New State Regulations Impact Community Association Annual Meetings, Elections, and Other Functions
May 29th, 2020 | Community Association Law Blog
By Mary Wynn Seiter, Esq.
The New Jersey Department of Community Affairs (“DCA”) has finally issued regulations to implement the so-called “Radburn Act,” a 2017 law amending the Planned Real Estate Development Full Disclosure Act (“PREDFDA”), N.J.S.A. 45:22A-43 et seq. The regulations were issued in draft form in 2019, and to many appear to have gone beyond the scope of the Radburn Act requirements. While many strong objections to certain aspects of the regulations were received during the comment period, the DCA made almost no changes when issuing the regulations in final form earlier this month – nearly 3 years after the Radburn Act took effect.
There are many complexities introduced by these new regulations, and their implementation in any association’s operations can be complicated. Some of the big take-aways and requirements from these regulations include:
1. That an owner is a Member in Good Standing if the owner is current in the payment of common expenses, assessments and related charges, is in compliance with a judgment for common expenses, assessments and related charges, is in full compliance with a settlement agreement for the payment of assessments and related 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.
2. Membership in Good Standing is the sole qualification for executive board candidacy.
3. Associations are responsible for verifying the eligibility of voting members, and counting ballots in a non-fraudulent and verifiable way.
4. All ballots for the election of executive board members must be anonymous.
5. Ballots must be tallied publicly, with ballots open for owner inspection for 90 days following an election.
6. Ballots must show candidates in alphabetical order by last name, with no mention of incumbency status.
7. Write-in candidates are permitted. Ballots must have one line for a write-in candidate for each seat that is up for election (i.e. if 3 seats are up for election, there must be three write-in candidate lines on the ballot).
8. Prior to the election, associations must send notice to all members that are not in good standing (14 days prior to the meeting for associations of less than 50 units; 30 days for all others), so members have the chance to dispute or cure the lack of good standing; members have until 5 days prior to the meeting to cure.
9. Boards can remove a member of the board for good cause that directly impacts that member’s ability to serve.
10. Boards cannot remove a member of the board solely because that member disagrees with the majority of the board.
11. Boards must give the membership notice of the schedule of open board meetings for the year within 7 days after the annual meeting. Should the schedule of meetings change, notice of that change must be given at least 7 days prior to the affected meeting.
12. Votes taken in a closed board meeting are not binding, and must be voted on in open session without revealing any confidential nature of the matter, if applicable.
13. If a meeting is recorded electronically, written minutes must also be taken, and members have the right to review the recording and the minutes.
14. If an association has affordable housing units and those affordable housing units are a minority of units, then at least one Board seat must be reserved for affordable housing unit representation.
15. Electronic (online) elections can proceed as long as anonymity is preserved; there appears to be no public viewing of vote tallying in that instance.
There remain many questions on how these regulations are to be implemented, and how to reconcile several apparently conflicting provisions. We stand ready to help you and your community ensure that your election and governance processes comply with these new regulations.
Please let us know if we can assist you with regard to understanding and implementing any of these new legal requirements.