The focus of most pet policies and rules enacted by cooperative and condominium boards is dogs. Some of the more common rules require dogs to be kept on leashes while in common areas, prohibit dogs in elevators, limit the number of dogs per apartment and limit the size of permitted dogs. In most cases, a majority vote by a board is sufficient to amend these rules and policies, and to completely prohibit dogs.

Enforcing policies and rules relating to dogs is often more difficult than passing them. To a large extent, this is due to Section 27-2009.1 of the Administrative Code of the City of New York, which is commonly known as the "Pet Law." The Pet Law was originally passed by the New York City Council in 1983 to prevent landlords from trying to use "no-pet" clauses in Rent Stabilized leases as a pretext for commencing eviction proceedings against tenants with below market rents who coincidentally had pets. In basic terms, the Pet Law prohibits landlords from enforcing "no-pet" clauses in leases against tenants who have "openly and notoriously" harbored a pet for a period of three months or longer.

A significant body of case law involving various courts' interpretations of the Pet Law has evolved in the cooperative and condominium context. Based on this case law, it is clear that the Pet Law applies to cooperative proprietary leases and house rules. More specifically, if a cooperative's board of directors fails to commence legal action to remove a dog from a shareholder's apartment that his been kept "openly and notoriously" in violation of the cooperative's policies or rules for three months or longer, then the cooperative board will usually be prevented from removing the dog pursuant to the Pet Law.

There are many cases where courts have interpreted the meaning of "openly and notoriously." Each case is fact specific, but in broad terms the courts have held that as long as one member of a building's staff is aware that someone is harboring a dog in his or her apartment, then such knowledge is imputed to the building's board and the "openly and notoriously" requirement of the Pet Law is satisfied. It is important to note that a board must commence a lawsuit within three months of its actual or imputed knowledge of a dog being illegally harbored in an apartment in order to defeat a Pet Law defense. Sending a warning letter or a notice to cure is not sufficient.

It is also important to note that even if a Board fails to commence a lawsuit within the three month window required under the Pet Law, this will not prevent a Board from removing a dog whose behavior is causing problems in a building. The Pet Law specifically states that it will not be applicable where the harboring of a pet causes a nuisance or interferes with the health, safety or welfare of a building's other occupants.

Interestingly, whether the Pet Rule applies to condominium boards and condominium unit owners depends where the condominium property is located. There is a split in the decisions by the appellate courts that cover different geographic areas of New York City. The appellate court that has jurisdiction over Manhattan and Queens has ruled that the Pet Law does not apply to condominiums. On the other hand, the appellate court that has jurisdiction over the Bronx, Brooklyn and Staten Island has ruled that the Pet Law does apply to condominiums. Eventually this split will probably be resolved by the State's highest court, the Court of Appeals, or otherwise.

To complicate things a little more, there are additional Federal, New York State and New York City anti-discrimination laws relating to individuals with disabilities. These laws may trump a board's right to remove a dog, even where a dog is kept in violation of a properly enacted policy or rule and the board seeks to timely enforce such rule within the three month window provided under the Pet Law. The penalties for violating these anti-discrimination laws are severe and may include the assessment of fines, punitive damages and an award of counsel fees. However, only a very narrow class of people with dogs fit into the protected categories under these statutes.

In conclusion, a cooperative or condominium board (in the Bronx, Brooklyn or Staten Island) that fails to commence legal action to remove a dog that is being harbored in violation of its buildings' policies and rules within three months of its discovery will probably be barred from enforcing such policy or rule pursuant to the Pet Law. Notwithstanding whether the Pet Law is applicable, a Board may be barred from removing a dog under the anti-discrimination statutes relating to people with disabilities. It is recommended that you consult with legal counsel with regard to any pet-related issues, especially to the extent that disability-related issues are present.

For additional information on this topic, please contact Stephen M. Lasser, at (646) 378-2292, or slasser@stark-stark.com.

Condominium and co-ops throughout New Jersey would incur significant expenses in order to retrofit these older building to comply with the new law. The issue affects over 450 high-rise buildings statewide. The DCA has received numerous letters from the public on this issue regarding the financial impact it would have on these buildings. Community Affairs Commissioner, Joseph Doria, has stated that the potential financial impact of the proposed regulation is one that hard-working families and senior citizens cannot endure at this time.

