Hill Wallack LLP Firm News/Blogs Feed

Hill Wallack Employment Law Attorney Susan L. Swatski Appointed to the SERV Centers Board of Directors

15 Jul 2020

Princeton, NJ July 15, 2020 --- Hill Wallack Employment Law attorney Susan L. Swatski, Esq. joins the SERV Centers Board of Directors. Ms. Swatski has been involved with SERV since 2019. She is a member of SERV’s Personnel Committee, and she will now serve on the organization’s Legal Committee. SERV’s President and CEO, Regina Widdows said “Susan has been a longtime, passionate advocate for ethics and professionalism and we look forward to her leadership as we continue our mission to provide exceptional care to those who need it most.”

Susan L. Swatski is counsel in the Princeton, N.J. office of Hill Wallack LLP. In addition to employment law, Ms. Swatski is also a member of the firm’s Product Liability, Community Associations, and Construction Industry practice groups. She frequently presents seminars regarding anti-discrimination and harassment in the workplace, compliance with COVID-19 regulations and general human resource management.

Ms. Swatski is admitted to practice in the states of New Jersey and New York, as well as, the United States Supreme Court, the Third Circuit Court of Appeals, the Second Circuit Court of Appeals, the U.S. District Court of New Jersey, the U.S. District Court for the Southern District of New York, the U.S. District Court for the Eastern District of New York and The U.S. District Court for the Western District of New York.

About SERV Behavioral Health

SERV Behavioral Health System, Inc. is a private statewide, not-for-profit behavioral healthcare organization serving adults and children working to recover from a serious mental illness or cope with a developmental disability. Remaining focused on personal dignity and quality of care, we utilize a continuum of services that are tailored to meet individual needs. It is our goal to assist our consumers to live and work successfully in their communities. Housing and supportive services are integrated into a broad-based approach that addresses the most basic needs of each individual (food, shelter, clothing) while allowing them to safely adjust to living in the community and gradually build a more independent life.

The people we assist on a daily basis are your family, your friends, your neighbors, and your children. They are the people in your community. Each day we work to strengthen these individuals in an effort to help them to live successfully in the community, maintain regular work, or further their education while they struggle to cope with a serious disability. We do this because we know that with the strengthening of each individual comes the strengthening of our community as a whole.

Governor Wolf Extends Prohibition on New Residential Foreclosure Filings to August 31

10 Jul 2020

Written by: Jill M. Fein

On July 9, 2020, Governor Tom Wolf issued an executive order extending his previous prohibition on the filing of new residential mortgage foreclosure cases until August 31, 2020. Governor Wolf’s Order follows other agencies such as the U.S. Department of Housing and Urban Development (“HUD”) and the Federal Housing Finance Agency (“FHFA”) who have also extended their moratorium on single family residential foreclosures to August 31, 2020.

A significant factor leading to the July 9th Order stems from the Federal Coronavirus Aid, Relief and Economic Security (“CARES”) Act, which provides Pennsylvania with $175 million specifically marked to aid struggling renters and homeowners. The Pennsylvania Housing Finance Agency (“PHFA”) was tasked with developing a program for distributing the financial assistance, which did not become active until July 6, 2020. As such, Governor Wolf’s Order specifically states that the extension of the moratorium is based partly so that more Pennsylvanians can access these funds.

It is important to note that while Governor Wolf’s Order only applies to the filing of new residential foreclosure cases, some counties across the Commonwealth have interpreted the Order to apply to commercial matters as well. Additionally, some counties have used the Order to bar the filing of all pleadings on residential foreclosure cases, even those already in progress, including motions and judgments.

Hill Wallack’s attorneys are tracking the changes to the foreclosure landscape as they occur and are working to keep you up to date with the latest information. Contact one of Hill Wallack’s experienced foreclosure attorneys to learn more and discuss your options.

©2020 Hill Wallack LLP. All rights reserved. Please contact Hill Wallack for permission to reprint. Notice: The purpose of this Client Alert is to identify select developments that may be of interest to readers. The information contained herein is abridged and summarized from various sources, accuracy and completeness of which cannot be assured. This Client Alert should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel.

