New Jersey Lawyer & Attorney : Stark & Stark Law Firm : New Jersey Law Blog

Recently, the Appellate Division of the State of New Jersey in Hodges v. Feinstein, Raiss, Kelin & Booker, LLC declared that law firms that regularly file summary dispossess action (aka “evictions”) for non-payment of rent are subject to the Fair Debt Collection Practices Act (“FDCPA”). Additionally, the Appellate Division held residential evictions for failure to pay rent must now be made by verified complaint. 

This decision is very important for landlords and their attorneys since failure to comply with the FDCPA’s collection procedures could subject the landlord and the law firm to attorneys fees, costs and damages.

Hodges involved two sisters, Renita Hodges and Rochelle Hodges. The sisters resided in separate apartments in Newark’s Sotnas Garden Apartments operated by the Sasil Corporation. The rent was subsidized by the United States Department of Housing and Urban Development, (“HUD”). The HUD regulations define rental obligations as a percentage of the adjusted monthly household income. However, the landlord’s lease defined additional rent as late charges, reasonable attorneys fees and court costs.

Due to the Hodges sisters regular arrearages, the landlord directed the law firm to file an eviction action. In the complaint, the firm listed non-payment of rent, which encompassed the lease’s defined arrears for all rent, including late charges, attorneys fees and costs. 

The sisters counterclaimed for, among other things, violating the FDCPA. They claimed that the lease requirement did not circumvent the federal HUD definitions of rent. Further, the landlord did not inform the Hodges that they were required to pay “only” the statutory defined rent as provided under HUD to avoid eviction. The trial court granted the landlord’s eviction action and dismissed all counts by the Hodges. The Hodges then filed a motion for leave to appeal. 

The Appellate Division held that the law firm was a debt collector under the FDCPA, citing:

Whether the available remedy in a summary dispossess action is possession, damages, both, or some other result, is of little consequence. The nature of the threat employed to garner payment does not alter the fundamental fact–the reality–that debt collection is attempted, held that in practice eviction proceedings are a powerful debt collection mechanism.

The Appellate Division then referred the matter to the Special Civil Part Practices Committee to draft for the court’s consideration proposed rules to harmonize the FDCPA with the state’s eviction proceedings. In the interim, the Appellate Division has required that all summary dispossess complaint to be verified and expressly state that creditor’s identify and the amount of the rent that must be paid to the landlord or the clerk before 4:30 p.m. on the day of trial.

This opinion is important to both residential and commercial landlords. Before attempting to evict tenants, the landlord should confirm with their attorney the correct amounts owed. As in Hodges, a contractual obligation in a lease for additional rent will not simply override the Federal law that limits the rent.   Although this case is directed to residential landlords, commercial landlords should take heed as well in reviewing their leases and accountings. 

Following are some questions to consider before proceeding with an eviction:

1. Has a New Jersey Attorney Reviewed the Lease? It is important to have an attorney licensed to practice law in the State of New Jersey review the lease to make sure that it complies with State and Federal law ;
2. Do any Federal or State statutes preempt? Your attorney should be able to advise if any Federal or State statutes specifically define rent, which would only allow a certain portion to be collected. If so, then you may need to re-inform the tenant of the amount due and owing before commencing suit;
3. Does the lease provide for collection of attorney fees as additional rent? To collect attorney fees, generally there must be either a contractual arrangement or a statute that provides for such collection. For eviction actions, to include attorneys fees as rent, it must be specifically defined as additional rent;
4. Who will testify to the amount owed? If the matter is contested, you will need to submit proofs and testimony to show the amounts due and owing. It’s a good idea to have your attorney review the lease and accounting with whomever is to testify. Further, its important that the person testifying have actual knowledge of the books and records, as well as authority to testify; and
5. Have all notice provisions been complied with? Before your file the eviction action, make sure you’ve complied with all notice provisions. Your attorney should advise of the specific notice provisions that need to be followed under the lease, as well as the Fair Debt Collection Practices Act and New Jersey Anti- Eviction Act, if applicable.

