Meetings, Meetings, Meetings (Part I)

Posted by on Jun 11, 2019 in Annual Meetings, Board Meetings

By Ronald L. Perl, Esq. CCAL

How to Sort Out the Legal Requirements for the Various Types of Association Meetings

Since the early 1990s, community associations in New Jersey have been legally required to operate “in the sunshine” by virtue of amendments to the Condominium Act, the Planned Real Estate Development Full Disclosure Act (PREDFA), and regulations promulgated by the Department of Community Affairs. Many board members are still confused about the types of meetings that associations conduct as well as the characteristics and legal requirements of each. This blog is about the different types of meetings. In future blogs, the legal requirements for notice of meetings and proper meeting minutes will be discussed.

It is important initially to distinguish board meetings from membership meetings. Membership meetings are those meetings authorized or required by the governing documents at which the unit owners or homeowners are the decision-makers. The most obvious example of a membership meeting is the annual meeting, where the members decide who will be elected to the board of trustees/directors. Meetings where owners vote on a proposed by-law amendment or the approval of a capital improvement project are other actions taken at membership meetings. The governing documents generally specify the issues for which owner approval is necessary. In some associations, the annual meeting is the only required membership meeting, but most documents also provide for special meetings of the members to be called by the board or by petition of the members to deal with specific issues. Because meetings of the members are “open” by definition, community association open meetings laws do not address membership meetings but rather concern meetings of the governing board.

Board meetings are those at which the decision-making body is the board of directors or trustees. Just as the governing documents define those questions or decisions reserved to the members, they define the authority of the board to act as well. For example, the authority to make rules, enter into contracts, hire employees, and determine the annual assessment generally is granted to the board by the master deed (or the declaration) and by-laws.

There are three basic types of board meetings: (1) business (open) meetings; (2) work sessions; and (3) executive (closed) sessions. Each type of meeting may be “regular” (periodic and regularly scheduled) or “special” (called when there is a special need or emergency between regular meetings).

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Perl to Speak at the CAI-Pa/Del Val Conference & Expo on Thursday, May 9, 2019

Posted by on May 2, 2019 in CAI, Fair Housing, Speaking Engagements

Ronald L. Perl, Esq., CCAL, partner-in-charge of Hill Wallack’s Community Associations Practice Group, will be speaking at this year’s CAI-Pennsylvania/Delaware Valley Conference & Expo on Thursday, May 9, 2019, at the Valley Forge Casino Resort in King of Prussia, PA.

Ron’s educational program, “Expanded Fair Housing Liability for Associations – Exposure for the Illegal Acts of Residents,” will take place from 9:45 A.M. to 10:45 A.M. The program description is as follows:

Most community association boards and managers know that the Federal Civil Rights Act prohibits housing discrimination and that the Fair Housing Amendments Act of 1988 added handicap and familial status to the groups protected by the law. Less well-known is the fact that in 2016, the U.S. Department of Housing and Urban Development (HUD) enacted regulations which expanded the scope of community associations’ liability for housing discrimination. The regulations establish potential liability for associations based on the discriminatory actions of residents over whom the association has no direct control. This session will discuss these regulations and why associations now must be actively involved in addressing resident vs. resident discriminatory conduct.

Hill Wallack’s Community Associations Practice Group will also be exhibiting during the show, which runs from 10:45 A.M. to 5:00 P.M., so stop by to talk to our attorneys and drop your business card for a chance to win our giveaway.

For more information or to register to attend the Conference & Expo, click here.

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Updated Lien Priority Legislation for New Jersey Community Associations Becomes Law

Posted by on Apr 29, 2019 in Collections, Legislation

By Ronald L. Perl, Esq., CCAL & Jonathan H. Katz, Esq.

On April 29, 2019, Governor Murphy signed into law a package of foreclosure bills, all of which were all passed by the New Jersey Legislature on March 25, 2019. Among these new laws are provisions lawmakers promise will help owners keep their homes, shorten the time a house sits vacant, and prevent abandoned properties from becoming eyesores.

The big news for community associations, however, is that the new law expands the scope of lien priority for community associations. This new provision will create for the first time a lien priority for homeowner associations, and will provide both condominium associations and homeowner associations a six (6) month “rolling” lien priority. This means that instead of having a priority for six months of assessments once every five years, associations will have a six month priority once each year.

Prior to today, only condominiums in New Jersey were able to claim limited lien priority. As previously enacted, the lien priority statute entitled a condominium association to six (6) months of “aggregate customary assessments” following a mortgage lender’s Sheriff’s sale so long as the association has a lien recorded prior to the mortgage lender’s initiation of the foreclosure process. Put simply, even though this limited priority existed, it could only be exercised once every five years. So in most cases associations were forced to write off years of unpaid assessments, which increased the assessment burden for the paying owners and adversely affected associations’ budgets and the ability to make necessary repairs and/or capital replacements. Of course, homeowners associations were not even entitled to those six months of fees.

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In Case You Missed It – Watch the Hill Wallack/Vote HOA Now Webinar Regarding Electronic Voting in New Jersey Community Associations

Posted by on Apr 26, 2019 in Elections/Voting, Webinar

In order to help community associations understand the legalities of electronic voting as a result of the Radburn Law, Hill Wallack LLP hosted an informational webinar on this topic with Cathi Sleight from Vote HOA Now on April 24, 2019.

To view the webinar, please click here.

Thanks to our friends at Vote HOA Now for participating in this webinar. You can reach Vote HOA Now at www.votehoanow.com.