Hill Wallack Community Associations attorney Jessica N. Baker on Board Members Who Are Delinquent With Their Fees

01 Jul 2020

Click here to read Jessica N. Baker's response to the New Jersey Cooperator’s Q&A: Board Members Who Are Delinquent With Their Fees.

Assembly Votes To Convert Foreclosures Into Affordable Homes

23 Jun 2020

Written by: Eric P. Kelner, Michael Kahme and Keith M. Salmeri

On June 15, 2020, the New Jersey General Assembly passed Assembly Bill No. 1049 known as the “New Jersey Residential Foreclosure Transformation Act” (the “Bill”). The basic premise of the Bill is to create affordable housing by using existing foreclosure property throughout New Jersey. The bill creates a separate office within the New Jersey Housing and Mortgage Finance Agency (“NJHMF”) through which the office would purchase foreclosed homes in order to turn them into affordable housing. The office is funded through the levying of a $350.00 tax to be assessed by county Sheriff’s offices on all future foreclosure sales. Although the bill has only passed the Assembly and is still in committee in the New Jersey Senate, many New Jersey Senators and the Governor have expressed interest in the bill.

The New Jersey Residential Foreclosure Transformation Program

The Bill, within the NJHMF, creates the New Jersey Residential Foreclosure Transformation Program (“FTP”). The FTP is generally tasked with overseeing the program envisioned by the Bill and is also required to produce annual reports tracking certain metric data relating to foreclosures in New Jersey.

The FTP is given broad authority to enter into contracts it “determines to be necessary or appropriate” to carry out the responsibilities under the Bill and may employ consulting services, real estate and loan portfolio asset management firms, property management firms, auction firms, and brokerage services to name a few. The Bill also empowers the FTP to enter into contracts or loans with no more than two qualified community development financial institutions, a designation issued by the United States Department of the Treasury, to negotiate, bid for, and purchase eligible properties for the production of affordable housing.

In selecting contractors from among qualified community development financial institutions, the FTP is to accord “strong preference” to institutions with substantial experience in New Jersey. Any contract entered into by the FTP and a qualified community development financial institution is required to include the repayment schedule for the portion of the funding to be repaid and targeted goals of affordable housing to be produced as well as specify the reasonable administrative costs for the qualified community development financial institution to exercise its obligations. Any contract is also required to set forth the criteria for instances when the transfer of property at market-rate, as opposed to an affordable rate, further the purposes of this act.

Property Restrictions

The FTP or its contractors are permitted to convey any property purchased under the Bill as affordable housing subject to a 30-year maximum deed restriction. Property can be conveyed at market rate, and not subject to the 30-year affordability restriction so long as the property can be conveyed at a rate deemed “affordable”, meaning that if the market rate for the property already qualifies it as “affordable” then the property can be conveyed without any restrictions.

The Foreclosure to Affordable Housing Transformation Fund

To fund this program, the Bill creates a Foreclosure to Affordable Housing Transformation Fund which is to be used to purchase the foreclosure property to be converted into affordable housing. According to the Bill, when county Sheriff’s offices conduct Sheriff’s sales, they are required to charge a $350.00 tax per sale which is to be deposited into the Foreclosure to Affordable Transformation Fund. The tax is waived only in the case of purchasers who are financing the foreclosure sale through the use of a first-time homebuyer loan insured by the Federal Housing Administration. These funds are then to be used to purchase foreclosed properties that the FTP or its contractors will develop into affordable housing.

Bill Passage Status

As of the date of this memorandum, the Bill has been approved by the New Jersey General Assembly. An identical copy of the Bill is currently under review in committee in the New Jersey Senate.

Hill Wallack Partners Are Among The 2019 CAI Annual Volunteer Award Recipients

16 Jun 2020

CAI LAC-NJ to be Named 2019 Legislative Action Committee of the Year

Ronald L. Perl to receive 2019 CAI Award of Excellence in Government and Public Affairs

June 16, 2020 Princeton, NJ ---The Community Associations Institute (CAI) Board of Directors has selected the New Jersey Legislative Action Committee to be named the 2019 Legislative Action Committee of the Year.

