Annual Meeting Election Reminders
March 6th, 2023 | Community Association Law Blog
By Eric F. Frizzell, Esq.
You are planning for your community association’s upcoming annual meeting and board election. In the last three years, you have become quite familiar with the “Radburn” regulations governing board elections that were enacted by the NJ Department of Community Affairs in 2020. Complying with the regulations’ many new legal requirements can be challenging. Here are a few of them that are important to remember but easy to forget during the often hectic process of preparing for the election:
1. The only qualification for being a candidate for the board is being a “member in good standing”. Under Radburn, a member in good standing is an owner of a unit who is current in the payment of common expenses, late fees, interest on unpaid assessments, legal fees or other charges lawfully assessed; OR is in compliance with a judgment for such charges; OR is in full compliance with a settlement agreement for the payment of such charges; OR has requested or is participating in ADR or a court proceeding for a dispute over a matter that affects the owner’s good standing.
This means that a unit owner who has been sued by the association in a collection action and is contesting the lawsuit must be considered in good standing. Similarly, a unit owner who is in arrears but is complying with a payment plan approved by the board also is in good standing.
2. Since a candidate for election to the board must be an owner, be sure to confirm that each candidate is in fact an owner – on the deed to their unit or, in a cooperative, on the shares and proprietary lease. A non-owner spouse cannot be a candidate for the board. We have seen a number of people who nominated themselves as a candidate but were not owners – and it will be much easier for you to deal with this situation at the time you receive the nomination rather than discovering the lack of eligibility after the notice of meeting package and ballots have been sent out.
3. In an association with 50 units or more, a minimum of 30 days prior to the election the association must notify members who are not in good standing. The notice must state the reason why the member is not in good standing and that they have the right to contest the board’s determination by requesting ADR. We recommend that you include in the notice the specific amount of a member’s arrears and also provide a copy of their account statement. The member must be allowed to rectify their standing up until five business days prior to the election date (remember not to count weekends or holidays).
Due to the fact that the notice must be sent out at least 30 days before the election, the cut-off date for being in good standing logically also must be at least 30 days before the election. Otherwise, the purpose of the notice is negated. Therefore, even if your association’s by-laws impose a shorter cut-off date for determining good standing, the regulations’ requirement supersedes it.
In associations with fewer than 50 units, the notice of lack of good standing must be sent at least 14 days prior to the election.
4. Ballots must show candidates in alphabetical order by last name, with no mention of incumbency status.
5. Write-in candidates are permitted. Ballots must have a separate line for a write-in candidate for each seat that is up for election (i.e. if three seats are up for election, there must be three write-in candidate lines on the ballot).
6. Will the annual meeting and election be held remotely? If so, there is an important, non-Radburn requirement. New Jersey law now allows condominium associations, cooperatives and homeowners associations that are incorporated to hold meetings of their members by remote communication, e.g., Zoom or similar video platform, to the extent that the association’s board authorizes and adopts guidelines and procedures governing the meeting. To hold a remote meeting, the law also requires an association to implement reasonable measures to:
(a) verify that each person participating remotely is a member or a proxy of a member;
(b) provide each member participating remotely with a reasonable opportunity to participate in the meeting, including an opportunity to vote on matters submitted to the members, and to read or hear the proceedings of the meeting substantially concurrently with those proceedings; and
(c) record and maintain a record of any votes or other actions taken by remote communication at the meeting.
These guidelines and procedures should be adopted by your association’s board in a formal written resolution prior to the date of a remote meeting, and preferably before the notice of meeting package is sent out.
As always, please feel free to contact us with any questions you may have.
This bulletin is for informational purposes only and does not constitute legal advice.