January 2024

How To Proactively Utilize Your Community Association ATTORNEY By Jonathan H. Katz, Esq., Becker & Poliakoff

N ormally, attorneys must be reactive when asked to address an important question, issue, or even a pending lawsuit, so it is a pleasant surprise when attorneys are asked to be proactive and impart their wisdom and advice to our community association clients. Here are a few suggestions for how your community associ ation can proactively utilize the advice of your association attorney: Review and Update Governing Documents Depending on the age of your community, it may be time for your attorney to review your governing documents to ensure that they: (1) are in compliance with the law, including the requirements enacted as part of the Radburn legislation and accompanying Department of Community Affairs (“DCA”) regulations; and (2) to ensure that as the community ages, the requirements and restrictions are appropriate for the association. For example, do we have to amend the provisions regarding elections and meetings to comply with Radburn? Do your by-laws allow for elec tronic notice/voting? Do we really need to keep outdated provisions related to developer control? What is the rule against perpetuities, and do we really need to keep that in our documents (yes, for that one, just trust me.)? Proactively

reviewing your governing documents every few years will ensure that your association is compliant with the law and is up-to-date with all of the latest issues that could affect your association. Review Rules/Regulations and Draft New Policies Does your community have a collection policy? How about a policy on alternative dispute resolution (ADR) or electric vehicle charging stations? Are your pet, parking, and pool rules current and compliant with the Fair Housing Act (“FHA”)? These are all questions that you should ask your attorney every few years while you consider adopting or updating certain rules and policies. As new laws are enacted or change over time, it is important (and good practice) to make sure your rules, policies, and procedures are compliant with both state and federal law. There has been an increasing emphasis on FHA issues over the last several years, whether related to reasonable accommoda tion/modification requests for disabled residents or dealing with assistance animals (service animals and emotional support animals). Understanding those issues and updating your policies to reflect the current law can guide boards in making appropriate decisions for the community. CONTINUES ON PAGE 18

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JANUARY 2024