The Board has also selected Hill Wallack partner Ronald L. Perl, partner-in-charge of the firm’s Community Associations practice group to be the recipient of the 2019 Award of Excellence in Government and Public Affairs.

Hill Wallack has several partners among the New Jersey Legislative Action Committee. George C. Greatrex, Jr. is the LAC Chair, Caroline Record is a committee member and Loren R. Lightman is one of the Board liaisons. George is honored and says “this is a true validation of the volunteer work put in by our LAC members to benefit and support all those who live and work in common interest communities in New Jersey and across the nation.” Ron adds: “Our firm has assembled many of the state’s leading and most experienced community association attorneys, and giving back to the industry has been a focal point of our practice. We are pleased to have this unique opportunity.” Celebrations of accomplishments in the community associations industry were scheduled to take place in Hollywood, Florida, but due to the current pandemic, celebrations will now be celebrated at the 2021 Annual Conference in Las Vegas, Nevada.

About CAI
CAI is an international membership organization dedicated to building better communities. With over 40,000 members, CAI has 64 chapters worldwide, including Canada, the Middle East and South Africa, and relationships with housing leaders in a number of other countries, including Australia and the United Kingdom. CAI provides information, education and resources to the homeowner volunteers who govern communities and the professionals who support them. CAI members include association board members and other homeowner leaders, community managers, association management firms and other professionals who provide products and services to associations.

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Open Your Doors Carefully --- Re-Opening The Clubhouse and Holding Indoor Events

16 Jun 2020

Written by: Terry A. Kessler, Esq.

With Executive Order 152, issued on June 9, Governor Murphy has authorized larger numbers of people to congregate in certain areas and under specified conditions and so enables community associations to open their clubhouses and facilities and to hold both indoor and outdoor events. However, the order restricts the sizes of such gatherings and the proximity of attendees because congregating in large groups and remaining in close proximity increases the risk of transmitting COVID-19. These new regulations can be found here. While outdoor events also are permitted, this article addresses only indoor use/events. An association is not required to open the clubhouse but if it does, it must consider the following:

Meeting Restrictions

If a community association opens its clubhouse in accordance with the Executive Order, the following is required:

The number of individuals in attendance in each room at any gathering must be limited to 25% of the capacity of the room but no more than 50 people. This limitation does not apply if 10 people or less are in a room.
Face masks must be worn by all attendees except where it is unhealthy for a particular individual or for a child under 2.
Social distancing must be maintained so that individuals must always be 6 feet apart except for immediate family members, personal caretakers, household members, romantic partners or a limited number of individuals organizing/maintaining the gathering.
Physical contact between individuals is prohibited except for family members, caretakers, household members and/or romantic partners or a limited number of the individuals that are organizing and/or maintaining the gathering
To maintain social distancing, where possible, the association should place cones, flags or other markings indicating 6 feet distances, so that residents are aware of the appropriate spacing.
No physical items or equipment may be shared except between immediate family members, caretakers, household members or romantic partners unless before and after each use by an individual such items are sanitized. Therefore, the playing of cards or other table games is problematic because so many items are being touched by multiple people.
Any required payments must have options to be contactless, such as online or by telephone.
All attendees must remain 6 feet apart at all times, except where social distancing is not required between people described above. We recommend that seating be limited to single individuals, must be placed 6 feet apart, and must be sanitized before and after each use in accordance with CDC guidelines. If games are permitted the owners must be spaced to comply with this regulation.
The Executive Order states that the social distancing and contact restrictions do not apply to a gathering of 10 or fewer persons, but they still need to wear face coverings at all times. Nevertheless, we recommend that even such smaller groups maintain social distancing and avoid contact as much as possible.

