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The general position taken for years has been that senior developments are good for towns because they provide ratables, yet they have little or no impact on the local school system. However, recent newspaper articles report that a number of senior developments have children of school age, thus debunking the generally accepted theory.

The Fair Housing Act, and its amendments, are vehicles used by senior housing developments so that they may "legally discriminate" based upon age. This is acceptable so long as the association maintains its established rules and procedures set forth in the Fair Housing Act. While this post is not intended to go through that procedure, it is intended to advise community associations that they may enforce age restrictions set forth in their own governing documents.

Recently, a town in New Jersey concluded that its ordinance pertaining to senior housing (or age restricted communities) mandated that anyone under the age of 19 may not live in any age restricted community within its township boundaries, with limited exception. The association's governing documents set minimum age requirements which were enforceable. In this situation I believe the Township's ordinance was to narrow and the Township should have been required to broaden its acceptance of age limitations for restricted communities.

Technorati Tags: New Jersey : Condo : Community Association

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This week's New Jersey Legal Update podcast will discuss the Miller Act and what it means to both general and sub-contractors.

This week's New Jersey Legal Update is presented by Paul Norris, a member of the Firm's Litigation group.

You can download the New Jersey Legal Update Podcast # 20 here.(21MB)

Technorati Tags: New Jersey : Podcast

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In a case of first impression in New Jersey, the Appellate Court found that condominiums may have a duty to warn condominium owners of potentially dangerous conditions known to it, even involving property or issues related only to an individual unit. The Appellate Court did not rule on whether the condominium breached its duty to warn and remanded that issue back to the Trial Court for disposition.

The case centered around Sandra Siddons, a condominium association member whose unit was flooded when a faulty dishwasher hose in the unit directly above hers burst. She sued the upstairs unit owners as well as her condominium association for the substantial damage caused to her unit. Although there were no problems with the upstairs owners' dishwasher, it was revealed that the condominium had known of at least three other units that experienced similar problems with faulty hoses. Ms. Siddons claimed that the condominium had a duty to warn all owners of this problem. The Trial Court disagreed, held that there was no duty and found no liability.

The Appellate Court reversed the Trial Court and found that while the condominium had no duty to inspect or maintain personal property - such as a dishwasher or washing machine - located in an individual unit, the condominium did have a duty to act reasonably to warn the unit owners of potential dangers of which that condominium had prior notice. Because the risk posed by the faulty hoses was not known to the majority of the unit owners and only to the condominium, the Appellate Court found that the condominium was in the best position to notify the unit owners of this potentially dangerous condition. Further, the Appellate Court found that it would not be an undue burden to require the condominium to make this information available to the unit owners.

The lesson here - condominiums and their managing agents or boards have heightened duties to notify owners of some recurring problems - even as small as a faulty dishwasher hose - that may potentially cause damage to the units or common areas. It is advised that this notification be done in writing. Condominiums must make case-by-case determinations, in consultation with counsel and management, about whether notice of a particular problem is necessary.

It is also very important to note that this decision applies only to condominiums and not to cooperatives, homeowners associations or other forms of planned unit developments.

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The Appellate Court recently struck down an associations ability to raise monies through a capital contribution paid at closing by the seller(Micheve v. Wyndham Place at Freehold Condominium Association).

This particular Board adopted its capital contribution by way of a Board resolution. In ruling that the capital contribution was discriminatory, the Court stated that the resolution violated the New Jersey Condominium Statute, and the association's own Master deed and By-Laws.

Associations are urged to discuss this issue with its counsel, particularly if the association charges a capital contribution by an adopted resolution.

Technorati Tags: New Jersey

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This week's New Jersey Legal Update podcast will discuss shareholder oppression within a business partnership. Topics discussed include how oppression within an organization is determined and ways in which the court assesses the company's value for purposes of dissolution.

This week's New Jersey Legal Update is presented by Scott Unger, a member of the Firm's Litigation group.