If you have any questions regarding electronic voting or any other issue regarding your association, please contact one of our Community Association Attorneys. For breaking news or updates on new blog posts, follow us on Twitter at: @njcondolaw.

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Third Circuit Determines That Association’s Sex-Segregating Swimming Schedule Violates The Fair Housing Act

Posted by on Apr 23, 2019 in Fair Housing, Legal Decisions

By Ronald L. Perl, Esq. CCAL

In a decision issued on April 22, 2019, the United States Court of Appeals for the Third Circuit has determined that rules providing for sex-segregating swimming schedules (separate women-only and men-only times) violate the federal Fair Housing Act (“FHA”), 42 U.S.C. §§ 3601 et seq.

In 2016, the 55+ age-restricted community, A Country Place Condominium Association, in Lakewood, NJ, adopted rules for the use of its community pool, which designated certain hours when only members of a single sex were allowed to swim. This was done, according to the case, to accommodate the approximately 2/3rds population of Orthodox Jews living in the association and the Orthodox Jewish principle of modesty. This principle means that the Orthodox residents are not supposed to swim at a time when members of the opposite sex might be present. According to the decision, men’s swim time encompassed 32.5 hours per week while 33.5 hours were allocated to women’s swims. Only 25 hours were open to mixed swims, of which 13 hours were on Saturdays when Orthodox residents would not swim due to the Jewish Sabbath.

Three individuals (“plaintiffs”) who challenged these rules were found in violation and fined by the association. They filed a complaint in federal court alleging violations of the FHA and the New Jersey Law Against Discrimination. After discovery in the trial court, both the plaintiffs and the association filed motions for summary judgment. The District Court ruled in favor of the defendant association because it found that “the gender-segregated schedule applies to men and women equally.” The plaintiffs appealed.

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Practical Issues with the Radburn Nomination Process

Posted by on Apr 18, 2019 in Annual Meetings, Board Meetings, Elections/Voting, Legislation

By Ronald L. Perl, Esq. CCAL

The Radburn Law provides that New Jersey community associations must accept nominations to an association’s board of directors/trustees “as long as the nomination is made prior to the mailing of ballots or proxies to the association members[.]” It also states that the mailing cannot occur earlier than the day after the nomination deadline, if there is one, or, if no deadline was set, “the business day prior to the actual mailing.” To compound problems, Radburn requires that the notice of the election include a proxy and absentee ballot, which lists the candidates in alphabetical order.

I can only assume that the drafters of this provision did not consider that it takes time for many associations to draft these documents, then print and get them ready for mailing. Large scale associations must mail well over 1,000 sets of election notices with enclosures. In many cases, it takes more than one day to make them ready to be picked up or transported to the Post Office. So what happens three days after the nominations deadline when everything is printed, the envelopes are stuffed and addressed, and a person arrives at the association office with a self-nomination form? According to Radburn, it all has to be redone. If you reject the nomination as untimely, you run the risk of the entire process being invalidated. Frustrating, isn’t it?

This impractical provision needs to be amended. Why not amend the call-for-nominations provision of Radburn to require setting a deadline and providing that no nomination can be accepted more than the third business day after the deadline? Isn’t that fair to everyone?

In the meantime, what can we do? For one thing, nothing in the law requires all notices and other documents to be mailed at the same time. So I have suggested that associations be prepared to include a nomination cut-off date in their procedures and at least begin the mailing process on the next business day. Have a reasonable number of envelopes and notices ready so all you will need to do is print the necessary number of absentee ballots and/or proxies. That number will depend on the size of the association; you want it to be the number that can reasonably be done that day. Remember, just imposing a nomination deadline is not enough. Even if you have one, the critical cut-off is the actual mailing date.

For more information on this or any other issue concerning your community association, please contact one of our Community Associations attorneys. For breaking news or updates on new blog posts, follow us on Twitter at: @njcondolaw.

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Electronic Voting in New Jersey Community Associations

Posted by on Apr 12, 2019 in Annual Meetings, Board Meetings, Elections/Voting, Legislation

 

 

 

By Ronald L. Perl, Esq., CCAL

For many years now, I have been convinced that electronic voting in community associations was inevitable. There is no doubt that electronic voting would make life easier for community managers, board members, and homeowners. When my clients were making by-law changes, I drafted amendments for associations that would take effect when the eventual change occurred. With the enactment of the Radburn Law, that change has now occurred and associations have the ability to adopt electronic notice and voting provisions. In my opinion, too few associations have taken advantage of this opportunity.

Electronic voting is sometimes misunderstood. It is not voting by e-mail. Rather, electronic voting means that ballots are cast on-line or through other electronic means and delivered directly to an association through a website or other secure service or program prior to a meeting. Notices are similarly handled on-line. For years, corporations have conducted elections electronically and the technology is readily available and at little cost for use by associations.

Electronic voting is more secure than using paper ballots, proxies, and absentee ballots. Verification of identity is provided. Results are available more quickly. Voter identity is protected (i.e., secret ballots). Weighted voting (different percentages for different units) is made easier. Even associations with fractional voting can be accommodated. There is greater confidence in the election process, since the collection and tabulation of votes is not handled either by management or the board. The process can result in cost savings for many associations.

In order to implement electronic notice and voting, associations will need to amend their by-laws. The good news is that the “reverse amendment” or “rejection vote” process in the Radburn Law is available for this task. Here is what Radburn specifically requires regarding electronic notice and voting:

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