N.J. Admin. Code § 5:26-8.9

Current through Register Vol. 56, No. 9, May 6, 2024

Section 5:26-8.9 - Executive board elections

(a) The executive board shall be elected by association members and voting eligible tenants.

1. The developer shall not be entitled to cast votes in any executive board elections while the developer maintains a seat or seats on the board pursuant to Section 5 of P.L. 1993, c. 30 (N.J. S.A. 45:22A-47).

(b) The association shall hold executive board elections in accordance with the provisions of its bylaws, including validly adopted executive board rules.

1. Elections shall be held every two years, unless the association bylaws set a different time or interval for elections, which shall not exceed four years.

2. Associations shall set the term of an executive board member for a maximum of four years. This section shall not prohibit the association from staggering elections, so as to provide for a continuum of experienced members on the board.

3. If the association has not held an election in compliance with its bylaws, owners may submit a petition to any board member to compel an election.

i. Such petition shall be signed by a minimum of 25 percent of association members in good standing, unless the governing documents designate a larger percentage as the quorum for elections.

ii. The executive board shall hold an election within 90 days upon receipt of such petition.

(c) If the association has no executive board members and association members fail to act on petition or by majority, any association member or group, at common expense and upon written notice to all owners, may petition a court with jurisdiction for authority to act temporarily in the interests of the association and to organize and hold an election within 90 days of the court order.

(d) The use of proxies and absentee ballots for executive board elections shall be governed by this subsection.

1. Any proxies used by the association shall contain a clear and prominent notice that use of the proxy is voluntary on the part of the granting owner.

2. The proxy may be revoked at any time before the proxy holder casts a vote.

3. If the association allows the use of proxies, it shall also make absentee ballots available.

(e) Each unit shall be allocated either one vote or an equal number of votes per unit, unless the governing documents of the association allow for voting proportional to a unit's value or size. These allocations shall be consistent such that all owners of units of the same value or size shall have the same number of votes.

(f) The association shall not prohibit, limit, impede, or restrict participation by residents of low-or moderate-income housing units. No association election procedure shall impose any requirement for voting on low- or moderate-income housing owners that would interfere with their right to vote.

(g) The association shall not prohibit , limit, impede, or restrict members in good standing, proxy holders, individuals acting pursuant to a valid power of attorney, or voting eligible tenants, as applicable, from voting for any candidate in an executive board election.

1. If allowed by the bylaws of the association, a voting eligible tenant shall not be prohibited from voting.

2. If electronic voting is permitted, anyone eligible to vote shall be permitted to cast votes electronically, so long as the electronic ballot is administered in accordance with (h) below.

(h) The association shall verify the eligibility of the voters and count the ballots in a non-fraudulent and verifiable way.

1. Any depository for physical ballots shall be secured.

2. All ballot tallying shall occur publicly, and the ballots shall be open to inspection by any member of the association for a period of 90 days from the date of the election.

i. Electronic voting undertaken pursuant to (h)4 below shall not require public tallying as results are immediately available. The results of the electronic election shall be made available for public review and shall be open to inspection by any member of the association for a period of 90 days from the date of the election.

3. All ballots shall be cast in an anonymous manner.

4. If the bylaws permit, and the association member consents, a ballot may be cast electronically if it is administered by a neutral third party and anonymity is maintained.

(i) Initial executive board elections in condominium associations governed under the Condominium Act, P.L. 1969, c. 257 (N.J.S.A. 46:8B- 1 et seq.), shall follow the notice timeline under Subsection b. of Section 2 of P.L. 1979, c. 157 (N.J.S.A. 46:8B-12.1), and shall not be subject to this section.

(j) When independent associations with residential units share facilities or obligations that require them to be members of a master or umbrella association board to oversee those facilities or obligations, the members of the independent association shall, unless the independent associations' governing documents provide for such association to appoint a member to the master or umbrella association, elect representatives to the master or umbrella association in accordance with this section, provided that the members of the executive board of the master or umbrella association also serve as executive members of the independent association's board.

