We’re only human—no matter how harmonious and tight-knit a community may be, differences and disputes are bound to happen from time to time. That’s why laws and rules are in place. But, the federalist system of government we use in this country is far from the most efficient system. Layers and layers of laws, statutes, and regulations fall on associations, and it's quite literally impossible to keep up. First there’s the condominium declaration and bylaws. There are the house rules, which can be separate from the bylaws. Then there are municipal codes and ordinances that can impact anything from how many trees need to be on the association’s property to plumbing to civil rights issues. On top of that, there are state laws and statutes drafted and passed by the New Jersey legislature, and almost constant changes and amendments made; on top of that, there are federal laws and regulations.
Associations and their counsel need to keep abreast of all of these, because they all affect how the HOA can and should conduct its everyday operations and relationships. What might seem fair on a federal level could be more complicated on a state level, and if your documents are not up to date, what might seem like a silly legal issue can easily spiral out of control. In order to avoid trouble and keep the peace, association and building boards should at least know the general lay of the land, and what kind of legal landmines are out there.
The Condo Act
Compared to other states, New Jersey has a pretty clear picture when it comes to laws regarding condominiums, thanks to the New Jersey Condominium Act, also known as the Condo Act.
At its core, the Condo Act provides a blueprint for associations, and standardizes many important procedures. “It is rare but a few condominium associations have governing documents that direct the board members to conduct alternate dispute resolution hearings in contradiction of The New Jersey Condominium Act which states that a 'person other than an officer of the association, a member of the governing board or a unit owner involved in the dispute shall be made available to resolve the dispute.' In these types of cases, the association should ignore the inconsistent rule or restriction and comply with the law,” says Mary Barrett, a shareholder attorney with the law firm of Stark & Stark in Lawrenceville. If you're curious about whether state law trumps associations declarations the simple answer is that it depends, and there's no obvious way to tell unless you memorize the Condo Act.
Even though most of the Condo Act clarifies simple procedural processes for boards and associations, it's still important to keep up to date. “The association’s legal counsel should advise the board of trustees of the new law and how it impacts the association. The board should be advised that the new law will likely trump any existing rule of the association that conflicts with it. Legal counsel can help the board revise those rules to bring them into conformity with any newly enacted laws. It is actually rare that a new law will have substantial impact on an association’s governing documents. However, new case or a court’s interpretation of a long-standing statute frequently affects associations,” says Richard Linderman, a partner at the law firm of Herrick, Feinstein LLP in Princeton.