Page 5 - NJ Cooperator Fall 2020

NJCOOPERATOR.COM THE NEW JERSEY COOPERATOR — FALL 2020 5 QUESTIONS & ANSWERS Legal Q A& Amending Governing Documents and the Radburn Act Q I live in an adult community in South Jersey for 55-and-older to the association’s master deed (some- people. It is a single-family fee times referred to as a ‘declaration’) or the requirement to amend the bylaws—as- simple community with an HOA. Our gov- erning documents were amended in 2003 the Morristown-based firm Becker. “As require. Rather, it provides that wher- after receiving approval of two-thirds of the reader may be aware, the required ap- the members. The governing documents proval of the owners to amend the gov- require approval of two-thirds of the own- ers in order to change any of the govern- ing documents. Our board of trustees is tentimes the vote required to amend the homeowners have the right to amend the pose the amendment, send notice to all indicating that we need to modernize our master deed is two-thirds; whereas, the bylaws by a vote of a majority of all own- governing documents to comply with the vote required to amend the bylaws may ers. In addition, the legislation prohibits and, if less than 10 percent reject the Radburn Law. It is my understanding that only be a majority. this only needs to be done if the required votes for change is in excess of two-thirds would want to modernize their governing instances. of the owners. Am I correct, or do our documents to come into compliance with governing documents need to be changed existing or new laws such as the Radburn bylaws to the extent necessary to render recommend that you consult with your if we currently require two-thirds approv- al? I believe the board wants to amend governing documents are contrary to ex- the documents to require less than two- thirds of the votes to change documents. —Mending Amendments A “The reader does not indi- cate whether the question requirements. pertains to an amendment bylaws,” says attorney Martin Cabalar of suming that is what the reader’s bylaws posed amendment. If 10 percent or more erning documents may differ between the or allows amendment of the bylaws with to require less than two-thirds vote to master deed and bylaws. For example, of- “It is common that an association vote of the owners, except in two specific amendment would pass. Please keep in Act. Generally, where an association’s them consistent with state, federal, and legal counsel to make sure you are appro- isting law, the law would control barring law changes in a manner that renders the requirements of the Radburn Act.” some specific exception in the law. The bylaws inconsistent with law, it may cause Radburn Act, for example, would super- sede anything in your association’s gov- erning documents that was contrary to its not be familiar with new law. Second, the “The Radburn Act, however, does bylaws and send notice of the proposed not automatically reduce a two-thirds amendment to all association members, ever bylaws don’t provide a method for in 30 days, it will be defeated. the homeowners to amend the bylaws, a greater than two-thirds majority, the amend the bylaws, the board may pro- a board from amending bylaws without a amendment within 30 days, the proposed “First, it permits a board to amend the bylaws and not the master deed. Thus, we local law. This is beneficial since when the priately understanding and applying the confusion among the members and even the board members, because they may board may propose an amendment to the together with a ballot to reject the pro- of the owners reject the amendment with- “In sum, if the reader’s board wanted members together with a ballot to reject, mind that this process only applies to the continued on page 19