Oftentimes co-op, condo and HOA boards are faced with difficult choices when it comes to enforcing their community’s rules and regulations. Board service isn’t an easy thing, and while board members want to be understanding of their fellow residents, they are both legally and morally obligated to enforce board decisions as needed. One possible option in dealing with serious infractions is to deny access to community amenities – or even to property access.
Where is the Precedent?
Infractions by co-op, condo or HOA members generally fall into two categories: rules violations and nonpayment of assessments and fees. The question arises as to whether a board of directors has the option to penalize members by restricting access to and use of amenities as punishment for infractions and nonpayment to begin with.
Scott Piekarsky, an attorney and president of Piekarsky & Associates in Wyckoff, New Jersey says, “In my experience, it can happen – but it’s got to be in the governing documents. I’ve had associations where the documents say that for certain violations, privileges such as use of house facilities can be suspended. Usually it’s a 30-day suspension, but then the resident has the right to a hearing. Now, in New Jersey we have to offer ADR – alternative dispute resolution – for just about everything and anything. So, (1) the clause must be in the governing documents, (2) the suspension is only for a limited time, and (3) the association must offer the offending resident ADR.”
Chris Florio is an attorney with Stark & Stark in Lawrenceville, New Jersey, and represents co-op and condominium boards and associations as well as HOAs. He supports Piekarsky’s assessment that authority emanates from the governing documents. “Co-ops are a bit different, but in a condo setting, the thing we have to be concerned with in New Jersey,” he says, “ is that if there is a debtor, and the documents allow us, we can deny access for certain infringements. For instance, if we have a community with on-street parking, we can utilize ‘not-a-member-in-good-standing’ status to prevent the resident from parking and as a means to tow his/her car. But there are some things that must be set up before an association can do this. In New Jersey there is something called the Predatory Towing Prevention Act, and unfortunately community associations are covered by this law, which basically sets forth that the association must have certain signage with special statutory language in place. If they have that sign with that language, we suggest that a board adopt appropriate language [in their documents] that will permit towing for non-payment of fees. It’s very effective, because people need their cars.”
Understanding Terms, Conditions and Distinctions
To delve a bit further into the do’s and don’ts of this legal landscape, Piekarsky says, “There is wide discretion for rules and regulations in the New Jersey Condominium Act, but to the best of my recollection we don’t have any specific language in the Act dealing with the issue of denying access. It must be in the governing documents of the condominium.” He cautions that if the appropriate language isn’t there, “You would have to amend the governing documents [to include it]. The board would need to call a vote and a super majority would be needed. Sixty-five to 75 percent of the residents would have to agree to the modification, which would become effective upon recording of the document. It should also be remembered that under the case law with regards to cases of non-payment or arrearages, the association would have to offer the resident ADR.”