Revision: Dec. 14, 2021, 4:17 p.m.
SB 324-FN - AS INTRODUCED
2022 SESSION
22-3059
11/08
SENATE BILL 324-FN
SPONSORS: Sen. French, Dist 7; Sen. Carson, Dist 14; Sen. Reagan, Dist 17; Sen. Gannon, Dist 23; Sen. Sherman, Dist 24; Sen. Soucy, Dist 18; Rep. Gordon, Graf. 9; Rep. Almy, Graf. 13
COMMITTEE: Commerce
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ANALYSIS
This bill establishes a dispute resolution board for condominiums, homeowners' associations, and cooperatives. This bill also modifies requirements for homeowners' association agreements.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
22-3059
11/08
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty Two
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Subdivision; Dispute Resolution Board. Amend RSA 356-B by inserting after section 70 the following new subdivision:
Condominium, Homeowners' Association, and Cooperative Dispute Resolution Board
356-B:71 Board Established; Members; Terms; Chairperson.
I. There is hereby created a condominium, homeowners' association, and cooperative dispute resolution board consisting of the following members:
(a) Two members of the house of representatives, appointed by the speaker of the house of representatives.
(b) One member, appointed by the governor, who is a resident owner of a condominium in New Hampshire but not a member of his or her respective condominium board.
(c) One member, appointed by the governor, who is a resident owner of a property in a homeowners' association, but not a member of his or her respective homeowners' association board.
(d) One member, appointed by the governor, who is a resident owner of a property in a housing cooperative, but not a member of his or her cooperative board.
(e) Two members, appointed by the governor, who are members of a condominium association board in New Hampshire, and from 2 different executive council districts, from a list of 3 persons nominated by the New England chapter of the Community Associations Institute.
(f) One member, appointed by the governor, who represents a condominium association management company, from a list of 3 persons nominated by the New England chapter of the Community Associations Institute.
(g) One member of the New Hampshire Bar Association, appointed by the president of the association.
II. No more than 3 members of the board shall be involved professionally or employed in the condominium industry.
III. Non-legislative members of the board shall serve 3-year terms and until a successor is appointed, except that the initial appointments shall be staggered: 2 members shall be appointed to one-year terms, 2 members shall be appointed to 2-year terms, and 3 members shall be appointed to 3-year terms. Legislative members shall serve a term coterminous with their term in office.
IV. The chairperson for the board shall be chosen from among the members at the initial organizational meeting and shall serve at the pleasure of the members of the board.
V. If there is a vacancy on the board, the provisions of RSA 21:33-a and 21:34 shall apply to all members.
VI. If any member of the board is absent for 3 consecutive meetings without cause, the board shall inform the appointing authority in writing and the appointing authority shall appoint a new member to the board within 60 days from the receipt of the written notification.
VII. The board shall hold meetings at least every 90 days and may meet more frequently as deemed necessary by the board.
356-B:72 Quorum, Disqualification of Members; Compensation.
I. A majority of the board shall constitute a quorum to conduct hearings, and a vote of at least 4 members present and voting in favor shall be required to adopt and approve any matter under consideration.
II. As a board member, one may disqualify oneself relative to any matter before the board, or if the board votes that any member has or may have a conflict of interest in any matter before the board, that member shall be disqualified to sit as a board member on the particular matter. The board may hear the matter if it has a quorum. If the board does not have a quorum, the governor shall appoint an additional public member to hear the particular matter pending before the board.
III. The legislative members of the board shall receive legislative mileage for meetings of the board. The remaining members shall receive mileage at the state employee rate for meetings of the board.
356-B:73 Jurisdiction; Procedure.
I. The board shall hear and determine matters involving condominium unit owner, homeowners' association owner, and cooperative owner complaints related to: failure by such association or cooperative to follow its declaration and bylaws; failure to follow proper voting procedures, and other actions not in compliance with association instruments or New Hampshire law. Any matters relating to time share interests shall not be under the jurisdiction of the board.
