Page 20 - NJ Cooperator Winter 2020

20 THE NEW JERSEY COOPERATOR —WINTER 2020 NJCOOPERATOR.COM beckerlawyers.com Morristown | Red Bank 973.898.6502 Winning Team of Construction Defect Litigators Successfully recovered over $170M in Construction Defect Claims for our clients Serving Community Associations for More than Three Decades General Counsel Services Collection of Delinquent Accounts Transition Representation Drafting & Amending Documents Drafting Legal Opinions, Resolutions & Contracts Rules Enforcement, ADR & Mediation Municipal Service Act Enforcement Construction Defect Litigation WE ADVISE, YOU SUCCEED accesspm.com NJ Offices Flemington, Edison, Paramus, Mt. Laurel 908.237.9900 PA Offices Lehigh Valley, Horsham 610.791.1600 SINCERE Est. 1989 In many cases, there is also a question must remember that they do not live in of what rules and regulations passed by a bubble and what they do can adversely the board may cover. In Massachusetts, affect the quality of life of those who live explains Richard E. Brooks, a partner at nearby.” Braintree-based law firm Marcus, Errico, Emmer & Brooks, boards can make rules that govern common areas, but not the interior of condominium units. “If there is a violation of a reason- able rule relating to the common areas, the board can enforce it,” he says. “They can’t make one about what someone does inside their unit, though. Say they might want to limit rentals in any number of ways. They might not want more than a certain number of the total units—say, 10 percent —to be rented. Or they don’t want one person to own more than a certain number of units. That would be a problem. They can’t do that because that’s telling unit owners what they can \\\\\\\\\\\\\\\[or cannot\\\\\\\\\\\\\\\] do inside their unit. Boards can make rules about what you can put on your deck, or where you can park your car, but not who can live in your unit or what or who you can put in your unit. Boards are in charge of common areas of the association.” Persuasion vs. Coercion Boards and managers walk a fine line when dealing with neighbors in residen- tial communities such as co-ops, condos, and HOAs. While the unwrit- ten covenant is to make that extra effort to live with- in both the letter and the spirit of the rules and get along with your neighbors, conflict inevitably erupts. Clearly, the first attempts at getting community members to at least coex- ist harmoniously is to persuade them— nicely—to ‘go along to get along.’ Piekarsky says, “The smartest meth- od is to educate and communicate with the fine on the unit owner’s account and residents regularly. Fining gets people’s it’s a lien and you leave it there, it can be attention because it’s monetary. The ef- fectiveness of revocation of privileges grows. depends on what they are. In a typical association, perhaps the only really ef- fective privilege revocation would be the move the infraction to your association’s pool. Obviously, now during COVID, it’s attorney after multiple fines, the attor- not an effective tool. With both fines and ney will instigate a foreclosure or court revocation of privileges in New Jersey, all injunction and order payment, plus legal residents are entitled to ADR in all dis- putes. The punishment can be challenged nitely pay attention.” by requesting ADR, which must be of- fered under state law.” Hakim agrees. “Generally, I find the boards should never ignore rule-break- most effective way of getting folks to play ing for too long. “Let’s say someone by the rules is to discuss it with them and encourage open communication,” he says. “Obviously, if that does not work, then the threat of enforcement is next, followed by fines, if applicable. Residents Establishment and Effectiveness of Fines The mention of fines brings up one commonly used ‘stick’ that may be em- ployed after the ‘carrot’ has failed to achieve compliance with community rules. “Typically,” says Hakim, “for a fine structure to be upheld by a court, the governing documents—the proprietary lease or bylaws—must permit the enact- ment of it. If it is not permitted, then an amendment to the lease or bylaws is necessary, but may be difficult to obtain, given the voting threshold of many build- ings. Once it is permissible, then a house rule setting the fine structure should be enacted, and a copy delivered to all residents. If a shareholder or unit owner does not pay the fine, it will be added to their account, and must be paid at some point; it doesn’t just go away. I explain to boards that they should maintain the re- cords of that fine to avoid it later being challenged without the building having documentation of it.” According to Brooks, fines are a nec- essary component in the condominium environment. “Fines are the most effective means of enforcement, because people control their behavior relative to their pocketbook. Some challenge fines when they believe they haven’t committed the infraction for which they’re being penal- ized, but if they have done it, though, they tend to pay.” Brooks uses the example of illegal parking. “If there’s evidence of the behavior, like a photo, the person will pay rather than challenge the fine,” he says. “If you put effective because it gets to them, and it “This method also tends to curb the bad behavior,” Brooks continues. “If you fees. At that point, the owner will defi- Brooks also cautions that no mat- ter how large or small the association, LIVING BY THE RULES continued from page 18 “Residents must re- member that they do not live in a bubble and what they do can adversely af- fect the quality of life of those who live nearby.” — Mark Hakim continued on page 22