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February 19, 2025
Representing a Common Interest Community Association (CA)
Greg Shivers
Representing a condominium or homeowners association (CA) is much different than when I started representing associations in 2000. Unlike Pennsylvania which has a Uniform Planned Community Act, New Jersey practitioners must know and balance the sometimes-competing requirements of a number of legislative enactments including the Condominium Act, the Planned Real Estate Development Full Disclosure Act, the Non- Profit Corporation Act and the accompanying regulations. On top of that is the ever-evolving case law as CA members and interested industry groups become more litigious. Finally, if you are representing associations, it is likely you are going to handle their collection matters so you must be aware of the Fair Debt Collection Practitioners Act and related regulations which are evolving through case law weekly and which expose you, rather than your client, to liability even for technical violations of the Act. Laws obviously designed to protect consumers from credit card and bank collectors do not take into consideration the differences and challenges of collecting for a CA.
In 2007 the New Jersey Supreme Court decided the Twin Rivers case1 which held that a member can challenge association rules which place a restriction on the constitutional guarantees of free expression and assembly and ruled that such restrictions must be reasonable as to time, place and manner. As such, the status of CAs as a purely private entities was forever changed. There are still many unsettled questions about how much an association can control political speech and CA attorneys must try to predict how a court might ultimately rule on each particular issue. These issues have only become more difficult to deal with given the increased political and social enmity within communities.
In 2017 came the passage of the “Radburn Act”2 and since then, new case law and legislative additions that impact CAs have been coming fast and furious. Radburn changed the rules for association elections overriding their Bylaws, redefined “good standing”, required disclosure of association records, and changed methods for amending governing documents among other changes. The Department of Community Affairs, which is charged with carrying out the mandates of the legislation, complicated matters by adopting sweeping regulations which were challenged and litigated over the next 3+ years. Inconsistencies between the legislation and the regulations are just one of the issues that CA attorneys must help clients manage.
In 2023 the Corporate Transparency Act was passed by Congress and was inexplicably applied to CAs that are primarily formed as non-profits. The deadline for association board members to register with the government’s website was December 31, 2024 but was stayed by a Federal Court (and then unstayed and then reimposed within a week) so navigating our association boards through that process has been challenging.
The biggest current issue facing CA attorneys is the January 8, 2024 law that dramatically changed the rules concerning mandatory structural inspections and the creation and maintenance of CA reserves. This was a reaction to the South Florida disaster where a high-rise condominium collapsed killing a hundred people because the members refused to spend money to inspect and properly maintain the building. For associations that have been woefully under-reserved since inception (a far-too frequent occurrence) this law is creating nightmares for homeowners faced with substantially increased assessments and special assessments and for the CA attorneys helping boards to understand that they have no choice in the matter. Ignoring the law is not an option as it could subject board members to uninsured liability.
These are not the only legislative and legal issues which CA attorneys are dealing with daily, but it hopefully points out that this is not a practice you can “dabble” in without subjecting yourself to substantial risk of malpractice. On the other hand, it is a challenging area of law that constantly presents new and interesting issues.
1192 NJ 344 (2007)
2 As series of amendments to the Planned Real Estate Development Full Disclosure Act NJSA 45:22A-21 et seq. spurred by a
