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A recent trial court decision in Ocean County held that all roadways within a qualified private community – such as a homeowners association or condominium association – which provide access to units and function as roadways are eligible for reimbursement under the Municipal Services Act.  This includes third tier roadways which municipalities have previously classified as “driveways”.  

The Municipal Services Act ("MSA”), also known as The Kelly Bill, requires a New Jersey municipality to reimburse a qualified private community for the removal of snow, ice and other obstructions from roads, street lighting and removal of solid waste that the community does on its public roads.  If a municipality does not want to pay reimbursements, the MSA permits the municipality to provide these services in the same way it does on its own roads.  The MSA was intended to relieve private community residents of the burden of paying double for municipal services: once in their taxes and then again as part of the community association assessments. 

In this case, a gated community association in Lakewood ("Association") had about 16 miles of paved roads, all of which were private and divided into three tiers.  The municipality reimbursed for the first and second tiers but not for the third tier roads which it labeled as "driveways" and ineligible for reimbursement under the MSA.  The third tier roads were unnamed roads, about 28 to 30 feet wide, that accessed most units in the development.  The Association asserted that these third tier roads looked like roads, functioned like roads, and should be reimbursed like roads under the MSA. 

The court agreed with the Association and held that the third tier roads were entitled to reimbursement under the MSA.  In making this determination, the court stated that the MSA requires that the terms "roads" and "streets" be given their normal meanings. The roads entitled to reimbursement under the MSA are those which provide basic means of ingress and egress to units.  The Association’s third tier roads functionally serve as roads and allow access to units; thus, common sense demands that they are roads and not driveways. 

If you would like more information about the Municipal Services Act or would like to discuss how your community association can increase its reimbursements under the Municipal Services Act based on this decision, please contact us.

The Super Bowl is fast approaching and most football fans are looking forward to a great game.  For many condominium associations located near MetLife Stadium, where the Super Bowl will be held on February 2, 2014, it won’t be over soon enough.  Why so?  There have been reports of unit owners renting (and tenants subleasing) their units on a short-term basis during Super Bowl, some for thousands of dollars a day.  The majority of these short term tenants will not be any trouble and will fly under the association’s radar.  However, a short term tenant that has no ties to the building or the unit owner may not be interested in association rules; combining that with football, drinking, and winning (or losing) fans has the potential for disturbances and property damage.

If your condo permits short term rentals, allows the provision of hotel services, or does not care about security, property damage, and loud parties, read no further.  But if these are not permitted and you do care what happens to your building during Super Bowl, it’s time to make a plan.

First, read the use restrictions and leasing restrictions in the association’s master deed and any rules and regulations adopted by the association.  Usually rentals of less than 180 days and the provision of hotel services are prohibited.  Unit owners who lease their units may be required to submit a written lease that references the governing documents in some way.  There may be fees required for leasing. 

Most importantly, you will need to tell unit owners that these restrictions and policies exist and will be enforced during Super Bowl.  Tell them in many different ways (email blast, phone blast, sign by the mailboxes, etc.) and tell them often.  If the association is permitted to fine, make sure unit owners know about the fine.  Some associations have a fixed fine amount but if yours can be any amount, set the fine amount so that it fits the violation. 

Consider establishing new rules and regulations that will address potential concerns with these short term rentals.  It may be worthwhile to hire additional staff during this time period to check access cards at the gym, parking lot, and other facilities.  You may want a security guard on site to handle noise complaints and any complicated situations. 

There is still time to hold a special meeting of the board at which new policies are adopted and to give notice to unit owners of these policies.  If your condominium association needs help in interpreting the leasing requirements or in adopting rules to get ready for Super Bowl, please contact us.

Community associations with unenforced deed restrictions can enforce them – even after 82 years!  So says a Morris County Superior Court Judge after a recent trial in a case entitled Unfair Share Lake Arrowhead 2010, Inc. v. Lake Arrowhead Club, Inc.

While the association in this case was a precursor to the modern community association and did not have a declaration of covenants, conditions, and restrictions, the deed to each of its 242 homes included an easement granting "the rights to use Lake Arrowhead and roads" subject to rules and regulations created by Lake Arrowhead Club, Inc. ("Association"). The Association, which was created in 1927, was obligated to maintain roads, parks, a clubhouse, tennis courts, and other property.  For 82 years, membership and payment of assessments was treated as voluntary which resulted in homeowners separating into two groups: club members (who paid annual assessments and used the lake, recreational facilities, and roadways) and non-club members (who did not pay annual assessments, did not use the lake or recreational facilities but still used the roadways).  These voluntary assessments were the Association’s only revenue until 2009.  In 2009, the Association imposed an assessment of $324 per year on all 242 homes; those homeowners who chose to join the club to use the recreational facilities were required to pay an additional fee as well.  The 2009 assessment led 73 community members, who paid an assessment, to file litigation seeking to have the deed restriction terminated because it had never been enforced against them. 