The Corzine administration announced on Monday, September 15, 2008 that it will not require the pre-1988 residential and office high-rises to be retrofitted with fire suppression systems. The decision settles the controversy of state and fire safety officials for now. Additional measures are being discussed to require fire protection that will work with all parties involved.

We will continue to monitor this proposal and provide timely updates as to its progress.

1. R.1:34-6: Office of Foreclosure: This Rule was amended to increase the scope of Orders that the Office of Foreclosure may enter in uncontested foreclosure actions. While contested foreclosures are referred to the Court, administrative tasks related to uncontested foreclosure actions can be addressed by the Office of Foreclosure.
2. R.4:4-5(c): Service by Publication: This Rule was amended in order to provide the absent Defendant with additional information in the Notice of Publication. The Notice of Publication, in addition to being in the form of a Summons without a caption, providing the municipality and street address of the property subject of the foreclosure action, and setting forth the object of the action, the name of the parties, and the basis for joining such parties, the Rule now requires the following additional information: the docket number of the action, the Court, the County of venue, detailed information about the mortgage, tax sale certificate, or condominium or homeowners association liens, including the parties to the instrument, the recording date, and the book and page of the recorded instrument; the Rule further requires that the Notice of Publication also sets forth information regarding the availability of legal services and lawyer referral services along with telephone numbers.
3. R.4:5-1(b): Case Information Statements: This Rule was amended to require that a Case Information Statement be attached as a cover sheet to Foreclosure Complaints. The form of Case Information Statement is as set forth in Appendix XII-B(2).
4. R.4:64-2(b): Affidavit of Amount Due: This is a new paragraph added to R.4:64-2, which specifies the contents of the Affidavit of Amount Due, and provides reference to the form of Affidavit (Appendix XII-J). The new Rule mandates that the Affidavit be in the form as set forth in Appendix XII-J of the Court Rules, which includes a schedule stating the principal due at the time of default. At the bottom of the schedule a notice must be included, which states that there may be surplus money, and must set forth the procedure for claiming such surplus money.
5. R.4:64-2(c): This is another new paragraph added to R.4:64-2, which sets forth the time limitations for filing the Affidavit of Amount Due. Specifically, the amended Rule requires that the Affidavit of Amount Due be signed and sworn to not more than sixty (60) days prior to filing same with the Office of Foreclosure or Court. The Affidavit must be sworn to by the Plaintiff with personal knowledge, and if not by the Plaintiff, then the Affidavit shall also provide that the affiant is authorized to make the Affidavit.
6. R.4:64-3: Procedure for Withdrawing Surplus Money: This Rule was substantially amended and distinguishes between Motions for Surplus Funds filed by parties named in the Complaint, and from those parties who were not named in the Complaint. In the past, all applications for surplus monies were made directly to the Court. The amended Rule provides that those parties originally named in the Complaint, are to now file their Motions for Surplus Funds with the Office of Foreclosure. If such Motion is unopposed, the Office of Foreclosure can recommend a specific Order to the Court; if the Motion is opposed, then the matter is referred to the Court for disposition. Conversely, Motions for Surplus Funds filed by parties who were not named in the Complaint, must be filed directly with the Court, regardless of whether it is a contested or uncontested Motion.
7. R.4:64-9: Motions in Uncontested Matters: This is a new Rule which requires the foreclosing Plaintiff to place the Defendant on notice as to the procedure to follow if he or she wants to oppose a Motion. Specifically, the Rule requires that the Plaintiff notify the Defendant that the Office of Foreclosure does not conduct hearings for uncontested matters, and that all opposed Motions will be referred to a Court. The Notice of Motion filed with the Office of Foreclosure shall state the address of the Office of Foreclosure, that objections to the Motion must be made within ten (10) days after the date of service, that the Office of Foreclosure does not conduct hearings, that a personal appearance will not qualify as an objection, and that if an objection is filed, the case will be sent to a Judge for resolution.
8. R.4:65-2: Notice of Sale: This Rule was amended to require that the Notice of Sale include an advisory that there may be surplus funds to which the Defendant is entitled, and must set forth the procedure for claiming it.