You can download the New Jersey Legal Update Podcast # 19 here.(34MB)

Technorati Tags: New Jersey : Podcast

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In the recent Appellate Division, Peak Construction v. Melone, the Court discussed a party's right to an award of counsel fees and the dismissal of a Lien Claim should it be found that the lien was wilfully overstated. In general, if a Lien Claim is wilfully overstated the lien is removed and the aggrieved party is entitled to counsel fees in any action brought under the overstated lien. Traditionally, the aggrieved party is entitled to any counsel fees it incurs in removing the unlawful and improper lien. The Peak Construction case is unique, however, as the Court considered whether an individual acting pro se may be entitled to an award of counsel fees. In ruling against Peak Construction in its application for $51,000.00 in pro se counsel fees, the Court explained that generally pro se litigants are not entitled to counsel fees for defending an action, and moreover, Defendant did not timely notify Plaintiff's counsel that they would be seeking counsel fees and a dismissal of the Lien Claim. As such, the practical application of this case suggests that it behooves an aggrieved party to get an attorney involved if a Construction Lien is wilfully overstated, as these fees would be recoverable. On the other hand, should a party attempt to handle this matter on their own then generally they would not be entitled to counsel fees.

Technorati Tags: New Jersey

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Adam Siegelheim, a member of the firm's Franchise group, was interviewed by Nation's Restaurant News for the October 3, 2005 edition. The article, "Outlook Uncertain for Scope of Franchisors' Post-Katrina Aid," talks about the effects of Hurriance Katrina on franchisors.

Read the article here.

Technorati Tags: New Jersey

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At Stark and Stark we have long insisted on confidentiality throughout the mediation process. For example, our standard mediation agreement provides that the mediation statements submitted by the parties prior to the mediation session are confidential. Furthermore, the agreement provides that statements made during the mediation process are confidential. And, the parties are advised at the very beginning of the mediation session that a Stark & Stark mediator will not disclose to any party to the mediation any statement, offers or promises disclosed to the mediator during the mediation session without the express consent of the party who made the statement, offer or promise. Confidentiality of the entire mediation process is the "watchword" here at Stark & Stark. And, our insistence on confidentiality has recently been justified by the New Jersey Supreme Court's decision in State v. Williams, 184 N.J. 432 (2005).

The specific holding in Williams is that a mediator appointed by a Court under Rule 1:40-4 may not be called to testify in a subsequent criminal proceeding regarding a participant's statements during mediation. But, as will be discussed below, the opinion of the Court has broader ramifications. What were the facts in the Williams case?

Williams and his brother-in-law Bocoum enjoyed a close relationship. However, family problems caused that relationship to deteriorate. Bocoum began telephoning Williams and left taunting and profanity-laced messages. That led to a face-to-face argument which escalated into a physical fight. Williams claimed that Bocoum hit him with a shovel. Bocoum countered that Williams cut him with a machete. As a result of the fight Williams was arrested. Later he was indicted for third-degree aggravated assault, and weapons charges. At his criminal trial he defended against those charges by asserting that he acted in self defense. But, he was convicted of assault and a weapons charge.

After his arrest and before the criminal trial Williams filed a municipal Court complaint against Bocoum alleging that the phone messages constituted harassment. Pursuant to R. 1:40-4 the municipal Court appointed a mediator, Pastor Josiah Hall, in an attempt to resolve the harassment dispute. The mediation was unsuccessful.

At his later criminal trial Williams tried to call Pastor Hall as a witness to support Williams' contention that he acted in self-defense. The trial judge then questioned Pastor Hall outside of the jury's presence. Pastor Hall told the judge that Bocoum had stated during the mediation session that during the fight he had picked up a shovel. Although Williams testified that he acted in self-defense when confronted by Bocoum wielding a shovel against him and Bocoum testified that he did not have a shovel, the trial judge excluded Pastor Hall's testimony under Rule 1:40-4(c) which prohibits a mediator from testifying in any subsequent proceeding. The Supreme Court agreed, and the majority opinion strongly upheld the principle of confidentiality in the mediation process. Even though this was a criminal case with Fourteenth Amendment concerns, the Court affirmed the decision of the trial judge to bar Pastor Hall's testimony.