Additional Safety Precautions

In addition to the requirements of the Governor’s Executive Order, it is recommended that associations do the following unless otherwise required:

Post signs at all entrances that state:
- Stay home if you are sick, have symptoms or are residing with or had contact with someone who is/was sick in the last 14 days.
- Wash your hands with soap and water frequently
- Cover your cough or sneeze with a tissue, then toss the tissue in the trash
- Masks are required
- Maintain social distancing by staying 6 feet apart
Install hand sanitizers or sanitary wipes at all entrances and encourage all those who enter to utilize them when entering the clubhouse and make them available on all tables if residents are going to be able to use the tables.
If possible, place cones, barriers or floor markings in pathways to designate 6 feet distances, to keep attendees from getting too close.
Move and/or rearrange the furniture to maintain social distancing. If the furniture cannot be moved, place markings or barriers to prevent an attendee from sitting within 6 feet of any other attendee unless they are exempt from the socially distancing requirement, as noted above.
Have attendees sign in so that you have a record of anyone who was in the clubhouse for purposes of tracking in case someone who used the facilities has/had the coronavirus.
Hire a third-party vendor with expertise in disinfecting facilities to clean and disinfect frequently.
Consider limiting use of the clubhouse to residents only and prohibit residents from bringing guests.
Consider prohibiting clubhouse rentals unless you will have someone available to: (a) supervise the event to be sure that the guidelines are followed and (b) sanitize after the event.
Contact your insurance agent to see if there are any suggestions regarding the use of the clubhouse by your residents or their guests.
Have the residents sign a waiver to use the clubhouse before permission to use it is permitted.
Depending on the extent of the use, hire or obtain volunteers to supervise and make sure that social distancing is maintained, masks are used, hand sanitizer is available and other requirements are met.

Bathrooms

The Executive Order does not address the use of bathrooms. Therefore, you should consider procedures for sanitation of the bathrooms in connection with indoor meetings.

One option may be to keep the bathrooms closed for short meetings or restrict the number of bathrooms that will be available. In such a situation, warn the prospective attendees before they arrive.
Closing the bathrooms may not be practical for longer or larger meetings. If a bathroom is opened, it should be cleaned frequently and have signage instructing users to wash their hands. In addition, you can close off sinks that are less than 6 feet apart and make sure that the soap is well stocked.
An additional option would be to lock the bathrooms and require a key for use. In this way, you will restrict congregating in the bathroom and can have them cleaned after each use.
You may want to arrange for your cleaning service to have personnel available during the meeting to frequently clean the bathrooms.

Please note that indoor pools and fitness centers must remain closed. Although they are often located within the clubhouse, their use is still prohibited.

In addition, if you are opening your clubhouse in relation to the use of your outdoor pool, all Department of Health Requirements must be followed in the areas. Please refer to our prior client alert.

This is not an exhaustive list. Depending on the size of the clubhouse and the amenities offered, there may be different rules and regulations that apply. Therefore, you are urged to contact your legal counsel to review what is required at your Association.

©2020 Hill Wallack LLP. All rights reserved. Please contact Hill Wallack for permission to reprint. Notice: The purpose of this Client Alert is to identify select developments that may be of interest to readers. The information contained herein is abridged and summarized from various sources, accuracy and completeness of which cannot be assured. This Client Alert should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel.

Hill Wallack Divorce and Family Law Partner Supti Bhattacharya, Panelist for NJSBA

12 Jun 2020

Webcast – Diverse Associates: How To Succeed During COVID-19

Presented by the NJSBA Minorities in the Profession Section

Tuesday, June 16, 2020
12:15 – 1:30 pm

Supti Bhattacharya and co-panelists will discuss and answer questions on the Zoom platform on the following topics:

Billable Hours
Staying Relevant At Your Firm
Handling Anxiety
Professional Development
Working Remotely

Click here to register. Note: You do not need to be a member of the Minorities in the Profession Section to attend.

CLE credit available.

Testing The Waters: Opening Pools In Community Associations

10 Jun 2020

Written by: Caroline Record, Esq.

