When Is a New Jersey HOA Rule Unenforceable?

Not every rule a New Jersey board announces is automatically enforceable. A rule has to come from somewhere — the authority granted by the master deed/declaration and bylaws — and it has to be adopted and applied consistently with PREDFDA and basic fairness. New Jersey courts have shown a willingness to scrutinize unreasonable association rules. For your specific situation, a licensed New Jersey attorney is the right resource. This is general information, not legal advice.

Rules flow from authority, not preference

A New Jersey association's rule-making power generally comes from the recorded master deed or declaration and bylaws, not directly from PREDFDA. So the threshold question for any rule is authority: does the master deed authorize the board to regulate this subject, and to penalize it the way it has? A rule that exceeds the recorded authority is exposed.

The 2017 Radburn Law (N.J.S.A. 45:22A-45.1 et seq.) reinforced an important governance discipline: certain changes have to run through the bylaws rather than through unilateral board rules. A board that tries to make a structural governance change by rule rather than by bylaw amendment may be acting outside its authority.

Open meetings and proper procedure

Under PREDFDA, board meetings are open and binding action cannot be taken in closed session except for enumerated topics. A rule adopted in a meeting that was not properly noticed or held open — or in a closed session that didn't fit one of the enumerated topics — can be challenged on those procedural grounds. See Attending HOA Meetings in New Jersey.

Selective enforcement and reasonableness

New Jersey courts have applied a reasonableness standard to community association rules, and selective enforcement is a recognized fairness problem. The classic articulation in older condominium cases recognizes that a board's rule-making power is bounded by good faith, reasonableness, and consistent application. The association's own records and minutes are usually where any pattern of selective enforcement surfaces.

The ADR layer

Before a rule or fine fight reaches court, New Jersey law requires associations to provide an alternative dispute resolution procedure for housing-related disputes — under N.J.S.A. 45:22A-44 for PREDFDA-governed associations and N.J.S.A. 46:8B-14(k) for condominiums. The statute requires "a fair and efficient procedure for the resolution of disputes between individual unit owners and the association ... as an alternative to litigation," handled by someone other than an officer, board member, or owner involved in the dispute. ADR is generally the first stop for an owner who wants to challenge a rule or its enforcement, and the ADR record is then available if the dispute escalates.

Where federal and state law overrides a rule

Some rules fail no matter how they were adopted, because higher law preempts them:

• Fair housing — the federal Fair Housing Act and the New Jersey Law Against Discrimination bar discrimination and require reasonable accommodations, including for assistance animals
• Display rights — the federal Freedom to Display the American Flag Act and the FCC's OTARD rule limit bans on the U.S. flag and on certain antennas and satellite dishes
• Political signs — the New Jersey Supreme Court held in Mazdabrook Commons Homeowners' Association v. Khan, 210 N.J. 482 (2012), that an association's near-total ban on residential signs violated the free-speech clause of the New Jersey Constitution as applied to a homeowner's own political sign. New Jersey's constitution can limit even a private association's restriction on political speech, so a flat prohibition on political signs is exposed. The court did leave room for reasonable time, place, and manner limits (such as on the number or location of signs)
• Solar — N.J.S.A. 45:22A-48.2 bars an association from prohibiting solar collectors on owner-maintained single-family or townhouse roofs, and voids any rule that would raise installation or maintenance cost by more than 10% or inhibit the system's efficiency
• Servicemembers — the Servicemembers Civil Relief Act protects owners on active duty

A rule that collides with any of these is not saved by being in the master deed.

What people generally do

When a New Jersey rule is in question, the points that commonly matter are:

• Whether the rule traces back to a specific master deed/declaration or bylaw provision that authorizes it.
• Whether any rule adoption followed PREDFDA's open-meeting rules and went through the bylaws where required.
• Evidence of how the rule has been enforced against others.
• The association's ADR procedure under PREDFDA, available to challenge the rule or its enforcement.
• A licensed New Jersey attorney is the resource before a disputed fine feeds the assessment lien.

Sources

• N.J.S.A. 45:22A-21 et seq. — Planned Real Estate Development Full Disclosure Act
• N.J.S.A. 45:22A-44 — Powers, functions of association (ADR requirement)
• N.J.S.A. 46:8B-14 — Responsibilities of association (condo ADR, subsection (k))
• N.J.S.A. 45:22A-45.1 — Radburn Law (universal membership/election)
• N.J.A.C. 5:26 — DCA implementing regulations
• N.J.S.A. 45:22A-48.2 — Solar collectors; homeowners association authority limited
• Mazdabrook Commons Homeowners' Ass'n v. Khan, 210 N.J. 482 (2012) — political signs and the NJ Constitution