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.

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.

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:

By Ronald L. Perl, Esq., CCAL

On March 25, 2019, the New Jersey Legislature passed a bill that will enhance the lien priority for condominium associations and, for the first time, give the same lien priority to homeowners associations.

If this legislation is signed by Governor Murphy, both condominium and homeowners associations will enjoy a limited priority over all other liens (except for municipal liens or liens for federal taxes). The legislation would amend the lien priority provisions already contained in the Condominium Act and add the lien priority provisions in the Planned Real Estate Development Full Disclosure Act (PREDFA).

By Jonathan H. Katz, Esq.

Hill Wallack LLP’s Condo FAQs is a continuing series in which we answer frequently asked questions (FAQs) pertaining to condominiums, cooperatives and homeowners associations. These FAQs relate to various issues that include interpretation of governing documents, board meetings, suspension of privileges, collections, or bankruptcy and foreclosure.

Question:  We have been told that our association may not be responsible or liable for personal injuries or damages when someone slips and falls. Is that correct?

Answer:  If your by-laws contain a provision providing for tort immunity, the answer may be yes. New Jersey has a tort immunity statute that allows associations to shield themselves from liability for certain types of injuries caused to unit owners due to the association’s negligence. This immunity is applicable as long as the association has certain language in their by-laws or takes the proper steps to amend their by-laws.

Specifically, N.J.S.A. 2A:62A-13 provides:

“It’s deja-vu all over again.”

To clarify the questions raised by it’s original FAQ (“Frequently Asked Questions”), the New Jersey Department of Health has issued an Updated FAQ regarding the new rules and regulations with regard to the New Jersey State Sanitary Code, Chapter IX – Public Recreational Bathing, N.J.A.C. 8:26. The Updated FAQ clarifies the new lifeguard requirements specifically with respect to “specially exempt” facilities (see picture above).

You can review the UPDATED Department of Health’s FAQ by clicking here.