II. The board shall have authority to review:
(a) Fines assessed by any association on members to determine if such fines are excessive; and
(b) Decisions of any association to determine whether such decisions are subjective or unreasonable.
(c) Complaints relative to homeowners' associations made pursuant to RSA 477:22-b.
(d) Complaints relative to housing cooperatives. For purposes of this subdivision, "cooperative" means a New Hampshire corporation established under RSA 301-A as a means of providing housing to its members.
III. Nothing in this subdivision shall preclude the right of the board to use the services of a mediator to resolve a dispute.
IV.(a) Any condominium unit owner, homeowners' association member, or cooperative member may petition the board by filing a complaint with the board and paying a $250 filing fee which shall be used to defray the costs of the board. Prior to filing a complaint, the petitioner shall provide 10 days notice to the opposite party of intent to file. After review of the claim and a decision by the board that the matter has merit and is not frivolous, the board shall schedule a hearing. If the board finds the claim to be frivolous or without merit, it shall dismiss the complaint and explain in writing to the petitioner its reasons for dismissing the complaint.
(b) The board shall serve notice, in writing, of the time and place of the hearing upon all appropriate parties at least 20 days prior to the date of the hearing. The notice shall inform both parties to the complaint that they may choose to be represented by counsel.
(c) All hearings held by the board shall be held pursuant to RSA 541-A:31 through RSA 541-A:36 unless such proceedings are specifically inconsistent with the provisions of this subdivision. All hearings of the board shall be subject to the provisions of RSA 91-A. The board shall not be bound by common law or statutory rules of evidence but may admit all testimony having a reasonable probative value. It may exclude evidence which, in the opinion of the board, is immaterial, irrelevant, or unduly repetitious.
356-B:74 Decisions; Judicial Review and Enforcement.
I. When the board makes its decision, an order shall be made in writing and shall include findings of facts. The findings of facts shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. The parties shall be notified by mail of any decision or order.
II. A decision of the board may be appealed, by either party following a request for rehearing, by applying for an appeal to the superior court for the county in which either party resides in accordance with the procedures set forth in RSA 677:2-14, inclusive.
III. If no timely appeal is taken pursuant to paragraph II, the decision of the board shall become final. The board shall file a certified abstract of any final decision with the clerk of the superior court in the county of residence of the complainant. The clerk of such court shall enter judgment thereon, and such judgment may be enforced as with any final judgment of the superior court.
356-B:75 Meetings and Records. The board shall hold meetings in Concord, New Hampshire or in any other location deemed appropriate by the board. The records of the board shall be maintained at the office of professional licensure and certification.
356-B:76 Legal Assistance Provided by the Department of Justice. The civil bureau of the department of justice shall act as counsel for the board, and assist in judicial filings and actions as necessary.
356-B:77 Notification and Cooperation Required. The board shall notify the consumer protection and antitrust bureau, department of justice, that the board may accept and act on written complaints properly forwarded to it by such bureau relative to condominium association actions and condominium unit owner complaints.
356-B:78 Rulemaking. The board, under the direction of the bureau chief of the consumer protection and antitrust bureau, shall adopt rules under RSA 541-A relative to the administration of this subdivision.
356-B:79 Annual Report. The board shall submit to the governor, the speaker of the house of representatives, and the senate president, not later than March 31 of each year, a report of its activities during the preceding calendar year. The report shall include, but not be limited to, the number of complaints received, by category according to RSA 356-B:73, and the number and percent of complaints accepted and rejected. The report may also include recommendations for improvements, including rule or statutory changes.
2 New Subparagraph; Office of Professional Licensure and Certification; Administration of Condominium, Homeowners' Association, and Cooperative Dispute Resolution Board. Amend RSA 310-A:1-a, I by inserting after subparagraph (r) the following new subparagraph:
(s) Condominium, homeowners' association, and cooperative dispute resolution board under RSA 356-B:71.
