New Jersey R.2020 d.056 (N.J.A.C. 5:26-8.8 to 8.14): HOA Governance Rules

Quick Answer

In 2020 DCA adopted new community association governance rules at N.J.A.C. 5:26-8.8 through 8.14, effective May 18, 2020 (R.2020 d.056). They cover who is a member and who is "in good standing," how board elections run, board vacancies and removal, open meetings and minutes, bylaw amendments, and owner complaints to DCA. Sections 8.9, 8.11, 8.12 and 8.13 were later amended in 2023, so always read the current text.

At a Glance

What the Law Says

Reading note: the section text below is the current text of each rule, which includes the July 17, 2023 amendments to 8.9, 8.11, 8.12 and 8.13. For what the 2023 package changed, see the separate page on those amendments.

Membership and good standing (5:26-8.8)

• "Upon acceptance of a deed to the unit, each owner shall be an association member for so long as he or she holds title."
• A member is in good standing to vote in board elections, vote to amend bylaws, and nominate or be a candidate when the member is current on common expenses, late fees, interest, legal fees and other lawful charges, or is in compliance with a judgment or settlement, or "has requested or is participating in Alternative Dispute Resolution (ADR) or in a court proceeding for a dispute over a matter that affects the owner's good standing."
• Bylaws may allow tenants to vote or be members only with the owner's consent. A voting eligible tenant votes "in place of, and not in addition to" the owner. An owner who is not in good standing may not empower a tenant or anyone else to vote for the owner.

Elections (5:26-8.9)

• Elections are held every two years unless the bylaws set a different interval of no more than four years. Terms are a maximum of four years.
• If the association has not held an election as its bylaws require, owners may petition to compel one. The petition needs at least 25 percent of members in good standing (or a larger percentage if the governing documents set a larger quorum), and the board must hold the election within 90 days of receiving it.
• Proxies must carry a clear notice that use is voluntary and may be revoked before the proxy holder votes. "If the association allows the use of proxies, it shall also make absentee ballots available."
• Ballots must be anonymous and counted in a verifiable way. Physical ballots are tallied publicly and open to member inspection for 90 days.
• Associations with fewer than 50 units must give written notice of the election at least 14 and not more than 30 calendar days before it. Associations with 50 or more units follow a longer sequence: a call for nominations (30 to 60 days before the election notice is mailed, with at least 14 days to nominate), then an election notice sent 14 to 60 days before the election, with a ballot copy.

Representation (5:26-8.10)

• Bylaws may provide board seats for different unit types. Where affordable units are a minority of units, the bylaws "shall reserve a seat or seats" for election by owners of affordable units.
• Commercial unit owners may not be a majority of the board. Not more than one resident of a single unit may serve on the board at once (except developer representatives before turnover), and one person or entity may not hold more than one seat.

Appointments, removals and vacancies (5:26-8.11)

• A board member is removed "only in accordance with the bylaws or by the board for good cause directly impacting the member's ability to serve." The board may not remove an elected member for disagreeing with the majority or for violating a confidentiality agreement without first offering ADR.
• In associations of 50 or more units, the board may not appoint a person to an executive position, with exceptions for vacancies from resignation, death or loss of qualifications. An appointee must stand for election within a year.
• Members may remove an elected board member by petition signed by at least 51 percent of members, followed by a special election within 60 days (or at the annual meeting if it falls within 60 days). The special election notice must go out at least 14 days before the meeting.

Open meetings (5:26-8.12)

• Meetings where a binding vote is taken must be open to members. The board must give a brief explanation of the basis and cost of each matter voted on, and put it in the minutes.
• The association holds an annual meeting. Within seven days after it, the board must post an open meeting schedule and keep it posted.
• "Adequate notice of at least seven days" must be given before a meeting, with time, date, location and agenda items to the extent known.
• The board may close all or part of a meeting only for listed topics: individual privacy, pending or anticipated litigation or contract negotiations, employment or discipline of a specific employee or officer, and attorney-client privileged matters. A vote taken in a closed meeting "shall not be binding."
• Minutes of open sessions are required and must be made available to members "in a timely manner before the next meeting." Recordings, if made, must be accessible for 30 days after the written minutes are approved.
• Emergency meetings are allowed with notice "as soon as possible" when delay would likely cause substantial harm; the board must record the facts establishing the emergency.

