1. WHAT YOU SHOULD KNOW ABOUT
THE “RADBURN BILL”: Mandatory Changes to Election and Voting Procedures in New Jersey Community Associations
This course is approved by the Community Association Managers International Certification Board (CAM-ICB) to fulfill continuing education requirements for the CMCA® certification.

2. Today’s presenters Moderator: Carol Koransky, CPA, MBA
Wilkin & Guttenplan, PC
Speaker:
Ronald L. Perl, Esq.
Hill Wallack LLP
Speaker:
Caroline Record, Esq.
Hill Wallack LLP
Speaker:
Jonathan H. Katz, Esq.
Hill Wallack LLP

3. Housekeeping Rules
To ask any questions please use the questions pane in the GoToWebinar dashboard on your screen. We will try to answer as many questions as possible.
We will be polling our audience in the beginning of the session. It will help us get a sense of the participants and their experience.
This webinar is being recorded and will uploaded on to

4. Polling question Who do we have in the audience today? Board Member
Manager
Attorney
Other

5. Let’s start with a history lesson…
The Radburn was established in Fair Lawn in 1929 and is one of the oldest planned real estate developments in the United States.

6. Let’s start with a history lesson…
The Radburn’s design utilized a “superblock” configuration in order to “do away with the traditional grid-iron street pattern” and maintain a separation of pedestrians and automobiles.

7. Let’s start with a history lesson…
The community consists of 149 acres, which includes 430 single family homes, 90 row homes, 54 semi-attached homes, and a 93 unit apartment complex.

8. Let’s start with a history lesson…
In addition, the community also includes a park network of 23 acres, which includes 2 swimming pools, 4 baseball fields, 4 tennis courts, 5 outdoor basketball courts, an archery plaza, and a community center.

9. Let’s start with a history lesson…
The community is governed by the Radburn Association, which is responsible for “fixing, collecting and disbursing charges; maintaining services, parks and facilities; and interpreting and applying the Declaration of Restrictions[.]”
The affairs of the Association are controlled by a nine (9) member Board of Trustees elected by the “membership.”
Although there are approximately 3,100 residents in the Radburn, not every owner of a home in the Radburn is considered a “member” of the Association or granted the right to either run for the Board or vote for members of the Board.

10. Let’s start with a history lesson…
In fact, “membership” in the Association is limited to current and former Trustees of the Association, which totals approximately 40 out of the 3,100 residents.
The only way to become a member of the Association is to serve as a Trustee; the only way to run for the Board is to be nominated by the sitting Trustees.
The non-member residents are invited to participate in the “Radburn Citizen’s Association,” whose President is automatically granted one of the nine seats on the Association’ Board of Trustees.
The Citizen’s Association was created to give the non-member residents a forum for voicing opinions and addressing concerns.

11. Let’s start with a history lesson…
As you can imagine, the non-member owners fought to change what they considered to be an outdated form of governance. These issues came to a head in 2004 when the Board sold a portion of the Radburn’s parkland, known as Daly Field, for the construction of a condominium complex.
In late 2006, a group of residents led by Kathy Moore filed a complaint that challenged the Board’s system of governance (Moore v. The Radburn Association, Inc.).
The Court ultimately found in favor of the Association and upheld the election/membership procedure; the exception being that the Board was required to open its meetings to all owners and disclose certain financial documents.

12. Let’s start with a history lesson…
The outcome of the litigation caused such an uproar within the Radburn community that State Senator Robert Gordon (D-Fair Lawn) introduced this legislation in September 2016 to make the Radburn’s election/voting process more inclusive and transparent.
CAI-NJ and the Legislative Action Committee (LAC) were involved throughout the entire process and assisted with proposed changes and amendments.
The legislation passed unanimously in both the State Assembly (74-0 on May 22, 2017) and the State Senate (39-0 on May 25, 2017) .
On July 13, 2017, Governor Christie signed this legislation into law (P.L. 2017, Ch. 106).

13. WHAT does this legislation do?
This legislation amends and supplements the Planned Real Estate Development Full Disclosure Act (also known as PREDFDA), N.J.S.A. 45:22A-1 to -56.
PREDFDA was enacted in 1977 in part to regulate the creation and sale of units within planned real estate developments; however, the statute was only prospective (meaning that it did not apply to associations created prior to 1977).

14. WHAT does this legislation do?
The first thing that this legislation makes clear is that it applies to all community associations in New Jersey, including condominium associations, homeowners association, and cooperatives, regardless of whether the community was established prior to or after the effective date of PREDFDA.
And most importantly, many of these newly enacted provisions will trump the current by-laws of every community association in New Jersey.

15. Polling question
What is the biggest complaint you receive about your election process?
Insufficient/lack of notice
Lack of candidates
Good standing issues
Proxy/ballot issues

16. Eligibility to Vote / Serve on the Association Board
All owners are now considered members of the association and shall “have the right to nominate, run for, freely elect, and be elected to” the board that governs the association if they are in good standing.
PREDFDA now defines an association member to be in “good standing” if they are current on payments of common expenses, late fees, interest, fines, legal fees, or other charges lawfully assessed.

17. Eligibility to Vote / Serve on the Association Board
If your documents so require, members must be in good standing to either run for or be elected to the association board.
Members must also be considered in good standing: (1) if they are in full compliance with a settlement agreement with regard to past due assessments and other charges; or (2) if the member has a pending, unresolved dispute regarding these charges that has been initiated through a valid alternative to litigation or through court action.
It is permissible for the by-laws to provide that only one (1) owner from each unit may serve on the association board at any given timeeven though each co-owner may be a member in good standing.