First, the court determined that the plaintiff made two key procedural errors: (1) the plaintiff, a corporation formed by the 73 homeowners had no standing and (2) the case should have been brought as a declaratory judgment action, not a quiet title action.  Notwithstanding this, the court went beyond these issues to make a determination on the merits of the case.

The court held that the Association did not abandon, relinquish, waive or give up its rights under the easement.  The easement allowed homeowners to use the lake and roads subject to the Association rules and regulations.  While the Association made it a rule from the outset that only club members would pay assessments to maintain the lake, roads and other property, the Association had the right to change that rule to impose assessments on all homes in the community.   In other words, the Association "did not abandon its right [to impose assessments], but chose to exercise that right in a different fashion."  The court cited the settled principle of easement law that "mere non-use of an easement will not suffice to destroy the right."  In order to constitute an abandonment of an easement, the facts must clearly establish an intention to abandon by clear and convincing proof.  The court found none in this case.

This case was a positive outcome for community associations but reinforces the need for diligence in knowing about and enforcing easements and other deed restrictions.  While restrictions that are clearly set forth in a declaration or master deed will be more easily enforced than the easement in this case, all community association managers and board members must still be mindful of them.  If your community association has any concerns about its deed restrictions, we would be happy to assist you in evaluating your obligations.  

Many community associations are struggling with their highest delinquency rates ever and, with foreclosures stalled and housing values still recovering, there are limited ways to address persistent debtors. At the same time, it is discouraging to association members that delinquent unit owners continue to enjoy common services such as snow removal, street lighting, roadways maintenance, etc., while not contributing toward the cost of providing them. Unit owners and their tenants who continually defy association rules are similarly frustrating to members. Towing the vehicles of these delinquent and noncomplying unit owners – and their tenants – may provide a strong incentive to pay and/or conform. 

In order to tow vehicles, an association must first ensure that it has the authority to do so. Many governing documents permit the association to suspend a unit owner’s right to use the common property for delinquency and rule violations. While an association may already be withholding pool passes or disabling clubhouse access fobs, suspending the right to park in common property parking areas may also be permissible. Once a unit owner’s privileges are properly suspended, an association may then tow the owner’s vehicles parked on the common property. Do not confuse common property with limited common property; for this purpose, there may be an important distinction. 

Associations towing vehicles from their private property must also comply with the Predatory Towing Prevention Act. Among other requirements, the Act mandates warning signs; these signs must be at least 36" x 36" and be conspicuously posted at all vehicle entrances. (No sign is required for an association to tow a vehicle blocking access to a driveway or a garage.) The signs must also state the purpose for which and time during which parking is permitted, that unauthorized parking is prohibited, that unauthorized vehicles will be towed at owner’s expense, and information on the towing company. Another requirement of the Act is that the association must have a written contract with the towing company.  

Towing vehicles can be an important enforcement tool for associations. But towing should only be done after thorough planning by the board of directors and consultation with legal counsel. If you want to know if towing is right for your community and learn how to implement a towing program, we would be happy to assist.    

The board of directors of a community association may have multiple meetings throughout the year.  When these board meetings are "open" the members of the association are entitled to attend and observe.  Having the right to attend a meeting is meaningless unless a member knows when and where the meeting will be held. Therefore, in accordance with N.J.A.C. 5:20-1.1, et seq., a board must ensure that proper notice requirements are followed.

Adequate Notice.  Members of an association must be given adequate notice of open board meetings.  In New Jersey adequate notice is defined as "written notice, at least 48 hours in advance, giving the time, date, location and, to the extent known, the agenda of any regular, special or rescheduled meeting, other than a conference or working session at which no binding votes are to be taken. . .."  This written notice must be:

  • posted prominently in at least one place on the property that is accessible at all times to all unit owners, such as a clubhouse bulletin board;
  • mailed, telephoned, telegrammed, or hand delivered to at least two newspapers designated by the board or association to receive such notices because they have the greatest likelihood of informing the greatest number of unit owners; and
  • filed with the business office of the association. 

