the board members simply need to be able to hear and be heard by all other board members. For an owner meeting, all being able to be heard by all usually takes the form of muting all but the board, allowing questions or comments to be typed in electronically, and un-muting for questions or comments from any given owner, or reading questions or comments and replying). Meeting notices would need to provide the directions for dial-in. (Texas Property Code §209.0051).

At a phone or video board votes would be documented just like any other board vote – a voice vote typically, with a tally made, and the minutes reflective of passage (e.g. “It was moved, seconded, and approved by at least majority vote of a quorum of directors, that the landscaping contract be renewed…”)

When setting up electronic meetings, please be mindful that not all board members or POA members may have readily-available computer access; please always have a call-in option. There is no legal requirement of video capability, a conference call line works just fine. 

For condominiums: For member meetings, unless the governing documents prohibit electronic meetings or expressly require in-person meetings, state law allows them to be held electronically (Bus. Org. Code §§22.002 and 6.002). For board meetings, state law expressly allows electronic board meetings, but with limited exceptions as to votes that can be taken at electronic meetings. Texas Property Code §82.108 prohibits the following board votes at an electronic board meeting: voting on a fine, damage assessment, appeal from a denial of architectural control approval, or suspension of a right of a particular association member before the member has an opportunity to attend a board meeting to present the member's position, including any defense, on the issue. Under the same statute, condo boards may also act by unanimous written consent as long as the vote is not on a fine, damage assessment, appeal from a denial of architectural control approval, or suspension of a right of a particular association member before the member has an opportunity to attend a board meeting to present the member's position, including any defense, on the issue In ALL cases of electronically-conducted votes, POAs must implement reasonable measures to verify that every person voting at the meeting by means of remote communications is sufficiently identified, and must keep a record of any vote or other action taken.

For HOAs: State statute (Property Code §209.0051) allows for board votes outside of a board meeting, with exceptions for certain votes that may not be taken outside of a meeting (these exceptions are listed below). Voting need not be unanimous but each board member must be given a reasonable opportunity to express his or her opinion to all other board members and to vote. Any action taken in this manner must 1 This notice must be given at least 20 days before the latest date on which a ballot may be submitted to be counted. So if the ballot was due on the 30th in order to be counted, you would need to provide notice no later than the 10th. 3 be summarized orally, including an explanation of any known actual or estimated expenditures approved at the meeting, and documented in the minutes of the next regular or special board meeting.

The following items are the exceptions that may NOT be considered or voted out outside of a meeting (they must be acted on at an electronic or in person meeting, with 72 hour notice to the ownership2 : fines; damage assessments; initiation of foreclosure actions; initiation of enforcement actions (excluding TROs and health or safety matters); assessment increases; special assessment levies; appeals from ACC denials; suspensions of common area use rights before the owner has had opportunity to attend a board meeting to present his or her position; lending or borrowing money; adopting or amending dedicatory instruments; approving an annual budget; approving an amendment to the budget that increases the budget by more than 10%; the sale or purchase of real property; filling a board vacancy; construction of capital improvements (n/a to repair or enhancement of existing improvements); and election of officers.

For condominiums: State statute (Property Code §82.108) expressly allows the board to act by unanimous written consent (email consent is written) with the exception that the board cannot act by unanimous written consent (must have a meeting) on the following items: voting on a fine, damage assessment, appeal from a denial of architectural control approval, or suspension of a right of a particular association member before the member has an opportunity to attend a board meeting to present the member's position. A record of all board action taken by unanimous consent must be filed with the minutes of board meetings.

“No” and “no”. There is no legal basis to waive or suspend assessments. There is legal basis for flexibility with payment. POAs have mandatory duties and in some cases fiduciary obligations to their members. Bills have to be paid. POAs are nonprofit businesses but are a business – with business obligations like taking care of the POAs infrastructure, paying for POA insurance, and other legal obligations.

For HOAs: All Texas HOAs with more than 14 lots are required to offer payment plans to their members (Property Code §209.0062). All should have a payment plan rule filed of record – this is required by state law. HOAs are not required to offer payment plans to an owner who has defaulted on a plan in the last two years. If you do not have a payment plan of record, you need one if you are an HOA with more than 14 lots. Consult your HOA attorney. This is only going to become more important if more people request plans.

For condominiums: Condominiums are not required to offer payment plans. Condominiums typically have far larger budgets than HOAs and rely heavily on the cash flow from assessments. That being said, the board could consult their HOA attorney about adopting a payment plan rule. It is suggested that you adopt a rule (not just take requests case-by-case) in order to have standard protocol to avoid situations of or accusations of disparate treatment.

A practical suggestion for POAs with a number of owners requesting payment plans is to ask those who are able to to pay several months of assessments advance. This will help to allow the POA to give payment 2 Your management professional or HOA attorney should be consulted for these notice requirements) 4 plans to the owners who need them while still allowing the POA to carry out its mandatory functions without dipping into reserves.

“No” and “no”. Decisions regarding enforcement action can be taken on a case-by-case basis in a time like we are experiencing, but suspending all enforcement action is not advised. Some enforcement may be a practical impossibility – for example if inspectors can’t drive the neighborhoods, landscape/lawncare violations may lag. But in my opinion an across the board suspension of enforcement is not advisable.