On June 8, 2020, Governor Murphy announced that all municipal and private club pools, including pools in community associations, would be permitted to open on June 22, 2020 in accordance with specific regulations to be published by the New Jersey Department of Health. Those regulations were published in the wee hours of June 10, 2020 and can be found here. If a community association board decides to open the pool in the community this summer, below are some of the requirements that must be observed and enforced:

Pool facilities are still required to obtain the proper approvals from their local health authorities prior to opening;
Incorporated into the Aquatics Facility Plan (AFP) and while complying with all existing sanitation and safety requirements, the pool facility must develop and implement a COVID-19 Pool Operation Prevention Plan, that complies with Department of Health Guidance;
Pool directors and lifeguards must be trained and equipped on COVID-19 awareness, cleaning, and sanitizing to perform their assigned duties;
Pool facilities should develop procedures and training for their specific pools and implement an “ambassador” to monitor and encourage social distancing;
Pool facilities should implement a policy for screening staff entering the facility that includes temperature checks and screening for COVID-19 symptoms;
Access to the pool facility’s entrance and exit points should be staggered to avoid congestion;
Pool facilities must post signage alerting for signs of illness and to stay home when they are sick or have COVID-19 symptoms;
Capacity must be reduced to 50% of maximum capacity for the facility and grounds, which may be done using reservations/passes and limiting hours (the regulations include a helpful chart regarding recommend bather load calculations);
Mandatory social distancing is required when on the pool deck, lawns, and also while in the water;
Pool facilities must maintain a sign-in sheet for all staff and patrons to facilitate potential contact tracing efforts;
Pool facilities should develop and implement enhanced cleaning and disinfection procedures using EPA approved disinfectants and following CDC guidance that includes frequent cleaning and disinfecting of high traffic areas (restrooms, changing rooms) and major touch points.
At a minimum, cleaning procedures must include providing sanitizer stations throughout the pool facility and frequent sanitation of any areas open to the public several times daily;
Prohibit the sharing of furniture and equipment for use at the pool facility, including lounge chairs, pool toys and noodles, kickboards, and other equipment;
Access to restrooms must be made available; however, foot coverings are required along with social distancing and frequent cleaning;
Staff and patrons should wear cloth face coverings while not in the pool when social distancing of 6 feet cannot be maintained unless:

a.    doing so would inhibit the individual’s health;
b.    cloth face coverings should not be used on children under 2;
c.    cloth face coverings should not be used in the water;
d.    lifeguards should not wear a face covering while on duty
       lifeguarding.

Board members should review in detail the Department of Health regulations, consult with management, their insurance professionals, pool management professionals, municipal officials, and their attorneys to determine whether the pool can be operated while observing the required sanitization, social distancing, and other requirements imposed by these regulations as well as may be imposed by the State, local health authority, or the municipality. A new cleaning program for the common facilities may need to be implemented at an additional expense, part of which would be to make hand sanitizer and/or wipes available. We recommend that a sign-in sheet for all staff and residents be required and a detailed log should be maintained to confirm what sanitization efforts have been done, by whom, and when. In addition, a pool monitor may need to be retained to enforce social distancing or limitation on occupancy and use requirements. Boards should take into consideration whether to allow guests and remove any pool furniture (and make residents bring their own).

Ultimately, boards will need to evaluate the ability to enforce all governmental requirements, the additional expense of compliance, and the possible lack of liability coverage if a claim is made, in determining whether the pool can safely be opened and at what risk to all members of the community. By evaluating all information available, any reasonable decision made by the board and compliance with these requirements should protect the board’s decision by the business judgment rule.

If you have questions about this or any other issues with your community association, please contact one of our community association attorneys.

Not Just Elections: The New DCA "RADBURN" Regulations Also Require Changes To Community Association Board Meetings

08 Jun 2020

Written by: Jonathan H. Katz, Esq.