For easy reference, a catalogue of the 2008 amendments affecting foreclosure actions is set forth in comment 4 in R.4:64-1.

Richard Linderman, Esquire, attended the event which included a community barbeque, catered food, a DJ, and games for the local children. In addition, the Newark Fire Department stopped by to let the children see and tour a working fire engine. The Community Hills Condominium Association is a long time client of Stark & Stark.

For additional information on this project, please contact Richard B. Linderman at (609) 219-7456 or rlinderman@stark-stark.com.

• Every ton of paper that is recycled saves 17 trees and 7,000 gallons of water
• One fifth of all wood harvested in the world ends up in paper
• It takes 2 to 3.5 tons of trees to make one ton of paper
• In the United States, paper accounts for nearly 40 percent of all municipal solid waste
• Making paper uses more water per ton than any other product in the world

To reduce the amount of paper we use, we are experimenting with filing legal briefs and other legal paper using both sides of a sheet of paper.  We are revising and altering the forms of various legal documents to lower the amount of paper used.   Large documents will be scanned and emailed, instead of mailed and/or faxed.  The firm hopes to have software perfected shortly to permit the creation, and dissemination, of invoices for legal services, electronically, with the preparation and/or revisions to those invoices done electronically as well.  A goal for 2009 is to file all collections complaints and collection-related pleadings via the court system's electronic filing program, eliminating paper filings altogether.  We already manage our collection practice via OCATS - Online Community Association Tracking System.  Via OCATS, monthly status reports - often several pages long - can be received, reviewed and shared with boards, all electronically.  Management can refer new collection matters to us via OCATS, without faxes or mailings, as account histories and other information can be shared electronically.  Also, we post governing documents, debtor correspondence, payment plans, etc. on OCATS, so our clients need not print them; they are viewable via the internet 24 hours a day, seven days a week, 365 days a year.

 
For additional information on helping your community go green, please contact David J. Byrne at (609) 895-7365, or dbyrne@stark-stark.com.

It's incumbent on management, board members and others to learn about all of these existing laws, and those that are pending in a general sense, but also to be proactive with respect to community associations and energy use.

For additional information on helping your community go green, please contact David J. Byrne at (609) 895-7365, or dbyrne@stark-stark.com, or Megan M. Christensen at (609) 895-7253, or mchristensen@stark-stark.com.

TIPS FOR HOMEOWNERS:

• Boost your home ventilation by installing ceiling fans
• Install Compact Fluorescent Lightbulbs (CFL’s) where ever you have standard incandescent lightbulbs
  • A CFL uses 75% less energy than a regular light bulb and can last up to four years
  • Turn off your lights when they are not in use
• Install double panel windows and make sure they are sealed properly
  • A crack as small as 1/16th of an inch around a window frame can let in as much cold air as leaving the window open 3 inches
• When doing house renovations, opt for thicker insulation
  • Many contractors will do this automatically
• Install high efficiency furnace and water heaters
  • For every 10 degrees you lower the temperature of your hot water heater, you reduce the heater’s energy consumption by 3-5%
  •  Insulating your water heater will reduce the heat lost through the walls of the tank by 25-40%
• Use only Energy Star Appliances
  • Many energy efficient appliances are exempt from sales tax or are tax deductible
• Lower temperature for heating and raise temperature for cooling
  • This could make a big difference in your monthly bills
• Install Clotheslines
  •  Association approval permitting
• Indoor Painting
  • A heat reflecting filter can be mixed into paint and applied to walls that will retain warmth in the winter and keep warmth out in summer
    
  • Choose the right colors

TIPS FOR ASSOCIATIONS:

• Install wind generator systems
• Use compost piles
• Install retractable window awnings
• Roof coloring
  
  • Choose the right colors
• Start a recycling program
  
  • Many municipalities offer rewards or "points" programs

By employing some of the above recommendations, you may be well on your way to making a difference in your community.
 

