Brief Discussion Re: Radburn Regulations, Elections & Associations Consisting of 50+ Units

Posted on May 29th, 2020

In 2017, New Jersey’s legislature amended New Jersey’s Planned Real Estate Development Full Disclosure Act, commonly known as PREDFDA.  These amendments have been labeled the “Radburn Amendments”.  PREDFDA has always been administered by parts of New Jersey’s Department of Community Affairs (“DCA”).  To that end, DCA has adopted regulations it claims are necessary to “implement” and/or “enable” relevant owners to “more easily and fully comply with” the Radburn Amendments. These regulations will likely be known as the “Radburn Regulations”.

The Radburn Regulations expressly address “board elections” of associations with 50+ units.  The Radburn Regulations govern the use of proxies and absentee ballots by these associations.  If the association utilizes proxies, it must contain certain disclosures.  An owner can revoke such a proxy prior to the casting of a vote. If the association utilizes proxies, it “must also make absentee ballots available”. Associations consisting of more than 50 units may permit electronic voting so long as the association can “verify the eligibility of the voters” and “count the ballots in a non-fraudulent and verifiable way”. DCA considers the following to be the “non-fraudulent and verifiable way” to count ballots:  (1) any physical location for ballots must be “secured”; (2) ballot “tallying” must “occur publicly, with the ballots “open to inspection” for not less than 90 days from the election’s date; (3) ballots must be “cast in an anonymous manner”; and, (4) if the bylaws allow, and the particular member agrees, a ballot can be cast “electronically if “it is administered by a neutral 3rd party and anonymity is maintained”.

Because of the Radburn Regulations, associations of 50+ units must employ both a notice soliciting nominations and a notice of the election itself.  The notice soliciting nominations must be provided within a tight 30-day window. Every owner in “good standing” can nominate himself or another owner in “good standing” to be a candidate for election.  Thereafter, owners have at least 14 days, counted from the notice’s mailing, to submit a nomination. “Good standing” is the only “criterion” that can be employed concerning a nominee’s eligibility. The association is prohibited from mailing “ballots or proxies” until at least 1 day has passed since the end of the “nomination period”. After the nomination period expires, each owner is entitled to another election notice, sent by “personal delivery, by mail, or electronically”. Notice by electronic means can be sent only when the owner has agreed to this in writing or when the relevant governing documents permit such notices.  This notice must “contain” a ballot. Also, if the bylaws permit, the notice must also include “an absentee ballot”. If the particular bylaws provide for a “proxy ballot”, an “absentee ballot” has to be there too. Candidates must be listed alphabetically and the “ballot” must “include space for write-in candidates for as many seats as are up for election.” Persons elected as “write-ins” also have to be in “good standing”. Lastly, any owner that the association considers to be not in “good standing” must be notified of that within a specific time frame prior to the election.