Bylaw amendments (5:26-8.13)

• No amendment is effective until recorded in the same county clerk's office as the existing bylaws, except for associations not required to file bylaws with the county clerk.
• A petition of at least 15 percent of members can force a special meeting for an amendment vote (if the bylaws do not provide a method), held within 60 days. Notice must be given at least 14 days before the meeting, with the proposed language.
• A board-proposed amendment is defeated if at least 10 percent of members in good standing vote to reject it within 30 days of the mailing, where the notice included a reject ballot.
• The board may not amend bylaws without a vote open to all members, except as needed to make the bylaws consistent with law.

Complaints (5:26-8.14)

Owners may file written complaints with DCA, and must do so at least ten business days before an election to seek relief for that election. Owners may go to court instead. See the chapter overview for the enforcement details.

What This Means in Practice

For boards

The rules set timing and notice minimums that a board can build a calendar around: the open meeting schedule within seven days after the annual meeting, seven days notice for open meetings, 14 days for bylaw amendment and special election notices, and the 90-day ballot inspection period.

For owners

Owners can use petitions in three places: to compel an election (25 percent), to call a bylaw vote (15 percent) and to remove an elected director (51 percent). The 25 percent figure can be higher if the governing documents set a larger quorum, and the 15 percent figure applies where the bylaws give no method. Check your bylaws.

Open questions (our reading)

• The rules say bylaws "shall include" the open meeting requirement. How a bylaw that omits it is treated is not spelled out in the text we read.
• The text of 5:26-8.9(k) for small associations states a 14-day notice to members not in good standing but, as we read it, states no cure deadline. Confirm with counsel.
• The rules do not say what DCA considers an adequate "brief explanation" in minutes; keep it factual and include cost.

Timeline

Related New Jersey Law

• N.J.A.C. 5:26 overview
• 2023 amendments: good standing and removal
• P.L.2017, c.106
• N.J.S.A. 45:22A-45.2
• New Jersey HOA laws and regulations

Board Checklist

• Post the open meeting schedule within seven days after each annual meeting.
• Send meeting notices at least seven days ahead with agenda items.
• Include a brief basis and cost explanation in minutes for each binding vote.
• Limit closed sessions to the four listed topics and hold binding votes in open session.
• Check election notices and nomination periods against 5:26-8.9 for your unit count.
• Offer absentee ballots whenever proxies are allowed.
• Record bylaw amendments with the county clerk where required before treating them as effective.
• Keep ballots and results available for 90 days after an election.

Frequently Asked Questions

When did the New Jersey association governance rules take effect?

May 18, 2020, as R.2020 d.056.

How much notice is required for an open board meeting?

At least seven days, with time, date, location and agenda items to the extent known. Emergency meetings have a separate rule.

Can a board hold a closed session?

For listed topics only: privacy, litigation or contract negotiations, specific employee matters and attorney-client privileged matters. Votes in closed sessions are not binding.

How many owners must sign a petition to force an election?

At least 25 percent of members in good standing, unless the governing documents set a larger quorum. The board must then hold the election within 90 days.

Can owners remove a board member by petition?

Yes, an elected member, by a petition signed by at least 51 percent of members. See the 2023 amendments page for how DCA has described this process.

Do bylaw amendments have to be recorded?

Generally yes, in the same county clerk's office as the bylaws, though associations not required to file bylaws with the county clerk are treated differently (5:26-8.13(b)).

Are tenants allowed to vote?

Only if the bylaws allow it and the owner consents. The tenant votes in place of the owner.

Where This Comes From

We read DCA's adoption notice for R.2020 d.056 (dated May 18, 2020), and the current text of N.J.A.C. 5:26-8.8 through 8.14 as published in a public regulations mirror, including its history notes. The 2023 adoption notice supplied the statement that the rules implement P.L.2017, c.106. The official notice is at nj.gov. We did not independently check the mirror against the New Jersey Register.

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Legal disclaimer: This article is general information, not legal advice. Laws change and associations differ. Confirm the current statute text and how it applies to your governing documents with a licensed New Jersey attorney before acting.