For additional information on helping your community go green, please contact David J. Byrne at (609) 895-7365, or dbyrne@stark-stark.com, or Jennifer Brick at (609) 791-7018, or jbrick@stark-stark.com.

The attitude of your members and your association’s own governing documents will impact how proactive you can be. However, it is important to note that both the Pennsylvania Condominium Act (“PCA”) and the Uniform Planned Community Act (“UPCA”) (collectively, the “Acts”) can reasonably be interpreted to allow for the type of change the Green Revolution demands.

For instance, diminishing the amount of paper is something even the most modest reformer can accomplish. Associations should replace routine paper mailings with email communications and/or website designations for such things as notice of meetings, meeting minutes, copies of budgets and financials, work orders, and even payment coupons. Providing the homeowners with a means to access such relevant information via a website and/or an email blast is both beneficial to the environment and cost-effective, saving the Association hundreds of thousands of dollars.

There are only two relevant sections of the Acts that specifically require the Association to provide certain documentation to the homeowners. Section 3303 of the PCA and Section 5303 of the UPCA specify that the executive board shall deliver to all unit owners copies of the budget and any notice of a capital expenditure. Deliver is defined as “turnover to the intended recipient”. Thus, delivery of such documentation via email and/or website would not offend the Acts. Section 3308 of the PCA and 5308 of the UPCA provide that Notice of Meetings shall be hand delivered or sent prepaid by United States mail to the mailing address of each unit or any other mailing address designated in writing by the unit owner. Certainly, in 2008, it is reasonable that the phrase “other mailing address” referenced in the Acts could very well be an email address.

The Acts are void of any further provisions requiring delivery of documentation, thus allowing the Association flexibility in communicating with homeowners and providing information in a paperless community.

Moreover, in the past storing/retaining documents in compliance with the Acts, specifically Section 3316 and 5316, meant documents would be printed, placed in binders and stored on shelves or in filing cabinets, in the event that a unit owner requested an examination of such documentation. The days of printing hard copies for storage are long gone. The law only requires that Association business records be retained and made reasonably available. All business records, whether they be financials or meeting minutes, should be stored within the Association’s hard drive and if copies are necessary, same should be made available on discs and/or flash drives for distribution purposes.

Reducing paper is probably the most easily implemented and effective change that you can make as a property manager. However, you are also empowered to influence decisions with regard to the common property and lead the way by example of how members can modify their own property to be more eco-friendly. Elicit bids from only green service providers, encourage the practice of xeroscaping, enforce your Association’s recycling policy, install florescent or led lights, use motion sensory lights in clubhouses, management offices and recreation courts and perhaps even set aside an area of common ground for composting.

For additional information on helping your community go green, please contact Megan M. Christensen at (609) 895-7253, or mchristensen@stark-stark.com.

In any community association or cooperative there are two (2) classes of restrictions: (1) restrictive covenants that are set forth in the initial governing documents created at inception, which are fixed forever absent an amendment typically authorized by the members or shareholders; and (2) rules and regulations that are adopted by the board, which are subject to change with ease, upon majority vote of that same board. When interpreting, enforcing and/or waiving either covenants or rules, boards must act only as authorized by their governing documents, or not act when action is not required by those governing documents. Boards must also act, or not act (as the case may be) in good faith and with reasonableness. This is often referred to as the "business judgment" rule.

When faced with the "green revolution", boards have great flexibility when it comes to adopting and then enforcing "rules", as their existence and the substance are not contained in the original governing documents but reflections of the norms, standards and opinions of then community's leadership at that time. For instance, with respect to a HOA, the declaration may very well provide that no exterior modifications may be made by owners without the prior consent of the board. In this context, modifications are not prohibited per se. They are in fact specifically allowed so long as approved by the board. So, the board can be flexible in relation to what it will approve, and what it will not. A board's fiduciary duty requires it only to abide by the governing documents, and act in good faith and be reasonable. A board is not required to deny all requests so as to protect against claims of discrimination (i.e., a board can approve an owner's request that he be allowed to install landscaping in a front flower bed that is less dependent on water, while still denying that same owner's request that he be allowed to maintain a birdbath in that very same flowerbed). A board is not required to approve all requests so as to be able to approve some, or be labeled discriminatory. A board can use discretion when enforcing, waiving, creating and/or adopting rules, especially in relation to owners' eco-friendly modifications and/or actions.