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For those who work on construction jobs, getting paid is certainly far better than the alternative. Creditors with a lien are in a much better position to be paid, particularly if a bankruptcy filing enters the equation. It is critical, therefore, for creditors to understand their rights under New Jersey law.

The New Jersey Construction Lien Law (the “Lien Law”) replaced the old Mechanic's Lien Law in 1994. Neither of these laws is applicable to public projects. The new Lien Law (N.J.S.A. 2A:44A-1 et seq.) eliminated the filing of a Mechanic's Notice of Intent. Instead, it is necessary to file certain information within 90 days following the date of the last work, services, materials or equipment provided with the Clerk of the county in which the property is located.

A lien claim may only be filed if there is a written contract between the lien claimant and its customer (whether it be the owner, contractor or subcontractor). A lien claimant will lose any rights that it may have to enforce the lien, and the lien itself, if legal action is not instituted within one year of the date of the last work under the contract. The one-year time period starts from the time of last work or services provided, not from the date of the filing of the lien.

If the project is “commercial”, as opposed to “residential”, a lien claimant is entitled to, but is not required to, file a "Notice of Unpaid Balance and Right to File Lien" (NUB). A NUB is also filed with the Clerk of the county in which the property is located.

A lien claimant must take additional steps on a residential project. The Lien Law includes the following under the definition of residential: a one- or two-family dwelling; a condominium; a housing cooperative; and a townhouse development. However, the distinction between residential and commercial is not clear under the law, particularly with respect to work performed on common elements such as drainage and streets.

If work is done under a residential construction contract, the lien claimant must do more to insure that the lien is properly filed and perfected. These steps include: filing a NUB; serving a Demand for Arbitration under the American Arbitration Association program created for residential construction lien claims, and then, if successful in the Arbitration, filing the lien claim with the Clerk in the county in which the property is located. All of these steps must be completed within 90 days from the date of the last work, services, material or equipment provided.

A Bankruptcy Judge in New Jersey recently ruled that lien claimants on what arguably was a commercial project had to follow the residential lien requirements, which included a NUB filing. It was also ruled that if the lien filing process was not completed before the bankruptcy petition was filed, the creditor did not have a valid lien. It is therefore very important to address payment and lien issues promptly and aggressively or your lien rights may be lost.

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Timothy Duggan, Shareholder in Stark & Stark's Real Estate Group, was quoted in Sundays Trenton Times article, More Owners Facing Foreclosure - Many Paynig a Price For Easy Credit.

You can read the full artilc here.

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In a 2006 case entitled Burlington Northern & Santa Fe Railway Co. v. White, the United States Supreme Court opened the door to employee lawsuits based on alleged retaliatory actions taken by an employer.  In the past, the courts were reluctant to allow a case to go forward unless the employee was able to show that the alleged retaliatory conduct impacted his or her compensation, terms, conditions or privileges of employment.   Now, however, in Burlington Northern, an employee must only show that a reasonable person would have been dissuaded from exercising his or her rights as a result of the employer’s retaliatory actions.

The Burlington Northern Court is disconcerting to employers as it appears to further expand the law of retaliation available to an employee.  Exactly what kind of employer actions would be unrelated to an employee’s employment, but are nevertheless actionable under discrimination laws, is unclear.  However, it appears that the Court intended to broaden the scope of a potential retaliation case thereby giving the employee additional ammunition in an action against the employer.

Employers need to understand that the new scope of retaliation available to an employee has been broadened.  Managers and human resource professionals must be aware that the expanded Court view of retaliation may hold an employer liable for actions that in the past would not have been actionable.

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Daniel Haggerty, Shareholder in Stark & Stark's Real Estate Group, was mentioned in Sunday's Trenton Times. Mr. Haggerty will be receiving the Founders Award at the 13th Annual Martin House Dinner Dance this weekend.

The Martin House organization assists families and children with housing and educational services. Mr. Haggerty will receive this year's Founders Award in appreciation of his dedication and service to the Martin House over the past 15 years.

You can read the full article here.