Annual Notice Requirement.  There is also an annual notice requirement.  At least once each year, within 7 days following the annual meeting, the board must notify the association members of a schedule of the regular meetings of the board to be held during the year.  That schedule shall include the location, if known, and the time and date of each meeting.  This notice to the members is satisfied by posting on the property, delivering to newspapers and filing a copy with the association’s business office (see above for more information on each of these methods).  For example, if the board determines it will meet on the first Monday of each month, it must post (and maintain) this schedule on the clubhouse bulletin board, deliver it to two newspapers and file it with the management office.  If the annual schedule is later revised, within 7 days following the revision, the new schedule must be posted, delivered and filed again.

If the annual notice schedule is posted, delivered and filed as required, and the location, time and date of the meetings are in the notice, the additional 48 hours advance notice is not required.  Homeowner involvement is important to a community association, however, and boards should act transparently in conducting association business so giving the additional notice is advisable.  

In fact, these are the minimum requirements for giving notice; a board that wants to give extra notice by an email blast to members or by posting a sign on the clubhouse lawn the day of the meeting may certainly do.

Emergency Meetings.  On occasion a board must call an emergency meeting and does not have time to give 48 hours notice.  If waiting 48 hours for the purpose of providing notice would likely result in substantial harm to the interests of the association, notice is adequate if it is provided as soon as possible following the calling of the meeting by posting, delivering, and filing the notice.  In this case, the meeting must be limited to the emergent matter.

Other Types of Meetings.  For meetings other than open board meetings, these notice requirements may not apply.  Members of the association are not entitled to attend executive session or working session meetings of the board and, therefore, no notice is required to be given to them for such meetings.  Meetings of the members, such as an annual meeting, are not the same as open board meetings and these notice provisions do not apply.  The notice requirements for the annual meeting and other meetings of the members can usually be found in the association’s by-laws.

Giving proper notice for an open board meeting is important and associations are well advised to strictly follow these requirements as well as additional requirements set forth in its governing documents. 

Many homeowners and board members – and even managers and attorneys – confuse the different types of meetings that are held throughout the year for community associations.  There are two types of community association meetings and there are important differences between the two.

Member Meetings.  The members of a community association (the homeowners) conduct their business at an annual meeting and any number of special meetings. 

  • Annual Meeting.  The annual meeting of the members is the time when members elect new trustees, vote on issues, and are informed of certain association business.  The association budget may be presented, officers may report on the state of the association, and committee chairs may give updates on their activities.
  • Special Meetings.  A special meeting of the members would be any other meeting at which the members take some action, usually by voting.  For example, a special meeting of the members might be held to vote on a special assessment or to vote on amendments to the by-laws. 

It should be no surprise that member meetings are for conducting member business.  The board of trustees does not conduct its business at a meeting of the members. While the president of the board may chair the member meeting and the other officers may assist by taking minutes or presenting reports, this is not the time for the board to approve vendor contracts, adopt resolutions, or conduct other board business. 

Board Meetings. The association board conducts its business at board meetings which may be public or private.

  • Open Board Meetings.  An open board meeting is one in which the members of the association are entitled to be present and observe the board conducting its business.  All binding votes of an association board – with limited exceptions – must be made at an open board meeting. 
  • Executive Board Meetings.  An executive board meeting is one in which the board members meet without the members of the association present to discuss and vote on confidential matters.  The board may also discuss general association matters at a working session board meeting, providing no binding votes are made.       

Concurrent Meetings.  Boards may find it convenient to meet on the same day as a member meeting or to conduct an executive board meeting on the same day as an open board meeting and there is no reason they cannot do so. While different types of meetings should not be combined into one meeting, it is acceptable to have separate meetings held concurrently on the same date as long as adequate notice and all other requirements for each meeting are met.  Additionally, separate agendas should be used and separate minutes should be taken for each meeting.

The below article is a re-print of an article which was previously published in the June 2010 issue of Community Trends Magazine.
The scenarios are predictable and common.  Faced with a request for alternate dispute resolution (“ADR”), the association’s property manager digs up the ADR policy to find it is full of legal terms and confusing procedures.  Often times, the ADR committee members do not know how to start or what is expected, and the property manager can spend hours preparing the ADR committee (the members of which will likely change before the next hearing).  A call goes out to the Association’s legal counsel to guide them through the process.  Scared of the procedures, both sides “lawyer up” and might as well be in litigation.  In all of these cases, ADR is an annoying, time-wasting, costly enterprise for the Association and, too often, a disappointment for the homeowner involved because it elevates the dispute and polarizes the parties.  It is time for community associations to implement practical ADR.  If they do, they will find the ADR process much less painful, both financially and emotionally.
What is Practical ADR?
Practical ADR is a policy of dispute resolution that is easy, economical, and efficient.  It is a common sense way to address disputes.  It empowers the parties to participate in finding solutions to an issue instead of battling it out to find an ultimate winner.  Practical ADR in community associations means do-it-yourself mediation. 