When faced with the "green revolution", boards have less flexibility when it comes to enforcing, applying or interpreting "restrictive covenants" that are contained in the original, recorded, master deed, declaration and/or bylaws. Absent formal owner-approved amendment, boards may very well be obligated to deny what may be an eco-friendly modification or action. While not ignoring existing restrictive covenants, a board may have the ability to interpret a provision in a variety of ways, based on the then prevailing societal norms. For instance, many master deeds, declarations and/or bylaws prohibit owners from using their units and/or homes for commercial practices and/or for business. However, such provisions have been interpreted by courts and attorneys, over the past several years, as only prohibiting commercial practices that have an impact on the community (i.e., traffic, noise). Such an "interpretation" was necessitated by the growth of the amount of people working from home. It would simply be contrary to the public policy of our communities to contend that an owner cannot transact business from home when that business has no impact on the community's members, and when, in all likelihood, the member would not even know that business is being transacted.

When it comes to the "green revolution", public policy considerations may more often influence the interpretation and/or the enforceability of our restrictive covenants. There is no greater example of this than the famous United States Supreme Court case Shelley v. Kraemer, decided in 1948. In 1911, owners within a neighborhood inserted a restrictive covenant into all of their deeds that prohibited each from allowing any home to be occupied by "people of the Negro or Mongolian Race". In 1948, when asked to enforce this restrictive covenant, the Supreme Court refused, instead ruling that the courts were precluded from enforcing such a restrictive covenant as it was repugnant and against public policy. The needs, interests and norms of society had simply changed around a restrictive covenant created in a different time.

In the end, boards should be creative, thoughtful and flexible in relation to eco-friendly technologies, ideas, actions and/or modifications on the one hand, and mindful of their fiduciary duties on the other. That duty does not compel any particular action or inaction. It compels on respect for the governing documents, good faith and reasonableness.

For additional information on helping your community go green, please contact David J. Byrne at (609) 895-7365, or dbyrne@stark-stark.com.

 
The Bill, initially introduced by Senator Christopher J. Connors, Assemblyman Brian E. Rumpf and Assemblyman Daniel M. Van Pelt in January of this year, requires the purchaser of a property in an age-restricted community to certify that the person occupying the residence meets the age requirements of the community. This would assist adult communities in complying with quotas established for the "housing for older persons" exception from the federal "Fair Housing Amendments Act of 1988."

Currently, federal law states that 100% of the resident in a community built for occupants 62-years of age or older must be 62-years of age or older. Whereas, communities intended for residents 55-years of age or older, only need to have 80 % of the residents and one person per household be 55-years of age or older.
 

I am pleased to announce that SB 88 has been signed into law. This Bill will assist in creating a method of ensuring compliance by age-restricted communities with federal law. You can read more on the passage of Senate Bill 88/Assembly Bill 305 here.

The seminar will offer different viewpoints on the topics of Capital Reserve Studies and community projects. Several engineers will discuss the logistics of Capital Reserve Studies, while Ms. Barrett and several other attorneys will discuss the procedural and legal aspects of these projects.

The article discusses the Predatory Towing Prevention Act, signed into law in October of 2007 by Governor Corzine, which primarily increases oversight of tow companies. Ms. Barrett discusses the impact The Act will have on a community associations abilities to tow vehicles from private property areas.

You can read the full article here (PDF).

The article discusses New Jersey’s Municipal Services Act as it turned 18 earlier this year. The Act states that a municipality must either provide certain services to a private community or reimburse that particular private community the cost of those services, including snow removal, collection of trash or recyclables, and the lighting of roads. Currently, New Jersey remains the only state in the union with such a statute. Mr. Byrne discusses the history of The Act, the effects The Act has had on community associations in New Jersey and how The Act relates to the New Jersey’s Planned Real Estate Development Full Disclosure Act.

You can read the full article here (PDF).