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Paul Blankman, Firm Administrator of Stark & Stark, authored the article Getting a Grip on Case Management on April 20, 2007 for Law Technology News. The article discusses the need for and implementation of a case management system, intended to provide greater efficiency and organization, permitting access to all case information in one central spot.

You can read the full article here.

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Timothy Duggan, Chair and Shareholder in Stark & Stark's Real Estate, and Condemnation  groups, authored the article Balancing Redevelopment and Property-Owner Rights in the recent issue of NJ Biz Magazine.

You can read the full article here.

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The EEO-1 Report, formerly known as the Employer Information Report, is a government form requiring qualifying employers to provide a count of their employees by job category and then by ethnicity, race and gender. The EEO-1 Report is submitted by employers to both the EEOC and the Department of Labor, Office of Federal Contract Compliance Programs.

The EEO-1 Report must be filed by employers with:
    1. federal government contracts in excess of $50,000 and 50 or more employees, and,
    2. by employers who do not have a federal government contract but have 100 or more employees.

The EEO-1 Report is filed annually. The EEOC uses the data contained on the EEo-1 to support civil rights enforcement as a tool to collect from private employer's annual workforce data. The EEOC also uses the data to analyze employment patterns, such as the representation of female and minority workers within companies and industries, and to review the sex, ethnicity and race of the employees.

Recently, the EEOC filed a federal lawsuit against 84 Lumber. The EEOC is attempting to compel 84 Lumber to complete EEO-1 Reports. Apparently, since 2005, 84 Lumber has not turned in its annual EEO-1 Report. Qualifying companies should beware of the EEOC monitoring of the EEO-1 for enforcement purposes and the ramifications if the EEOC believes that the company is hiring or firing employees in a discriminatory manner.

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This week's New Jersey Legal Update podcast is an interview with Tony Foley, President of World Franchisors. This podcast will address when is the right time to venture into the international market, how franchisors can support franchisees outside of the United States and what legal regulations franchisors need to be aware of before entering into the international franchise market.

This week's New Jersey Legal Update is presented by Adam Siegelheim, member of Stark & Stark’s Franchise Group.

You can download the New Jersey Legal Update Podcast here. (5.6 MB)
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In light of yesterday's bankruptcy filing by Rockaway Bedding, suppliers to the retail chain need to be aware of how to proceed in protecting themselves for the goods they have shipped but not yet been paid for.

Section 503(b) of the Bankruptcy Code allows administrative-expense status to all claims for "the value of any goods" received in the ordinary course of business by a debtor within 20 days before the bankruptcy filing. The supplier must request administrative-expense status. By doing this, the supplier is in a better position than unsecured creditors to be paid, since a Chapter 11 plan of reorganization cannot be confirmed unless administrative claims are paid in cash on the effective date of the plan. Unsecured creditors typically receive only a fraction of their claims.

Suppliers of goods have another method to be paid ahead of unsecured creditors. They may seek reclamation of goods sold to a debtor in the ordinary course of business under Section 546(c) of the Bankruptcy Code. A supplier must demand in writing reclamation of such goods not later than 45 days after delivery. Suppliers must move quickly or their right to reclaim will be lost. If the 45-day period has not expired as of the filing of a bankruptcy case, a supplier will have an additional 20 days after the filing of the case to demand reclamation of the goods sold. A reclamation demand is "subject to the prior rights" of a holder of a security interest in the goods sold.

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Earlier today Rockaway Bedding filed for bankruptcy protection in the United States Bankruptcy Court located in Newark, New Jersey.  Rockaway bedding has numerous retail locations throughout the tri-state area and is seeking to reorganize its affairs.  The company will undoubtedly see the affects of the recent changes to the bankruptcy code and although seemingly subtle at first glance, the amendments to the bankruptcy law have shifted the balance of power in favor of landlords.

Under the prior law, a debtor was required to make a decision on whether to assume or reject a commercial lease within 60 days of filing for bankruptcy protection. The bankruptcy court retained discretion to extend the time period indefinitely, often times until the end of the bankruptcy case (which could take several years). Under the new law, the initial 60 day time period has been extended to 120 days. However, the court may only grant one extension for an additional 90 days. After this initial seven month time period, the time to assume or reject a commercial lease can only be extended with the written consent of the landlord.Although seemingly subtle at first glance, the amendments to the bankruptcy law have shifted the balance of power in favor of landlords.