There are two basic types of ADR.  Mediation is a process in which a neutral third party, with no power to impose a decision, helps disputing parties to reach an agreement.  (See Black’s Law Dictionary.)  Arbitration, on the other hand, is a process which also uses a neutral third party but this third party, an arbitrator, has the power to render a decision after a hearing.  (Id.)  Both mediation and arbitration can be used for any type of dispute: from the very complex to the most basic.  But simple mediation best meets the needs of community associations by providing a quick and easy process that focuses, not on establishing who is right and wrong, but on how to resolve differences. Ultimately, this is what the law requires.  

New Jersey Law Requires ADR
The law in New Jersey is simple.  Community associations are required to “provide a fair and efficient procedure for the resolution of disputes between individual unit owners and the association, and between unit owners, which shall be readily available as an alternative to litigation.”  N.J.S.A. 45:22A-44(c); N.J.A.C. 5:26-8.2(c).  The New Jersey Condominium Act (“Condo Act”) has a similar requirement.  (See, N.J.S.A. 46:8B-14(k).)  The Condo Act also prohibits board members from serving as a mediator or arbitrator by stating: “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.”  N.J.S.A. 46:8B-14(k).  This prohibition constitutes a basic aspect of fundamental fairness and should be adhered to by all community associations, not just condominiums. 

Because New Jersey law does not require any specific procedure for ADR, community associations should simply ensure they provide a fair process which also meets the requirements of the association’s governing documents. 

The Association’s Governing Documents May Have Specific ADR Requirements.
The governing documents for most community associations do not address ADR except to say that it must be provided.  In recent years, certain sponsors have been more specific with regard to ADR policies.  These sponsors, and their lawyers, may believe highly detailed ADR policies help community associations or protect homeowners; more often than not, they are a burden that increase costs to all and help nobody.  When the bylaws are very specific, practical ADR may not be possible without an amendment.  Fortunately, homeowners are likely to see the benefit of a well written practical ADR policy. 

Implementing Practical ADR
The first step in implementing practical ADR is to make a fresh start: with your attorney’s approval, toss out your association’s existing ADR policy.  The second step is to review the association’s governing documents to determine what specific processes are absolutely required, if any.  The third step is to develop a fundamentally fair policy utilizing simple mediation that adheres to the association’s obligations under the law and the governing documents.

Dos and Don’ts of Practical ADR       
DO understand what the law and the association’s governing documents require. The ADR policy must be formed around those basic requirements.  Use these as a framework.     

DON’T adopt a policy you do not understand and cannot reasonably follow.

DO have a clear, simple, written policy.  The ADR policy should describe notice and scheduling requirements, the hearing process, and what happens when the hearing is completed.  If, after an ADR hearing, you find the process is deficient in some way, revise the policy. 

DON’T let the lawyers litigate during ADR.  While a homeowner should be entitled to have a lawyer at his side during the ADR hearing, and the Association may want to do the same, the lawyers should allow the parties to mediate the dispute. 

DO keep the association’s lawyers informed.  While an association’s lawyers should always be kept informed about disputes, the lawyers need not be involved in every single ADR hearing.  
Disputes involving serious legal issues like housing discrimination, handicapped parking or access, violent or criminal acts, and threats of litigation should always be vetted by legal counsel before moving to ADR. 

DO consider using the board members as a valuable first step in resolving disputes.  While the Condominium Act does limit the participation of officers and board members in the dispute resolution process, the board can serve an important role.  Often a disgruntled homeowner will just want to vent or simply does not understand a policy; spending 15 minutes with the board may lead to resolution of the dispute.  Such a meeting will not discharge the Association’s obligation to provide ADR, however, so if a meeting with the board does not resolve the problem, ADR will still have to be offered. 

DON’T put the homeowners on trial.  Using a process with a finder of fact, such as an arbitrator or ADR panel inevitably leads to a mini trial.  When a “verdict” is at stake, the focus is on “winning” and not resolving the dispute.