Stark & Stark's longstanding confidentiality practices are strongly supported by the Williams decision. As noted by the Court, "successful mediation with its emphasis on conciliation depends on confidentiality perhaps more than any other form of ADR".

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Buying a home is often a major transaction for an individual or family and generally occurs infrequently. It is not surprising then, that Buyers have need for a number of experts to assist them in this endeavor.

Realtors - A real estate agent who represents a Buyer's interests in buying a new home can be a wonderful resource. The real estate agent can initially assist by recommending the best geographic area for a Buyer to look based on the Buyer's lifestyle, commuting requirements and school needs, among other factors. Real estate agents are an excellent source of information about various communities a Buyer may be considering - from the services a community provides its residents, to their form of government, to the rating the municipality's school system has attained within the State. The real estate agent will also guide a Buyer through the process of making an offer on a home and can provide expert advice regarding the offer a Buyer plans to make. Real estate agents assist throughout the transaction by arranging for engineering inspections, pre-closing inspections and resolving numerous issues which may arise before the closing of title.

Attorneys - Attorneys will review a contract and provide legal advice regarding the contract and modifications to protect the Buyer's interests during the transaction. This usually occurs during the three (3) day attorney review period found in all realtor prepared contracts. The Buyer's attorney negotiates any needed modifications to the contract. The attorney is frequently involved in negotiating a resolution of any issues raised as a result of the Buyer's home inspection. The attorney also utilizes his/her legal expertise when reviewing the title history of the property, any easements or restrictions which may limit a buyer's use of the property and any other liens against the property which would constitute a defect in the title. The attorney then identifies any issues which would adversely affect the Buyer and seeks to resolve them. The attorney will assist with satisfying the conditions of Buyer's mortgage commitment, review the loan documents, complete them and attend to their execution at closing. The attorney summarizes the financial aspects of the transaction on a HUD-1 form, calculating adjustments for real estate taxes, water, homeowners association dues and the like. The attorney also represents the Buyer's interests in resolving any last minute issues which arise at closing. The attorney then takes responsibility for recording the deed, and if applicable, the mortgage, in the County Clerk's Office.

Home Inspectors - Home inspectors are critical in helping the home Buyer determine the condition of the property they are buying. Some inspectors perform most, if not all aspects of a home inspection. This would include structural, mechanical, electrical, roof and basement conditions. However, for certain transactions, specialized inspectors for wood destroying insects, mold, septic systems, well water, underground storage tanks and radon may be needed.

Home buyers should take advantage of the expertise of the various professionals available to assist them in this important transaction.

Technorati Tags: New Jersey : Divorce

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This is a classic scenario that either a General Contractor or Subcontractor is routinely faced with when a governing body, such as a Municipality, changes the design plans which may increase the project costs to the General and/or Subcontractor. In this matter, the Plaintiff-Subcontractor failed to carefully document its increased costs and to issue a Change Order to Defendant-General Contractor prior to performing the work. As a result, the Plaintiff-Subcontractor was not awarded the additional $32,000.00 which it sought upon completion of the Project. As such, all General or Subcontractor(s) should be forewarned to carefully document any Change Orders in prosecuting contract work so that they may be properly compensated for it by either the Owner or the General Contractor. In the absence of an approved, signed Change Order, it is likely that the General/Subcontractor would be held to the original plans and specifications even though a Governing Body may have made changes to the original design and/or plans. The practical application of this case is that documentation of any changes and/or revisions is essential to preserving your rights to obtain increased compensation.

Technorati Tags: New Jersey

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Thomas Lewis, chair of the Employment group authored a chapter of the "Human Resources 2006: Answers to Your Top 25 Questions" from Thompson Publishing Group. The chapter is entitled "Retaliation in the Workplace: Strategies for Avoiding the Danger of Retaliation Lawsuits."

Read the chapter here.