As we advised in our previous alert, the New Jersey Department of Community Affairs (the “DCA”) published formal regulations governing elections held in community associations, which were made effective as of the day they were made public (May 18, 2020). In addition to the election regulations, the DCA also included new requirements related to community association board meetings. Those new requirements include the following:

Scheduling and Notice of Board Meetings

Community associations are required to hold an annual membership meeting, and within seven (7) days following that annual meeting, every association must post and maintain an open board meeting schedule for that year, which must include the time, date and location of such meetings.
Notice of open board meetings must be:
- prominently posted in at least one location on the community’s property accessible to owners at all times; and
- posted on the association’s website and included in any association newsletter; or
- personally delivered to each member or designee by mail, hand delivery, or electronic means.
In addition to the posted meeting schedule, adequate notice of any scheduled meeting must be provided at least seven (7) days prior to the meeting date. This notice must provide the time, date and location of such meetings, as well as agenda items “to the extent known.”
Any changes to the posted open meeting schedule – other than emergency meetings – shall be made on at least seven (7) days prior to the scheduled meeting date.
Emergency meetings may be held to deal with matters of “such urgency and importance” that providing adequate notice would “be likely to result in substantial harm.” Notice of any emergency meeting must be provided as soon as practically possible. Emergency meetings must be limited only to such urgent matters and the board must establish on the record the facts establishing such emergency.
Cancellation of any meeting must be posted at the meeting location by the time the meeting is scheduled to begin and must be otherwise noticed as discussed above. The cancellation notice must state the reason for the cancellation and when the meeting will be rescheduled.
All open meeting notices must be preserved by the board for at least two (2) years.

Open Versus Closed Meetings

By-Laws of all community associations must now include a requirement that meetings of the association’s executive board where a binding vote is to be taken must be open to attendance by all members.
Association boards must provide a brief explanation for the basis for and cost entailed of any binding vote taken. This explanation must be included in the meeting minutes.
Associations may exclude attendance of association members at portions of any meeting for discussion of any matters:
- where disclosure would constitute an unwarranted invasion of individual privacy;
- regarding any pending or anticipated litigation;
- regarding contract negotiations;
- involving employment, promotion, discipline, or dismissal of any association employee or office or the association; and
- falling within the attorney-client privilege.
However, while boards may conduct such closed (executive session) meetings and discuss those subjects listed above, boards may not take any binding votes on those issues at any closed meeting – any vote taken at a closed meeting will not be binding. If any such matter requires a binding vote, it must be taken at a subsequent open meeting “in a manner that does not disclose any confidences.”
- Please Note: we find this provision to be extremely problematic for conducting community association business. Until we receive further guidance from the DCA, we recommend that when taking votes on confidential matters at open meetings, boards should take extreme caution not to use any language that may disclose any confidential information to the members.
If a closed meeting is to be part of any open meeting, the closed meeting must be held either before the open portion of the meeting or at the end of the open meeting.
While not mandatory, associations may adopt a policy for comments by association members during meetings. Any such policy must be applied uniformly.
Although not expressly addressed by the new regulations, open board meetings may be held in person, by telephone conference, by video/audio conference, or by a combination of methods, provided that all board members can hear and be heard and all association members have the right to “attend” or “listen in.”
We also remind you that board decisions made solely by e-mail are not binding or valid as these regulations make clear. As discussed above, if an emergency requires an immediate decision, the board should set up an actual in-person meeting, telephone conference, or video/audio conference as quickly as possible, and if there is no time for notice to the members, memorialize the reason for the meeting and decision made and then ratify the decision at an open meeting as soon as possible.

Minutes of Meetings

Community associations must take legible minutes of all open meetings that shall include:
- board members present and their titles;
- clear identification of any matters addressed; and
- clear identification of any matters voted on, including a record of the votes and an explanation regarding the basis for and cost entailed for each vote taken.
Minutes of each open board meeting must be made available to association members in a “timely manner” before the next meeting and may be identified as “draft” or “unapproved.”
Any electronic meeting recordings must include with it a written record of what matters were deliberated, what matters were voted on, and the record of each vote. Members of the community must be afforded access and the ability to copy any electronic or written records.

Potential Fines for Violations

The new regulations set forth a process for the filing of complaints for non-compliance, and the DCA has the authority to levy fines of up to $50,000 per violation against any association that does not comply with these new requirements.

Although some of these regulations may be challenged, modified, or otherwise clarified, we suggest that each association make a good faith attempt to comply with all of them as currently drafted unless and until they are revised.

If you have questions about this or any other issues with your community association, please contact one of our community association attorneys.