DO focus on resolving the dispute through simple mediation.  Each party can present a position and support for that position.  The neutral mediator can talk to the parties separately and together and try to find common ground or areas of compromise.  If the dispute cannot be resolved after a fair and efficient procedure, the parties simply go their separate ways–sometimes the dispute fades away and sometimes it moves to litigation–but the obligation for ADR will have been properly discharged.

DON’T assume you need a professional mediator; dispute resolution is a fact of life and something we all do every day.  Professional mediators are an extremely valuable asset in many situations but they are not necessary for most community association ADR hearings.

DO set time limits and enforce them.  Practical ADR for a community association, unless very complicated, should rarely take more than an hour. 

DO start implementing practical ADR for your practical association now

If a New Jersey common interest community association tows vehicles from its private parking areas and roadways, it should be complying with the Predatory Towing Prevention Act (“Act”).  Signed into law in October 2007, the Act primarily increases oversight of tow companies but also regulates a private property owner in towing vehicles from the premises without the vehicle owner’s permission.  An affordable housing community association is considered a “private property owner” and must comply with the Act.

Many of the provisions of the original Act were particularly problematic to community associations, and the Act was amended in 2009 with changes that benefited the communities.  Common interest community associations should know the following before towing vehicles from their properties:  

  1. The tow company must have a towing contract with the community association. 
  2. The tow company must be in compliance with the Predatory Towing Prevision Act
  3. Signs must be posted.  If towing from unassigned parking spaces or other common elements the signs must be at least 36 x 36 inches in size and conspicuously posted at all vehicle entrances to the property, and must include the following information:

the purpose for which parking is authorized and time during which parking is permitted;

text stating that unauthorized parking is prohibited and unauthorized vehicles will be towed at the owner’s expense;

the name, address, and telephone number of the tow company;

the charges for the towing and storage of vehicles;

the address of the facility where towed vehicles can be redeemed and the time during which vehicles can be redeemed; and

the contact information for the Department of Community Affairs.

  1. The signage requirement is simplified if a residential affordable housing community association is enforcing parking in assigned spaces that are clearly marked as assigned and the community association has specifically documented approval authorizing removal of a particular vehicle.  The simplified sign required in this case must be conspicuously posted at all vehicular entrances and must state that unauthorized parking in an assigned space is prohibited and unauthorized vehicles will be towed at the owner’s expense.  The sign must provide a telephone number enabling vehicle owners to immediately obtain information on towed vehicles.  The specific dimension of the sign is not specified in the Act, but it must be easily seen by the public. 
  2. No sign is required if the vehicle to be towed is blocking access to a driveway or garage entrance.
  3. Vehicles must be towed to a secure storage facility located within a reasonable distance from the community association.  
  4. A property manager or board member does not need to be present when towing occurs (although the tow company may have its own requirements). 

While the Act has been relaxed slightly with regard to community associations, there are still important legal requirements that must be carefully followed.  To ensure your community association is in compliance with the Act, you should consult with your legal counsel.


While many people believe that exterior modifications in a common interest community must be pre-approved by the board of trustees, federal law allows for certain satellite dish antennas to be installed on exclusive use areas without pre-approval (Over the Air Reception Devices, (OTARD), 47 C.F.R. Section 1.4000).  Additionally, United States flags and certain signs of troop support (such as yellow ribbons) may be displayed as long as there is no threat to public safety, necessary maintenance activities can be performed, and the property rights of others are not impaired (Planned Real Estate Development Full Disclosure Act (PREDFDA), N.J.S.A. 45:22A-48.1 This New Jersey law also states that flags can be prohibited if they are displayed in a manner inconsistent with the federal flag Code or other laws or guidelines).  

A third exception to the pre-approval statute is a New Jersey law, effective August 2007, which prohibits a common interest community association from adopting or enforcing any “restriction, covenant, bylaw, rule or regulation prohibiting the installation of solar collectors on certain roofs of dwelling units” (PREDFDA, N.J.S.A. 45:22A-48.2).   The law only applies to the roofs of single family dwelling units which are not designated common elements and the roofs of certain types of townhouse units where repair is unit owner’s responsibility.  Associations still under developer control are exempt from the law.

