Page 5 - New Jersey Cooperator January 2019
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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

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