Ronald L. Perl Partner-in-Charge (609) 734-6349 rperl@hillwallack.com	Kenneth R. Sauter (973) 946-7021 ksauter@hillwallack.com
George C. Greatrex, Jr. (856) 616-8080 ggreatrex@hillwallack.com	Caroline Record (973) 946-7020 crecord@hillwallack.com
Michael S. Karpoff (609) 734-6376 mkarpoff@hillwallack.com	Jonathan H. Katz (609) 734-6393 jkatz@hillwallack.com
Gregg A. Shivers (856) 616-8080 gshivers@hillwallack.com	Catherine M. Brennan (609) 734-6353 cbrennan@hillwallack.com
Loren Rosenberg Lightman (609) 734-6323 llightman@hillwallack.com	Jennifer L. Webb (856) 616-8080 jwebb@hillwallack.com
Terry A. Kessler (609) 734-6350 tkessler@hillwallack.com	Jessica N. Baker (609) 734-6377 jbaker@hillwallack.com
Susan L. Swatski (609) 734-6318 sswatski@hillwallack.com	Alexandra C. Hayes (609) 496-5725 ahayes@hillwallack.com

Election Guidelines for Community Associations under New DCA Regulations

05 Jun 2020

Written by: Ronald L. Perl, Esq.

Effective as of May 18, 2020, the New Jersey Department of Community Affairs has issued formal regulations governing elections held in community associations. The regulations were made effective as of the date they were made public, so associations have had very little time to adapt to them. These guidelines are intended to provide a quick reference to the highlights of the regulations.

Ballots and Voting

Voting must be anonymous so if you are not using electronic voting, names and signatures shall not be required on ballots, whether in-person, absentee or by proxy.
Sample ballots must be provided with the election notice, even if you include an absentee ballot or proxy ballot.
“Public” tallying of ballots is required. This may be accomplished at the annual meeting itself, or in some other method by which the members have an opportunity to view the counting.
For associations of 50 units or more the opportunity for write-in votes is mandatory, whether or not authorized by your bylaws. There must be a space for one write-in vote for each available seat.
Ballots must be available for inspection by the members for a period of 90 days from the election date.
Candidates must be listed in alphabetical order and no candidate may be identified as an incumbent.
Proxies must state that they are voluntary on the part of the granting owner.
Electronic voting must be administered by a “neutral third party” and anonymity must be maintained.

Good Standing

Notice must now be given to association members who are not in good standing.
- In associations with fewer than 50 units, the notification must be sent at least 14 days before the election, state the reason why the member is not in good standing and inform them of the right to ADR in regard to the good standing issue.
- In associations with 50 or more units, the notice must be at least 30 days before the election and contain the same information as above.
- Members are entitled to rectify their standing up to 5 business days prior to the election.
- Note: The ADR need not be conducted prior to the election, but a member who requests ADR is considered in good standing until the ADR occurs.

Affordable Units

When an association:
- (1) contains affordable units; and
- (2) the number of affordable units is fewer than 50% of the total number of units, the bylaws must reserve a seat or seats on the board for a member residing in an affordable unit.

The regulations do not say:
- whether existing bylaws must be amended or whether this applies to new bylaws; or
- what happens if there are no willing candidates from affordable units; or
- what happens when the affordable housing restrictions expire

Board Representation (other than affordable)

In mixed-use developments, the owners of commercial units may not constitute a majority of the board.
No more than one resident from a single unit may serve on the board at a given time.
Neither a person, nor an entity, may hold more than one seat on the board.

Removal of a Board Member

Board members may be removed:
- In accordance with the bylaws; OR
- By the Board for good cause directly impacting the member’s ability to serve.
  - Board may not remove a member for disagreement with the majority or for violating a confidentiality agreement without affording the member ADR; AND
  - ADR provider must conclude that there was a breach that adversely affected the interests of the association as opposed to that of the board.
Board member may also be removed by a vote of the members at a meeting held for that purpose (which can be initiated by a petition signed by 51% of the members).

If you have questions about this or any other issues with your community association, please contact one of our community association attorneys.