While an association may not prohibit the installation of solar collectors on such roofs, it may adopt rules to regulate their installation and maintenance.  However, an association is limited in its ability to monitor installation to the following  the following details: 

  1. The qualifications, certification and insurance requirements of personnel or contractors who may install the solar collectors;
  2. The location where solar collectors may be placed on roofs;
  3. The concealment of solar collectors’ supportive structures, fixtures and piping; 
  4. The color harmonization of solar collectors with the colors of structures or landscaping in the development; and
  5. The aggregate size or coverage or total number of solar collectors. 

Lest an association attempt to indirectly prevent solar collectors by strict rules, the law clearly prohibits rules which or “increase the solar collectors’ installation or maintenance costs by an amount which is estimated to be greater than ten percent of the total cost of the initial installation of the solar collectors, including the costs of labor and equipment.”  Additionally, none of the rules regulating installation and maintenance of a solar collector on the roofs may inhibit the solar collectors from functioning at their “intended maximum efficiency.”  

Not all unit owners may be entitled under this law to install solar collectors.  While the law limits rules restricting where installations are permitted, an association can and should implement policies for solar collector installation and maintenance. Consulting with the association’s legal counsel is necessary to ensure that policies conform to the law.  No matter where you stand on solar collectors, having policies in place will help ensure that your community maintains consistent aesthetic standards.


When a parking war erupted last year between two adjacent restaurants in northern New Jersey, the battle resulted in a law which affects the rights of community associations to tow vehicles from their premises. In October 2007, Governor Corzine signed a new bill into law called the “Predatory Towing Prevention Act” (“Towing Act”) which primarily increases oversight of tow companies. While a law regulating tow companies may not seem relevant to your community association, if you want to tow vehicles from private property areas, it does have implications which could affect your ability to do so.

As expected, the Towing Act mainly regulates what tow companies must do and not do. One provision, however, directly addresses what a private property owner must do before removing a vehicle from its premises without the vehicle owner’s permission. A property owner may only cause removal of a motor vehicle parked on the property if certain signage is posted, the storage facility is a reasonable distance from the property, and the tow company complies with the Towing Act. The Towing Act further requires a tow company to obtain written authorization from the property owner for the tow.

The signage requirement of the Towing Act is burdensome and may be aesthetically undesirable. Signs which are at least 36 inches high and 36 inches wide must be installed “in a conspicuous place at all vehicular entrances to the property which can easily be seen by the public”. The signs must state the following:

  1. The purpose for which parking is authorized and the times during which it is permitted.
  2. That unauthorized parking is prohibited and unauthorized vehicles will be towed at the vehicle owner’s expense.
  3. The name, address, and telephone number of the towing company that will perform the towing.
  4. The charges for the towing and storage.
  5. The street address of the storage facility where towed cars can be redeemed and the times during which the vehicles may be redeemed.

If the required signs are not posted, a property owner may still tow vehicles parked (a) on a lot on which a single family home is located, (b) on a lot on which an owner occupied multi-unit structure of not more than six units is located, or (c) in front of any driveway where the motor vehicle is blocking access to that driveway. While legal arguments could be made that the first two exceptions should exempt many associations from the signage requirements, it is likely a tow company would still require compliance before removing vehicles.

A community association also must provide written authorization and have a representative present in order to get a vehicle towed. The Towing Act requires that a tow company obtain written authorization from the property owner (or its agent) and that the property owner (or agent) be present at the time the vehicle is towed to verify the alleged violation. A general written authorization is permissible for towing done outside of the property owner’s normal business hours or to remove a vehicle which blocks a fire hydrant or entrance to the property. Vehicles must be removed to a storage facility which is a reasonable distance from the property.

The Towing Act does not address the many obvious differences between community associations and a busy mall or restaurant parking lot. Community associations will often have very different reasons for towing vehicles than a retail center. A community association may tow a vehicle if the owner’s membership rights have been suspended for delinquency in the payment of maintenance fees or if a vehicle violates the rules in some way. Community associations also have more opportunities for communicating directly with vehicle owners than businesses serving a transient population and can give unit owners advance written notice of any actions or rules changes. Unit owners, as members of the community association, have the obligation to know and comply with the rules. Despite these differences, the Towing Act as currently written appears to apply to community association and it is not clear how it will ultimately be enforced.

What is clear is that the Towing Act is scheduled to go into effect in October 2008. If your community association uses towing services to remove vehicles from its private property, you will want to discuss the Towing Act with your towing company and ensure that the proper signage is posted. You should also be aware that there may be regulations established by the local municipality which apply to the removal of vehicles from private property. With any vehicle towing policy, legal counsel should always be consulted first to establish proper procedures.