Q&A: Courtyard Rules

Q Our new condominium association contains, as part of its common elements, an atrium and courtyard. What do I need to know about instituting rules and regulations for these common areas in light of the fact that the board would like to afford residents the opportunity to “rent” the atrium and courtyard for parties or other functions?

—Concerned About Common Elements

A “The power of a board to adopt rules and regulations is provided under N.J.S.A. 46:8B-14(c) of the New Jersey Condominium Act,” says Eric D. Brophy, Esq. of Diegnan & Brophy, LLC in Berkeley Heights. “Because you propose to adopt rules and regulations that will affect every unit owner, more important than the legalities may be the ‘policy’ behind the rules and regulations. Clearly, the board has the right to adopt, distribute, amend and enforce the rules governing the ‘use of the common elements,’ but it is the internal process within an association that often proves daunting to a board trying to come up with new rules and regulations. For this reason, you should contact an attorney to review and interpret your governing documents to determine whether there are any abnormal rule adoption processes required.

“Generally, adopting the rules is a simple process requiring that the board meet, discuss and vote on any new rule or regulation. First, the board should discuss how it wants the atrium and courtyard to be utilized (i.e. reservations required, charging a fee for use or other restrictions).

“Before voting on any new rules, you should encourage owner participation in the rule adoption process. This is particularly true in the adoption of ‘policy’ rules affecting all homeowners. You should discuss the proposed rules and regulations restricting the use of the atrium and courtyard at an open meeting and invite owners to provide opinions or suggestions on the new rules. In this regard, you will be required to provide the appropriate notice and hearing/comment period of any such meeting which are contained within your governing documents. Your governing documents should be consulted prior to making any rule change and, in this case, setting up the meeting to ensure compliance. Owner participation in new policy decisions typically invites a smoother transition and compliance with the new rules.

“Finally, once a final decision on the specific rules is made, the board must formally vote on the rules and the decision published. The decision must be ‘published’ by way of formal resolution, which should be drafted by your attorney. The resolution will then be placed in the book of resolutions which is kept as part of your governing documents. It is important to carefully follow your governing documents so that a rule or regulation is not determined to be ineffectual upon a challenge at a later date.”

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