Page 5 - New Jersey Cooperator January 2019

Legal Q A& NJCOOPERATOR.COM THE NEW JERSEY COOPERATOR — JANUARY 2019 5 QUESTIONS & ANSWERS When the HOA Is Not Doing Its Duty Q We have reason to believe that our 'little community' is not be- ing run as the HOA that it was set up to be. Our bylaws are not being fol- lowed and procedures are not being main- tained. And we seem to be getting extra charges due to our board needing more money 'for bills,' but they don't allow us ac- cess to the fi nancial disbursements to see how that money is being spent. Can you advise us on how to make the necessary changes of our board members and man- ager and turn our community around to the way it started out? —Owners Revolt A “Wow!” says Stuart Li- eberman, an attorney who represents unit owners in community associations for the Princeton- based fi rm of Lieberman and Blecher. “Th is sounds like a bad situation. Wouldn't it be nice if it was an unusual complaint? But it is not unusual. Community associations con- sist of people and behave like people: some are very good, some are very bad, and most fi t somewhere in the middle. If the reader's grievance is true, this homeowners associa- tion may be a very poorly run association. “Rules and bylaws are there for a reason, and that's not just to look pretty. Bylaws, rules, and regulations have the force of 'law.' Th ey need to be followed by the unit owners, the board and the management alike. When new unit owners come into an association, they have a reasonable expec- tation that the bylaws will be followed. “When a board ignores bylaws and rules, it is acting in an arbitrary manner. Instead of conducting business the right way, it is making it up as it goes along. Which may be fi ne if a person lives alone in a single family home and wants to make decisions as such. But it clearly is not fi ne in a community association where everyone who moves in is aware that bylaws exist and must be followed. “Board members are unit owners, just the same as everyone else. Th ere is no spe- cial privilege that allows them to ignore as- sociation bylaws. Just as every other unit owner must also follow the rules and regu- lations, everyone must be on a level playing fi eld. “When a board chronically and mate- rially ignores bylaws, this issue should be raised in writing and at public meetings. Make sure the minutes refl ect these pro- tests. Of course at election time, a new slate of board members may be required to re- place the bad actors. “Judicial relief is available as a last re- sort if chronic, material rule violations take place. Of course the board may argue that these issues must be addressed with alter- nate dispute resolution and your lawyer will have to review the validity of such a contention. In any event, litigation is very costly, oft en with mixed results, which means everything should be done to avoid going to court if that is possible. “Th e reader also alleges that certain fi - nancial records are being withheld. Th ough there are a few off exceptions, usually unit owners have a right to see the fi nancial re- cords. Th is is, aft er all, everyone's money. Assuming the association documents re- quire access to these records, make a de- mand in writing. If the board refuses, de- mand an explanation. If that fails, perhaps a State agency can help you. Perhaps if this goes on without explanation you may have to fi le suit in court. “Th ere is strength in numbers. When widespread rules and fi nancial violations occur, see if your neighbors will join you when you protest. One unit owner will al- ways be described as being 'just crazy,' but it’s hard to say that about 10 owners. And if you need to go to court, the expenses may overwhelm one unit owner, but may be very manageable for 5 to 10 owners. “Finally excessive special assessments may be a sign of either a lot of unforesee- able problems, or just bad planning. If the continued on page 18