(k) Associations with fewer than 50 units shall be governed by (a) through (j) above and by the following:

1. The association shall provide written notice of the election not fewer than 14 calendar days and not more than 30 calendar days prior to the date of the election. Such notice shall provide access to information on when and how to vote.

2. All association members may nominate any member for candidacy, including self-nomination. The association shall ensure that all nominees are in good standing. Good standing shall be the sole criterion for the eligibility of a nominee.

3. The association shall provide its members the opportunity to review the qualifications of the candidates who are running for election to the board.

i. Provisions for write-in candidates may be established in the bylaws of the association. In the event a write-in candidate receives sufficient votes to be elected but is not eligible, such candidate shall not be deemed to have been elected. If this results in a vacancy on the board, the eligible candidate receiving the next highest number of votes shall be deemed to have been elected.

4. A minimum of 14 days prior to the election, the association shall notify any resident who is not in good standing. The notice shall state the reason the resident is not in good standing. The notice shall state that the resident has the right to contest the board's determination by requesting Alternative Dispute Resolution.

(l) Associations with 50 or more units shall be governed by (a) through (j) above and by the following:

1. Any election meeting held by the executive board shall require both a notice calling for nominations and a notice of election.

i. The association shall provide written notice calling for nominations to all members not fewer than 30 calendar days and not more than 60 calendar days prior to mailing the election meeting notice informing them of the right to nominate themselves or other members in good standing as candidates for the executive board. Such notice shall specify the process for submitting nominations.

ii. Association members shall have a minimum of 14 days from the mailing of the request for nomination during which they may submit their nominations to the board president or otherwise as provided in the association's bylaws. The deadline shall be provided in the notice.

(1) When the association has not set a deadline, nominations of members in good standing shall be deemed valid until one business day prior to the mailing of the notice of election. Good standing shall be the sole criterion for the eligibility of a nominee.

(2) The association shall not mail out ballots or proxies until the day following the expiration of the nomination period.

(3) Nothing in this subsection shall prevent members in good standing from writing in eligible candidates on the day of the election pursuant to (l)1iv(6) below.

iii. Following the nomination period, a notice of election shall be sent to all association members. This notice shall be in writing and may be made by personal delivery, by mail, or electronically. It shall be sent not fewer than 14 days and not more than 60 days prior to the date of the election.

(1) In the case of mailing, the notice shall be effective when deposited in the mailbox with proper postage.

(2) In the case of personal delivery, the notice shall be effective the date it is delivered. The executive board shall sign and maintain a record attesting to the date the notice was delivered.

(3) In the case of electronic delivery, the notice shall be effective the date of the electronic record. The notice may only be sent by electronic means when the affected association member or voting eligible tenant has agreed in writing to accept the notice by electronic means or when the governing documents permit electronic notices, provided another form of voting by absentee balloting or proxy voting is available.

iv. The election meeting notice shall contain a copy of the ballot.

(1) Unless prohibited by the bylaws of the association, the notice shall include a proxy ballot and an absentee ballot with instructions for returning the ballot.

(2) The ballot shall contain the names of all persons nominated and found to be in good standing as candidates for the executive board in alphabetical order by last name.

(3) The ballot shall not indicate incumbent board members.

(4) The ballot shall list each candidate's name in the same font, in the same size, and in the same font color.

(5) When an election is for a specific board position, the ballot shall indicate what office and term each candidate is seeking.

(6) The ballot shall include space for write-in candidates for as many seats as are up for election. In the event a write-in candidate receives sufficient votes to be elected but is not eligible, such candidate shall not be deemed to have been elected. If this results in a vacancy on the board, the eligible candidate receiving the next highest number of votes shall be deemed to have been elected.

v. A minimum of 30 days prior to the election, the association shall notify residents who are not in good standing. Such notice shall state the reason why the resident is not in good standing. The notice shall state that residents have the right to contest the board's determination by requesting Alternative Dispute Resolution. Residents shall be allowed to rectify their standing up until five business days prior to the election date, unless the association allows for more time.

N.J. Admin. Code § 5:26-8.9

Adopted by 52 N.J.R. 1057(a), effective 5/18/2020

Amended by 55 N.J.R. 1381(a), effective 7/17/2023