This change will present new challenges to bankrupt tenants, especially retail chains such as Rockaway Bedding. First, debtors will have to spend more time during the pre-bankruptcy planning process evaluating their operations in order to be in a position to know which locations shut down. Equally challenging will be determining when to file for bankruptcy protection. For example, many retailers make bankruptcy decisions based upon the results of the Christmas season. Under the old law, a debtor could file after a poor Christmas season and be confident that it would be able to continue to operate through the next Christmas season before deciding which leases to assume or reject. Between the two seasons, the debtor could implement cost-saving programs and have time to evaluate the operating results over a 12 to 18 month time period. The new law changes this time frame.

The second major change is the new limitation on the “exclusivity period” in a Chapter 11 bankruptcy case. Under the old law, only the debtor was permitted to file a disclosure statement (the first step in confirming a plan) during the first 120 days of the case. The debtor was required to obtain plan acceptance within 180 days of the bankruptcy petition. However, like the time period to assume or reject a lease, the court retained discretion to extent the exclusivity period without limitation. Under the new law, Congress set a deadline for extension of exclusivity periods of 18 months for filing the disclosure statement, and 20 months to solicit acceptance of the plan.

The new deadlines for exclusivity will once again put pressure on the debtor to do a better job in its pre-bankruptcy planning and have its “ducks in order” earlier in the case. Also, as the debtor gets closer to the end of the exclusivity period, creditors will gain additional negotiating leverage since when exclusivity expires, any creditor (including the unsecured creditors committee) can file its own plan of reorganization or liquidation.

Since debtors will have less time to decide whether to assume or reject commercial leases, Congress sought to balance the law by limiting the otherwise severe impact of prematurely assuming a lease. Under the old law, rejection damages from a lease that was assumed and subsequently rejected, were treated as an administrative claim and required to be paid in full before unsecured claims received anything. Under the new law, the rejection damages arising from a lease that was assumed and subsequently rejected will be capped at a much lower amount.

In order to remedy certain abusive practices, Congress also added additional grounds for the conversion of a Chapter 11 case to a Chapter 7 liquidation. Now, it will be easier for creditors to seek to end a case and have the assets liquidated.

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It is a fact that approximately 80% of all new housing built in the United States is built within some form of community association, whether it be a condominium, cooperative or homeowners association.  In 2005 alone, over 9,000 condominium units were approved for sale by the New York State Attorney General’s office.  Furthermore, for the second year in a row, condominiums in Manhattan have outsold cooperatives.  Those in the market for a new home should consider the various differences between a condominium, cooperative, or homeowners association. 

Living in a cooperative or condominium offers homeowners a whole new system of benefits and costs to be weighed.  Whereas ownership of condominiums provide the benefit of easy resale and mortgage refinancing, a homeowner has little to no control over who his or her neighbor may be.   On the other hand, co-ops provide the distinct ability for the cooperative to take on a unique identity and sense of community over time.  In general, condominium association boards do not have the ability to approve the resale of a unit.  Whereas, in Manhattan, cooperative boards have significantly more discretion when it comes to accepting or rejecting applicant owners or tenants.  It should also be noted that the powers of co-op boards differ between New York and New Jersey.  Another notable difference is that many New York cooperatives have a transfer fee “flip tax” that must be paid at the time of the sale of a unit.

Furthermore, a basic difference between condominiums and cooperatives is the very nature of the interest possessed.  No matter whether the condo is in a basement or a penthouse, the interest being owned is an actual piece of real property.  However, in a cooperative, the resident owns shares of stock in the cooperative cooperation.

One should consider the significant differences between obtaining financing for the purchase of a co-op unit or condominium unit.  To purchase a condominium unit, the only restrictions are those imposed by the lender or mortgage company. However, financing the purchase of shares in a co-op may include annual income restrictions and down-payment minimums.  Additionally, both your finances and personal history can come under scrutiny by a cooperative board.  All these issues and more should be taken into account by those seeking their new home.