3 New Section; Interests in Realty; Homeowners' Associations. Amend RSA 477 by inserting after section 22-a the following new section:
477:22-b Interests in Realty; Homeowners' Associations. Any covenant, condition, or restriction relating to homeowners' associations contained in any deed, contract, mortgage, security instrument, or other instrument pertaining to a conveyance, sale, or transfer of real property or interest therein shall comply with the following provisions:
I. In the event of a dispute between a homeowner and the association, resolution of issues shall favor the property owner and the association shall not have sole discretion over any issue.
II. Disputes between the property owner and the association shall be heard by the condominium dispute resolution board; however, at the election of both property owner and association such disputes may be settled through private mediation.
III. No penalty shall be assessed on a property owner that encompasses greater than 30 days accumulated violations. Any penalty properly assessed shall be credited to the property owner to remediate the issue that caused the penalty to accrue. Any improperly assessed penalty shall be credited to the property owner. Property owners may seek restitution, through the condominium dispute resolution board, from the homeowners association.
IV. Property owners and homeowners' associations shall be separately responsible for each party's respective legal fees in the case of any dispute.
V. Any property owner who is subject to, in the view of the condominium dispute resolution board, an unreasonably delayed resolution to the dispute shall be entitled to proceed without further action or objection from the homeowners' association.
VI. All homeowners' associations shall have a minimum of 3 voting board members, each of which shall serve 2 year terms. No homeowners' association board member shall serve subsequent terms unless and until every other member of the homeowners' association has served on the board. Homeowners' association board members shall live on site 75 percent of the year.
VII. Homeowners' associations shall not prohibit alternative energy solutions such as solar panels, solar shingles, fuel cells, or other reasonable clean energy alternative.
VIII. Homeowners' associations shall not discriminate against any member of the association on the basis of age, sex, gender identity, race, color, marital status, physical or mental disability, religious creed, or national origin. The condominium dispute resolution board may fine any association found to have engaged in unlawful discrimination.
4 Committee to Study the Laws Relating to Condominium and Homeowners' Associations; Membership. Amend RSA 356-B:70, II(a) to read as follows:
(a) [Three] Four members of the house of representatives, appointed by the speaker of the house of representatives.
5 Repeal. RSA 356-B:70, relative to the committee to study the laws relating to condominium and homeowners' associations, is repealed.
I. Section 5 of this act shall take effect January 1, 2024.
II. The remainder of this act shall take effect 60 days after its passage.
22-3059
Redraft 12/10/21
SB 324-FN- FISCAL NOTE
AS INTRODUCED
FISCAL IMPACT: [ X ] State [ ] County [ ] Local [ ] None
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STATE: | FY 2022 | FY 2023 | FY 2024 | FY 2025 |
Appropriation | $0 | $0 | $0 | $0 |
Revenue | $0 | Indeterminable Increase | Indeterminable Increase | Indeterminable Increase |
Expenditures | $0 | Indeterminable Increase | Indeterminable Increase | Indeterminable Increase |
Funding Source: | [ ] General [ ] Education [ ] Highway [ X ] Other - Office of Professional Licensure and Certification Budget | |||
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METHODOLOGY:
This bill establishes a dispute resolution board for condominiums, homeowners' associations and cooperatives. The board shall be made up of two legislative members and seven non-legislative members. This bill entitles legislative members to be paid legislative mileage reimbursement for meetings as well as mileage reimbursement at the state employee rate for the non-legislative members on the board. The bill establishes a $250 filing fee for every complaint filed with the board and the filing fees shall be used to offset the expenses incurred by the board.
The Office of Professional Licensure and Certification (OPLC) states there is an indeterminable fiscal impact on State revenue and State expenditures. OPLC is unable to project the amount of complaints that will be filed with the board nor are they able to determine how much mileage reimbursement will be paid to the members on the board.
The Department of Justice states there is an indeterminable fiscal impact on state expenditures. The Department is unsure of how many complaints will be filed and the amount of counsel needed to assist the board in judicial filing.
It is assumed the fiscal impact will not occur until FY 2023.
AGENCIES CONTACTED:
Office of Professional Licensure and Certification and Department of Justice