Elysa D. Bergenfeld - New Jersey Law Blog

Can Associations Ban Religious Symbols and/or Flags From Their Association?

Elysa D. Bergenfeld — Tue, 09 Nov 2010 07:35:58 -0500

The Supreme Court of New Jersey addressed this situation in A Committee For A Better Twin Rivers, v. Twin Rivers Homeowners' Association. In the Supreme Court's decision, authored by Justice John E. Wallace, Jr., the Court determined that even in light of New Jersey's broad interpretation of its constitutional free speech provisions, the "nature, purposes, and primary use of Twin River's property was for private purposes and did not favor a finding that the Association's rules and regulations violated plaintiffs' constitutional rights." The Court found that "plaintiffs' expressional activities were not unreasonably restricted" by the Association's rules and regulations. Finally, the Court held that "the minor restrictions on plaintiffs' expressional activities were not unreasonable or oppressive, and the Association was not acting as a municipality."

The Twin Rivers Court found that "the Association permits expressional activities to take place on plaintiffs' property but with some minor restrictions". The Association must weigh the owner's right to free speech with the Association's right to private property and the right to promulgate reasonable rules and regulations. Any restrictions on religious signs, however, must be reasonable as to time, place and manner. For example, if the Association’s board wants to restrict any religious signs and/or symbols, the Board needs to determine rules which will apply to all religious sects across the board. We would not suggest banning mezuzuts or a cross, but could suggest a size restriction with regard to any and all religious signs and/or symbols. In addition, we would suggest the banning of any derogatory or hate sign which would be seen as discriminatory or racial. A swastika would certainly be seen as such and should be banned. With regard to any common element, the Board can make reasonable restrictions.

With regard to the banning of the American Flag, please note there is a prohibition in the New Jersey Planned Real Estate Development Full Disclosure Act (“PREDFDA”), found at N.J.S.A. 45:22A-48.1. PREDFDA restricts associations from prohibiting the display of the U.S. flag, yellow ribbons and/or signs in support of troops unless the display of any of the above threatens public safety, restricts necessary maintenance activities, interferes with the property rights of another or is conducted in a manner inconsistent with the rules and customs deemed the proper manner to display the flag.

The Top Five Ways Condominiums Get Into Trouble

Elysa D. Bergenfeld — Fri, 13 Aug 2010 10:11:17 -0500

1. Condominiums always assume any interior damage to a unit is NOT its responsibility. It may be. The board and management must investigate and determine the cause and the surrounding facts regarding the damage. If the Association was negligent, and the damage was proximately caused by that negligence, the Association could be responsible for the interior damage to the unit. Every complaint in this regard should be handled with that in mind and investigated.

2. Boards and/or Management often sign vendor proposals and think they ARE NOT contracts as a result. An agent’s execution of a vendor proposal constitutes an acceptance of the terms laid out by the contractor and creates a binding contract. We suggest not signing those proposals until your attorney reviews same and has advised you regarding any issues related to those terms. Your attorney may want to draft his own contract for the association’s protection.

3. Condominiums often charge late fees on late fees. This practice is not legal and New Jersey Courts will not award them if challenged. New Jersey law permits the charging of late fees when the association’s governing documents allow for same. The Association may charge late fees for a payment that is late every month, or missed, but not because there is a continuing balance.
4. Condominiums are required to create two accounts during a bankruptcy; a pre-petition account and a post-petition account. Many associations fail to do this. This is a violation of federal bankruptcy law and can get associations into trouble. Bankruptcy only discharges the debt owed prior to the bankruptcy filing. A debtor who files bankruptcy will still be responsible for fees incurred after the filing. The association is responsible for splitting the account into a pre-petition account and a post-petition account and having an accurate accounting for same.

5. Condominiums are required to provide owners with a list of delinquent owners if asked. Many condominiums fail to do so in violation of the New Jersey Condominium Act.

Foreclosure Vs. Money Judgment

Elysa D. Bergenfeld — Thu, 12 Jun 2008 10:45:26 -0500

Owners in a condominium or homeowners association must understand that non-payment of maintenance fees will result in either foreclosure or a personal judgment against them. Maintenance fees are the lifeline of community associations and these associations would not survive without them. When an owner does not pay his/her maintenance fees, he/she is a delinquent owner. The Board will then determine at what point the delinquency is referred to an attorney’s office for collection. Generally, the collection process begins with a collection letter. The Board should decide quickly thereafter, if payment is not made, what avenue of collection to take. There are two options: foreclosure or money judgment.

In the case of foreclosure, the end result is a sheriff’s sale and the unit is ultimately taken from the owner. The Association is rid of an owner who does not pay his/her maintenance fees. These non-paying owners are a financial drain on the community and not beneficial for the financial health and well being of the community.

In the case of a money judgment complaint, the Association will end up with a personal judgment against the owner. So long as the owner has a bank account, the Association may levy the account. If the owner is employed, the Association may also garnish the owner’s wages. However, if the owner is not employed and has no assets, there may be no way to collect on the judgment and, therefore, the Association has an owner who continues to not pay maintenance fees and a judgment it may not be able to collect. In that event, we can docket the judgment with the Superior Court which will remain on the debtor’s credit for twenty (20) years. These are all necessary considerations when making collection decisions.

How the Fair Housing Act Affects Community Associations

Elysa D. Bergenfeld — Thu, 19 Oct 2006 09:00:31 -0500

As the number of individuals living in community associations has sky-rocketed in recent years, many of these associations have enacted rules and regulations that prohibit or restrict activities based on age. In many cases, these rules attempt to regulate when and where children can play and participate in activities within the community. However, what you may not know is that many of these rules can be illegal – and therefore unenforceable – under the federal Fair Housing Act.

