We’re only human—no matter how harmonious and tight-knit a community may be, differences and  disputes are bound to happen from time to time. That’s why laws and rules are in place. But, the federalist system of government we  use in this country is far from the most efficient system. Layers and layers of  laws, statutes, and regulations fall on associations, and it's quite literally  impossible to keep up. First there’s the condominium declaration and bylaws. There are the house rules, which can  be separate from the bylaws. Then there are municipal codes and ordinances that  can impact anything from how many trees need to be on the association’s property to plumbing to civil rights issues. On top of that, there are state  laws and statutes drafted and passed by the New Jersey legislature, and almost  constant changes and amendments made; on top of that, there are federal laws  and regulations.  

 Associations and their counsel need to keep abreast of all of these, because  they all affect how the HOA can and should conduct its everyday operations and  relationships. What might seem fair on a federal level could be more  complicated on a state level, and if your documents are not up to date, what  might seem like a silly legal issue can easily spiral out of control. In order  to avoid trouble and keep the peace, association and building boards should at  least know the general lay of the land, and what kind of legal landmines are  out there.  

 The Condo Act

 Compared to other states, New Jersey has a pretty clear picture when it comes to  laws regarding condominiums, thanks to the New Jersey Condominium Act, also  known as the Condo Act.  

 At its core, the Condo Act provides a blueprint for associations, and  standardizes many important procedures. “It is rare but a few condominium associations have governing documents that  direct the board members to conduct alternate dispute resolution hearings in  contradiction of The New Jersey Condominium Act which states that a 'person  other than an officer of the association, a member of the governing board or a  unit owner involved in the dispute shall be made available to resolve the  dispute.' In these types of cases, the association should ignore the  inconsistent rule or restriction and comply with the law,” says Mary Barrett, a shareholder attorney with the law firm of Stark & Stark in Lawrenceville. If you're curious about whether state law trumps  associations declarations the simple answer is that it depends, and there's no  obvious way to tell unless you memorize the Condo Act.  

 Even though most of the Condo Act clarifies simple procedural processes for  boards and associations, it's still important to keep up to date. “The association’s legal counsel should advise the board of trustees of the new law and how it  impacts the association. The board should be advised that the new law will  likely trump any existing rule of the association that conflicts with it. Legal  counsel can help the board revise those rules to bring them into conformity  with any newly enacted laws. It is actually rare that a new law will have  substantial impact on an association’s governing documents. However, new case or a court’s interpretation of a long-standing statute frequently affects associations,” says Richard Linderman, a partner at the law firm of Herrick, Feinstein LLP in  Princeton.  

 What confuses boards more is that declarations can apparently show very clear  and obvious meanings of rules, and board members might think they're  interpreting basic rules correctly, when in fact they aren't, for instance, if  their declarations say that boards can make decisions without a building vote.  In the past, this was perfectly legal, but “open meetings are generally covered by state law. A few years ago, the New  Jersey Legislature obligated homeowner associations to open meetings where  binding decisions are made by the governing board. There are exceptions for  items that require confidentiality or privacy, but for the most part those  binding decisions have to be made when open to the members. Prior to that law,  there were no requirements generally one way or the other. There was no  requirement that meetings be open, but there were no provisions that they  needed to be closed meetings. There wasn't necessarily a conflict, but the law  obligated those board meeting decisions be open to the members,” says Ronald Perl, a partner at the law firm of Hill Wallack LLP in Princeton.  

 I’m Conflicted

 The conflicts that arise among condo owners come in many shapes and sizes, but  most of time, when you peel away at the root of the problem it can be traced to  a failure to recognize the Golden Rule: treat others as you would like to be  treated.  

 In the case of U.S. law and condo associations, the rule is called the one  member rule, which says that by agreeing to live in a community owners must  acknowledge that there are not different statuses or classes. Everyone is to be  guaranteed the same level of livability no matter their circumstances—whether they're renters, disabled, or have children. “The Fair Housing Act prevents associations from discriminating against families  with children by imposing restrictions, for example, on the amount of time  children can be at the pool. He says that associations cannot have adult-only  pool hours, except if they are qualified as senior housing. Basically, when  either state or federal law deals with these subjects, the association's  governing documents have to step aside and the law in controlling,” says Perl.  

 Discrimination can be a scary word for many condo owners and board members, and  many people assume discrimination cases are complicated and expensive, and that  can sometimes be the case. But, if handled properly, discrimination-related  conflicts can be resolved as easily as any other issue. “The Fair Housing Act amendments say that associations have to allow  architectural changes necessary to accommodate someone's handicap, for example,” says Perl. “If they need a ramp to gain access to their unit, the association is not free to  deny them the ability to construct that ramp, even if it goes against a  restriction. The only time an association can deny something like that is if  the accommodation requires an extraordinary amount of money for the  association, or interferes with the rights of others. So in the case of the  handicap ramp, if the owner is on the second floor, and a ramp would go across  windows, or interfere with other owners, they wouldn't have to permit it.”  

 Perl goes on to say that other extensive accommodations—such as installing an elevator for a disabled resident on an upper floor—might be found to be 'unreasonable,' depending on the association and the  request.  

 Threats of discrimination make for juicy headlines but the pros mostly agree  that issues between residents are usually resolved easily and responsibly. “Unless the newly created law is ambiguously worded or otherwise unclear, I have  not found that they cause complicated disputes,” says Linderman. “Boards generally understand and accept that state laws will overrule and trump  the regulations contained in their governing documents. Older associations—those which may have been established in the 1950s or ‘60s—may have seen certain rules and restrictions stricken down numerous times in the  past decades. Most of the new laws that have come into play in the last two  decades are not that controversial and therefore have not faced much resistance  from communities or their boards,” says Linderman. But, boards need to exercise smart leadership in being able to  make exceptions so that they don't get rack up legal fees just because they  held a somewhat insignificant rule sacred.  

 Federal Law Prevails

 U.S. law can conflict and, ultimately, trump building declarations and bylaws  not just in the case of discrimination, but also with basic regulations, and  the First Amendment as well. “Recent state and federal laws allowing the flying of the American flag within  associations or the placement of yellow ribbons. In many cases, those laws  trumped association rules which prohibited the posting of flags of any kind  within associations,” says Linderman.  

 Boards and their counsel also need to stay abreast of regulations that aren't  even passed by Congress, but can override any conflicting house rules. “There is a federal law that prohibits associations from enforcing architectural  restrictions on satellite dishes when they are individually-owned,” Linderman continues. “Historically, associations control the placement of antennas on property, but  the Telecommunications Act said that in exclusive areas, places in the  condo/co-op/HOA that are reserved for the exclusive use of that particular  owner, there is a federal law that says any provision in an association's set  of documents contrary to that is unenforceable.”  

 “Newly created legal authority can bring clarity to a matter or make it more  confusing than ever; it depends on the drafting of the law and the subject  matter. Whenever a law brings significant change, there is a potential for  disputes and litigation. This is increased if people have a lot to gain or lose  by application of the law,” says Barrett.  

 That's why boards should have a firm trust in the judgment and knowledge of  their attorneys. If they don't understand something, they can't be afraid to  say so, and if they think they understand something fully, they might not at  all. The best attorneys are ones who want to keep conflicts outside of the  courtroom. Make sure you have an attorney who does not make everything a  lawsuit, and keep those declarations and bylaws as up to date as possible.    

 Raanan Geberer is a freelance writer and a frequent contributor to The New  Jersey Cooperator. Editorial Assistant Tom Lisi contributed to this article.