Technorati Tags: New Jersey : Employment

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In a recent Appellate Division case, the Appellant Division discussed the interplay between direct contract interpretation as compared to work performed by a Subcontractor without a written Change Order. As has occurred many times in the past, the Court once again ruled in favor of strict contract construction instead of allowing arguments of equity to carry the day for the Subcontractor. In this matter, the Subcontractor failed to obtain a Change Order for site conditions which it believed differed from those pursuant to the original plans and specifications and performed work without receiving authorization pursuant to a written Change Order, and thereafter, attempted to bill for the increased costs. This claim was denied by the General Contractor, and thereafter, the Subcontractor sued for these increased costs. In ruling in favor of the General Contractor, the Court stated that the Contract must be strictly construed and if a written Change Order is required than no work must be paid unless this process is followed. The practical application of this case is that either a General Contractor or Subcontractor should follow the Contract carefully and obtain prior approval for any additional work instead of relying upon a clause in the Contract which may authorize said work without a Change Order. In other words, it is best to document rather than to guess.

Technorati Tags: New Jersey

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This week's New Jersey Legal Update will discuss New Jersey's Law Against Discrimination and retaliation in the workplace. John MacDonald and Amy Beth Dambeck, members of the Firm's Employment Litigation group offer suggestions to employers on steps they can take to minimize the prospect of facing retaliation claims by their employees.

You can download the New Jersey Legal Update Podcast # 18 here.(21.2MB)

Technorati Tags: New Jersey : Podcast

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Earlier this week Law.com published another interesting article by Robert Ambrogi. The article, 2005 : Year of the Podcast, provides readers with a basic explination of podcasting and a list of some of the lawyers and law firms that are out there producing podcasts on a consistent basis.

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The winds are changing and it appears that New Jersey courts are taking a closer look at redevelopment plans being proposed in the State of New Jersey. In the past, courts would accept "net opinion" reports of township planners and rubber stamp redevelopment plans. Net opinion reports contain no support, just bare conclusions. Now, courts are requiring condemning authorities to truly prove that any proposed redevelopment plan meets the requirements of New Jersey Law.

In Eretc v. Perth Amboy, 2005 N.J.Super. Lexis 337 (App. Div. November 15, 2005), the Appellate Division of the Superior Court of New Jersey reversed and remanded a trial judge's decision holding that the evidence presented to the planning board was not sufficient to sustain a finding that the properties included in the area in need of redevelopment meet the requirements of the New Jersey Local Housing and Redevelopment Law (N.J.S.A. 40A:12A-5).

After the municipality approved a redevelopment plan, a property owner filed a complaint in lieu of prerogative writ to challenge the municipality's decision. The property owner owned a manufacturing building that was not only in good shape and 75% occupied, but employed 345 people. The majority of the employees lived within five to eight miles of the business. The owner of the business appeared at the planning board hearings and asked numerous questions. As a result, a second investigation was prepared. The council adopted a resolution accepting the planning board's recommendation that the property in question was in need of redevelopment.

At trial, the property owner presented the testimony of his own land planner. The planner attacked the city's evidence and pointed out the deficiencies in the city's expert reports, and explained what the law requires:

You can't just say by reason of dilapidation you're in an area of redevelopment. You have to indicate how that's detrimental to the safety, health, morals, or welfare of a community. And in order to demonstrate that . . . that's where the evidence comes into play."

Without getting into a detailed analysis of the planner's report, the court ultimately found that the city failed to meet its burden of proof of providing substantial evidence on the condition of the property. The planner's report relied upon by the Planning Board and Council contained bare conclusions without any substance.

To defeat a redevelopment plan, a property owner must have a thorough understanding of the criteria used to determine whether properties are in need of redevelopment and, more important, be prepared to attack the evidence offered by the condemning authority. The condemning authority must be prepared to offer an extensive report with detailed findings on the condition of properties in the area to be redeveloped. In the end, land planners and other experts must be retained and work closely with counsel if a plan is to be approved to defeated.

Technorati Tags: New Jersey : Eminent Domain

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