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Businesses and individuals often engage in negotiations with regard to any number of issues through the forum of e-mail.  Such negotiations pose a variety of risks because of the fact that the negotiations are in writing and could be used for purposes that the sender did not intend.  For instance, the sender of an e-mail should exercise caution during preliminary discussions to transfer or share rights in a copyright.  Even though the Copyright Act requires that any such agreement must be signed, there is a high probability that the Third Circuit would find that an e-mail satisfied such a requirement.  
   
The Copyright Act, at 17 U.S.C. 204(a), provides:

• A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent.

17 U.S.C. 204(a).  No cases specifically address e-mail signatures with regard to this statute.  However, federal courts have applied the statute of frauds, and the decisions interpreting it, to this section of the Copyright Act.  See Pamfiloff v. Giant Records, Inc., 794 F.Supp. 933 (N.D.Cal. 1992).  The statute of frauds case law generally supports the enforceability of an e-mail contract.  For example, in Bazak Intern. Corp. v. Tarrant Apparel Group, the Southern District of New York found that including a typed “signature” at the bottom of an e-mail satisfied the signature requirement in the statute of frauds contained in the Uniform Commercial Code.  378 F.Supp.2d 377, 386-387 (S.D.N.Y. 2005); see also Shattuck v. Klotzbach, 14 Mass.L.Rptr. 360, 2001 WL 1839720 (Mass.Super. 2001).  
   
Though there are no cases in the Third Circuit directly supporting this principle, it seems likely that the Third Circuit would make the same findings.  That court, applying the Pennsylvania Uniform Commercial Code’s statute of frauds has stated, “Any mark or symbol-including a typewritten name-will be deemed to constitute a signature for the purposes of the statute if it is used with the declared or apparent intent to authenticate the memorandum.”  Flight Systems, Inc. v. Electronic Data Systems Corp., 112 F.3d 124, 129 (3d Cir. 1997) (citing Hessenthaler v. Farzin, 388 Pa.Super. 37, 564 A.2d 990, 993 (Pa.Super.1989)); First Valley Leasing, Inc. v. Goushy, 795 F.Supp. 693, 696 (D.N.J. 1992)(finding that a company’s letterhead on an invoice was sufficient to satisfy the statute of frauds’ signature requirement).  It seems likely, especially considering the findings of other jurisdictions cited above, that these principles would also apply to e-mail signatures.  
   
Therefore, if the content of an exchange of e-mails would otherwise satisfy the requirements for contract formation, the signature requirement of the Copyright Act would most likely not protect a party from the enforcement of the terms of such e-mails.  As a result, parties should exercise caution in composing e-mails containing negotiations for the transfer of rights to a copyright. 

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The quick answer to this question is “not necessarily.”

The purpose of alimony is to maintain the dependent spouse at the standard of living he/she had become accustomed to during the marriage.  By law, alimony automatically terminates at the death of the payor, the death of the payee or the remarriage of the supported spouse.  It will also terminate upon reaching the number of years specified in the Court Order or Agreement in the case of limited duration alimony or rehabilitative alimony.

In all other cases, alimony will continue until modified by Court Order.  In order to obtain modification, the requesting party must show that there has been a substantial change in circumstances since the original alimony obligation.  Retirement is an obvious change in circumstances, but that does not end the inquiry.

In the case of Dilger v. Dilger, a former husband elected to take an early retirement at the age of 62 stating that it constituted a change in circumstances sufficient to warrant a termination of his alimony obligation.  The Dilger Court held that in assessing whether the early retirement constituted a change of circumstances, it would have to inquire as to whether the retirement was in good faith in light of all of the surrounding circumstances and whether it was reasonable for the supporting former spouse to elect early retirement.     