The Fair Housing Act, 42 U.S.C. § 3601 et seq., prohibits discrimination in housing and makes it illegal to refuse to provide housing or housing-related services based on numerous classes, including race or color, national origin, religion, sex, handicap, and familial status. As amended, the Act is applicable to condominium associations and townhouses, as well as garden apartments, multi-family dwellings and dormitories. The penalties for violations of the Act can be severe; up to $1,000.00 or a period of incarceration for one (1) year, or, if bodily injury results from the violation, the penalty could increase to up to $10,000.00 and incarceration for up to ten (10) years.

Pursuant to Section 3602(k) of the Fair Housing Act, “familial status” is defined as “one or more individuals (who have not attained the age of 18 years) being domiciled with: (1) a parent or another person having legal custody of such individual or individuals; or (2) the designee of such parent or other person having such custody, with the written permission of such parent or other person.” As such, rules that seek to prohibit children from participating in certain activities within the community may be prohibited by the Act. For example, a rule that says that children under the age of thirteen (13) are not permitted to swim at the community pool without an adult may be in violation of the Act, and, as such, unenforceable. Other examples of rules that may violate the act include: (1) prohibiting children under the age of thirteen (13) from the clubhouse, weight room or other facilities at certain times; and (2) allowing only adults to swim in the community pool during certain hours. Ultimately, under the Fair Housing Act, an association cannot prohibit the actions of an entire class of people unless a showing is made that the reason for such prohibition is the health or safety of those particular people.

Related to question of prohibitions based on age is the legality to of “age-restricted active adult (55 years and older) communities”. The answer is that Fair Housing Act, Section 3607, provides an exemption for these types of communities, making them legal if certain criteria are met. For an “age-restricted community” to qualify under this exemption, it must have eighty (80%) percent of its units occupied by at least one person whom is fifty five (55) years or older, the community must publish and strictly adhere to policies and procedures that demonstrate the intent required under Section 3607 (i.e., intent to restrict housing to individuals over age 55), and the community must comply with the rules issued by the federal and state officials for verification of occupancy.

While the Fair Housing Act provides that not all age-based rules will be considered illegal, community associations wishing to impose such restrictions must assure that any restriction based on age is based on health or safety concerns of the individuals. If your association has such restrictions, it is important to consult your management company and/or legal counsel to ensure compliance with the Fair Housing Act, and to avoid potential violations, fines and/or other legal action.

Technorati Tags: New Jersey : Community Associations : Fair Housing Act

"Pedophile-Free Associations" - the Wave of the Future or Unconstitutional?

Elysa D. Bergenfeld — Thu, 06 Jul 2006 08:45:39 -0500

Municipalities in New Jersey are taking action now more than ever to protect their residents – especially their children – Drug-Free School Zones, DNA identification programs for children, criminal background checks for youth athletic league coaches and now “Pedophile-Free Zones”. In May 2005, Hamilton Township, New Jersey passed a “Pedophile-Free Zones” Ordinance that may be the strongest in the nation. The Ordinance prohibits convicted sex offenders from living within 2,500 feet of where children congregate, such as schools, parks and playgrounds. In doing so, Hamilton Township followed the lead of towns and municipalities in over fourteen other states, and potentially many more. Can it be that far off that community associations will employ similar methods to protect its members – especially its youngest and most vulnerable?

In fact, some already have. In Mulligan v. Panther Valley Property Owners Ass’n, 337 N.J. Super. 293 (App. Div. 2001), the New Jersey Appellate Division addressed the issue of whether a condominium association could ban all “Tier 3” offenders – the highest level sex offenders in New Jersey – under “Megan’s Law”, N.J.S.A. 2C:7-8(c)(3). The Trial Court upheld the association’s amendment precluding such individuals from residing withing the community. While the Appellate Division did reject Mulligan’s argument that such a restriction unlawfully infringed on her right to sell or lease her property, ultimately the Court refused to address the validity of this amendment due to an insufficient record. However, the Appellate Division left two issues unanswered – which are now before the New Jersey Supreme Court in Committee for a Better Twin Rivers v. Twin Rivers Homeowners’ Association (discussed recently in several blogs on this site) – namely: (1) whether community associations perform “quasi-municipal” functions and must be considered “quasi-municipalities”; and (2) whether the Court must analyze amendments to associations’ governing documents based on the “business judgment rule” or based on a higher, constitutional standard. Ultimately, the constitutionality of such “Pedophile-Free Zones” in community associations may turn on the Supreme Court’s decision in Twin Rivers.

Critics of “Pedophile-Free Zones” and “Pedophile-Free Associations” argue that such restrictions are unconstitutional, stating that towns and associations are essentially making it impossible for offenders to live legally in most urban communities, which have a multitude of schools, parks and playgrounds. Moreover, once in place, these restrictions may prove expensive and difficult – if not impossible – for a community to enforce. The basis of the restriction is evident – protection and safety. However, does it provide a false sense of security? As critics have pointed out, banning the most serious of sex offenders from owning or living in your community does not preclude a sexual predator from entering your community. Many communities have shared facilities, such as clubhouses, pools and exercise facilities, and other individuals such as maintenance contractors and deliverymen have access to the community and children on a daily basis. Moreover, these concerns over protection and safety may not be strong enough to outweigh the constitutional challenges such restrictions may soon face. Convicted sex offenders – through legislation – lose certain constitutional rights, including the right to vote or the right to bear firearms. Whether these additional restrictions would violate the constitutional rights of an individual to own property as well as other rights remains to be seen.

Technorati Tags: New Jersey : Community Association