18. Timing and conduct of elections
If your bylaws do not specify an interval between elections, an election must be conducted every two (2) years.
Owners have right to petition for election and obtain court order if necessary.
Differing requirements for smaller associations.
Notice
Transparent
Access to information
Process for verification

19. terms, scheduling, AND notice of elections (over 50 units)
Board members shall not serve a single term of more than four (4) years, although board members may run for reelection for one (1) or more terms if allowable pursuant to the governing documents.
However, board members may continue to serve beyond the expiration of their term until their successor is duly qualified and elected.
All members in good standing have the right to nominate themselves or another member in good standing.
The association must provide written notice to all members of this right.
This notice must be provided to all members no later than thirty (30) days prior to mailing the notice of election meeting.
The period for submitting nominations must be at least fourteen (14) days from the mailing of the request for nominations.

20. Timing, scheduling, and notice of elections
The association must provide all association members written notice of the election by personal delivery, mail, or electronic means at least fourteen (14) days, but not more than sixty (60) days, prior to the scheduled election.
If an association’s current by-laws provide for less than fourteen (14) days notice or more than sixty (60) days notice, that provision is no longer valid and the new law controls.
Notice may only be sent electronically if the governing documents permit electronic notices or the member agreed in writing to accept notice by electronic means.

21. SAMPLE election timeline
9/17/17 Association sends out “call for nominations” to serve on the association board – must be sent at least thirty (30) days before mailing the election meeting notice and proxy/absentee ballot
9/30/17 Nominations are due back to the Association or Management - must be at least fourteen (14) days from the mailing of the “call for nominations”
10/16/17 Association sends out written notice scheduling the election meeting - must be sent no less than fourteen (14) days or more than sixty (60) days prior to the date of the election meeting
11/14/17 Association holds election meeting

22. Voting-Eligible Tenants & Exemption from Certain requirements of the Law
The law recognizes the concept of a “voting-eligible tenant” where the governing documents permit tenants to participate in the election processand either there has been an historical standard practice to permit same in the association or the owner assigns the right to vote to a tenant.
There may be board seats assigned to distinct unit types in associations with mixed uses, for example certain seats designated for residential owners and others designated for commercial owners.
Documents may provide for certain board seats to be occupied by owners of affordable housing units.
Associations with multiple geographical sections may provide for election of board members from a given section by members of that section.
Master Association exception: master board made up of board members from sub-associations

23. PROXIES AND ABSENTEE BALLOTS
If your governing documents allow for proxy voting, you must now also offer absentee ballots.
Proxies are an authorization for someone to vote on the member’s behalf (directed proxies appoint a representative to vote in a specific manner); absentee ballots are a direct vote submitted in lieu of attendance at the meeting.
Proxies must contain a prominent notice that the use of the proxy is voluntary and that it may be revoked at any time before the proxy holder casts a vote.

24. VOTING PROCEDURES
All election ballots are required to list the names of all candidates nominated in alphabetical order by last name.
Associations may now utilize electronic voting when authorized by the governing documents and when an association member consents to casting a vote electronically.

25. Polling question
Prior to this legislation, what was the voting requirement to adopt an amendment to your By-Laws?
Simple Majority
Two-Thirds
Greater than Two-Thirds
No Amendment Provision
Don’t Know

26. AMENDMENTS TO THE BY-LAWS
If your governing documents require a vote of two-thirds (2/3) or less to amend the by-laws, the legislation does NOT alter that provision.
However, if there is no amendment provision or if more than a two-thirds (2/3) vote is required to amend the by-laws, that provision is no longer valid and the law substitutes a new requirement - the by-laws may now be amended by “an affirmative vote of a majority of the total authorized votes in an association.”
“Total authorized votes” is defined as the total number of units minus any members who are ineligible to vote because they are not in good standing.

27. AMENDMENTS TO THE BY-LAWS
In addition, the new legislation can be interpreted to allow an association’s board to amend the by-laws withouta vote of the members: (1) if necessary to render the by-laws consistent with the state, federal or local law; or (2) if a ballot provided to the members to reject a proposed amendment fails to receive at least ten percent (10%) of the vote within thirty (30) days.
The amendment provisions only refer to by-laws – not to master deeds or declarations.

28. EFFECTIVE DATE
The provisions discussed above as well as the other provisions in the new legislation take effect immediately(as of July 13, 2017).
However, there is a grace period for the election provisions, which shall be effective on October 1, 2017.

29. What does this mean for my association?
This legislation amends and supplements the provisions of the Planned Real Estate Development Full Disclosure Act(PREDFDA), so it applies to all community associations.
To the extent that the requirements of this legislation conflict with an association’s by-laws, these new provisions will trump the requirements of the by-laws.
Most importantly, all owners within an association now must be considered members of that association with the ability to fully participate in elections of their boards (including the ability to both run for and vote for members of the board) so long as they are in good standing.

30. questions?

31. THANK YOU FOR PARTICIPATING!
Moderator:
Carol Koransky, CPA, MBA
Wilkin & Guttenplan, PC
x120
Speaker:
Ronald L. Perl, Esq.
Hill Wallack LLP
Speaker:
Caroline Record, Esq.
Hill Wallack LLP
Speaker:
Jonathan H. Katz, Esq.
Hill Wallack LLP