In the similar case of Deegan v. Deegan, the payor Husband was just short of 62 years of age when he decided to retire. His union had offered an attractive pension option and work was slow.  He perceived a real possibility of being laid off, and the physical nature of his work was becoming increasingly difficult with age.  It was held that even in a case in which the retiring spouse has been shown to have acted in good faith and has advanced entirely rational reasons for his actions, the trial judge will be required to decide one pivotal issue:   “Whether the advantage to the retiring spouse substantially outweighs the disadvantage to the payee spouse.  Only if that answer is affirmative, should the retirement be viewed as a legitimate change in circumstances warranting modification of a pre-existing support obligation.”  
   
In the case of Silvan v. Sylvan, the Appellate Division held that under appropriate circumstances, retirement at the age of 65 may constitute a sufficient change of circumstances to warrant a modification of alimony.  The Appellate Court sent the case back to the trial court for a hearing to consider the following factors:  the age gap between the parties; whether the agreement addressed the issue of future retirement; whether the retirement was voluntary or mandatory; whether the retirement was earlier than might have been anticipated at the time of the agreement; the financial impact of retirement on both parties; the motivation which led to the retirement; the degree of control retained by the parties over the disbursement of the retirement incomes; and whether either spouse had transferred assets to others, thus reducing the amount available to meet his or her financial needs and obligations.  
  
It was specifically stated in the Silvan case that “we do not hold that one who voluntarily retires is automatically entitled to a reduction in alimony.  Rather, we conclude only that a party who retires in good faith at age 65 is entitled to a hearing on whether there is such a resultant change in circumstances that the alimony obligation should be modified.”     

In the recent case of Bosch v. Alles-Bosch, the Plaintiff/Husband moved for a termination of alimony when he retired as a pilot from the United States Air Force Reserve at the age of 55.  The parties’ Property Settlement Agreement acknowledged that the Plaintiff’s present employment would require him to retire in or about January of 2006 (when he was 55).  The agreement went on to state that this representation was being made without prejudice to the position of the Defendant/Wife relative to the issue of alimony.  After retirement, the Husband did not obtain further employment and intended to train and lease horses which would generate minimal income.  The Court held that Plaintiff’s retirement from the Reserves represented a changed circumstance; however, it did not represent grounds for the Plaintiff’s complete retirement from gainful employment.  Although the parties’ agreement acknowledged that retirement from the Reserves would occur in January of 2006, it did not include the Defendant/Wife’s consent to the termination of alimony.  Further, there was no evidence in the record to suggest that the Defendant/Husband was unemployable in any other field.  It was noted that although many civil service employees retire at 55, they then obtain non-civil service employment, and continue to contribute to Social Security, working until age 65 or more, so additional retirement funds are available.  
   
From a review of case law, retirement, even at the age of 65 does not guarantee a total termination of alimony.  There may be a modification of alimony at that time; however, each case revolves around its own particular set of facts and the Court must weigh all of the relevant factors in determining whether there should be modification and/or termination.  In order to avoid this type of hearing upon retirement, it is crucial to deal with the issue of retirement in your Property Settlement Agreement.

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This week's New Jersey Legal Update podcast is an interview with Dave French, Vice President of the International Franchise Association. This podcast will address some of the recently proposed legislation in various states, as well as a discussion on the current status of the Employee Free Choice Act.

This week's New Jersey Legal Update is presented by John MacDonald, member of Stark & Stark’s Franchise Group.

You can download the New Jersey Legal Update here. (5.92 MB)

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If you have listened to the radio in Central to North Jersey these past few weeks, you may have heard several advertisements for the sale of newly constructed condo-hotels in Florida.
           
Condo-hotels?  Must be something new, right?

Actually, condo-hotels have been around since the 1970s, mostly on the shores of Hawaii or the ski slopes of Colorado.  However, in the past five years, condo-hotels have undergone a rebirth, emerging as hot spots in the resort market, mostly in Florida, Colorado and Hawaii, but also in large metropolitan areas such Miami, Chicago and Las Vegas.

So how is a condo-hotel different from a regular condominium?  Generally, while each condominium unit in a condo-hotel is owned individually, these units are rented out by the hotel developer/operator like a normal hotel, and the owners share facilities and common areas with not only other unit owners, but also with hotel guests.  Moreover, in addition to such facilities and services provided in normal condominiums, condo-hotel owners and guests may also share spa and gym services, front desk services and food services.  One question that arises is who has control over these facilities and services – the unit owners or the developer/operator?  The answer depends on the condominium’s governing documents and separate property/maintenance agreements.  Owners in condo-hotels often agree to give up certain rights to make decisions, including the right to decorate and maintain their individual units, in order to comply with uniform standards, especially those participating in the hotel’s rental program.

For some, these condo-hotels are second homes or vacation getaways.  For others, they are seen as investments with the lure of returns from rentals and appreciation.  The sales pitch is simple – own a little piece of paradise without the hassle of finding renters or fixing a clogged toilet.  However, there are potential pitfalls for the unaware purchasers of these units.  Occupancy is seen as the most troubling factor; namely, how good is your investment if the occupancy rate is at or below 50%?  One condo-hotel in Las Vegas opened in June 2006 to little-to-no fanfare and, unfortunately, has been unable to live up to owners’ expectations for rental revenue, with units going vacant for significant periods.  Additionally, the new construction and emergence of a substantial number of condo-hotel units has created a potential glut of available units on the market.  Another factor to be wary of is the additional fees that may go along with ownership of a condo-hotel unit.  Aside from general monthly maintenance fees, unit owners may also be saddled with maid service/cleaning fees, rental/management fees and furniture replacement funds.  Only time will tell, but for now, that little piece of paradise may come with a higher then expected price tag.
        
If you would like to discuss the contents of this blog and how it affects condominium associations in more detail, please contact one of the attorneys in Stark & Stark’s Community Associations Group.               

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Gary Forshner, Shareholder and member of Stark & Stark's Real Estate, Zoning and Land Use group was quoted recently in the article West Windsor Rite Aid proposal grinds ahead in the Princeton Packet.

You can read the full article here.

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Vincent Mangini, Shareholder and member of Stark & Stark's Real Estate Group has authored the article Cooperation in Redevelopment: Proper planning and cooperation can ensure that your redevelopment is successful, for the February 2007 issue of Northeast Real Estate Business. The article discusses the positive effects redevelopment can have on a community, if the proper rules and regulations are followed to ensure both the property owners and builders concerns are taken into consideration.

You can read the full article here.

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BE AWARE OF ILLEGAL DISCRIMINATION UNDER THE UNIFIED SERVICES EMPLOYMENT AND RE-EMPLOYMENT RIGHTS ACT (USERRA)

An employer who has discriminated against an employee because of his or her miliary service may be in violation of the Uniform Services Employment and Re-employment Rights Act of 1994 (USERRA).  Under the USERRA, an employee who is absent from work because of his or her activation for military service is entitled to reinstatement to his or her position upon return from military service if the employee is qualified.  

A qualified employee has:

1.    Provided oral or written notice of military activation to his or her employer;
2.    Has five years or less of cumulative military service with that particular employer;
3.    Has returned to work or applied for re-employment in a timely manner after conclusion of service;
4.    Has not left the military service with a disqualifying discharge.  

In a recent case decided in 2007 from the United States First Circuit Court of Appeals, entitled Velazques-Garcia v. Horizon Lines, the First Circuit held that an employee only needs to show that his or her military service was a substantial or motivating factor in an employer’s decision to impose an adverse employment action.  The burden will then shift to the employer to prove that it would have taken the adverse employment action regardless of the employee’s military service.

Employers need to ensure that employees who perform military service are treated in the same manner as other employees.  If a termination of employment does occur with an employee who served in the military, the employer must be certain that it can demonstrate a non-discriminatory reason for any adverse employment action taken against that employee.

Further, employers should make efforts to avoid subjecting returning military employees to criticism or harassment that has the potential to create a hostile workplace environment even if the criticism or harassment comes from non-supervisory personnel.

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Adam J. Siegelheim, member of Stark & Stark's Franchise group, authored the article Expanding Your Businses Through Franchising for the April 2007 edition of Mercer Business Magazine.

You can read the full article here.

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