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

On March 5, 2008, the Department of Housing and Urban Development (“HUD”), in conjunction with the Department of Justice, issued a Joint Statement, which reinforced the rights of persons with disabilities to make “reasonable modifications” to their dwellings or, in some cases, to common areas of a building or complex, so that they can fully enjoy the premises.  This Joint Statement is both designed to assist housing providers and community associations to better understand their obligations as well as to encourage persons with disabilities to better understand their rights regarding the “reasonable modifications” provision of the Fair Housing Act (“FHA”).  You can read the Joint Statement here.

Among other prohibitions, the FHA prohibits discrimination in housing based on disability.  One type of action specifically prohibited by the FHA is the refusal of housing providers or community associations to permit reasonable modifications – i.e., a structural alteration – of an existing premises, occupied or to be occupied by a person with a disability, when the modification may be necessary to afford the person with full enjoyment of the premises.  The Joint Statement explains who qualifies as a person with disabilities under the FHA and what information may be requested regarding a disability.  The Joint Statement also discusses the difference between a “reasonable modification” and a “reasonable accommodation” and gives specific examples of what constitutes a “reasonable modification”, which include widening doorways to allow for wheelchair accessibility, installing grab bars in bathrooms or installing a ramp to provide access to a public or common area, such as a clubhouse.  Further, although housing providers or associations are required by the FHA to permit these modifications upon notice and a proper request, in most circumstances, the person requesting a modification is responsible for payment of any costs involved.

If you would like to discuss this legislation or how it affects your community association in more detail, please contact Jonathan H. Katz at (609) 219-7448 or via e-mail at jkatz@stark-stark.com

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In recent months, articles in numerous publications – including Time, The Wall Street Journal and The New York Times – have examined a growing environmental movement that has been dubbed “The Right to Dry”, namely, the right to utilize clotheslines and air-drying in community associations. Individuals and advocacy groups are taking sides – lining up over clotheslines, if you will – regarding the rights of residents to use clotheslines to dry clothes versus the rights of associations to ban or restrict such conduct.


On one side are the pro-clothesline advocates who assert that using clotheslines is energy efficient and environmentally friendly. According to the recent Residential Energy Consumption Survey by the federal Energy Information Administration, clothes dryers consume as much as six percent of total residential household energy usage in America, third behind refrigerators and lighting. In addition, the study found that dryers can emit up to a ton of carbon dioxide per household every year. Opponents of such air-drying rights argue against clotheslines on aesthetic grounds and claim that allowing the unfettered use of clotheslines would adversely affect property values. Some claim design issues in that there is nowhere to place a clothesline without being an eyesore, evoking urban blight, and taking up space in the backyard or encroaching on common elements.


In previous years, those adverse to allowing clotheslines have been successful in persuading community associations across the country to ban outdoor clotheslines. It is estimated that most private condominium and homeowners associations restrict the ability of residents to hang laundry outside; however, those numbers may soon be changing in light of the environmental concerns, proposed legislation and the ability to compromise regarding such restrictions. “Right to Dry” advocates are currently proposing legislation in many states that would limit the ability of associations to restrict the use of clotheslines. While as many as ten states currently have legislation allowing energy-saving devices such as solar panels, only three states – Florida, Utah and Hawaii – currently have laws that specifically protect homeowners’ rights to use clotheslines. Lawmakers in North Carolina, Vermont and New Hampshire are also proposing similar legislation as part of energy conservation measures. In addition, not all clothesline advocates are necessarily advocating doing away with clothesline rules. Some proponents of clotheslines and community associations have found a happy medium in relaxing such restrictions to allow air drying during certain hours – such as weekdays between 10 AM and 4 PM – and/or allowing either retractable or removable clotheslines to eschew neighbors’ aesthetic concerns.

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On January 13, 2008, Governor Jon Corzine signed into law C. 39:4-207.9, which requires that snow and/or ice must be removed from handicapped parking spaces to provide accessibility for disabled persons within twenty four (24) hours after the weather condition causing the snow or ice ceases.  This new provision amends the previous law, which required handicapped parking spaces to be cleared within forty eight (48) hours after a snow or ice storm.  The new provision also increases potential fines for persons who violate the law to up to $1,000 for each parking space that is obstructed.  The full text of this legislation can be found here.

As specified in the text of the legislation, the obligation to remove snow and ice is imposed upon a person “who owns or controls a parking area which is open to the public or to which the public is invited ... ”.  Although it is arguable as to whether the parking areas in a private community association would be considered “open to the public”, and thus fall under the requirements and potential penalties associated with this law, the prudent approach for all community associations with handicapped parking spaces on common property is to comply with these new requirements.  In addition, associations should consider incorporating these requirements into any contracts regarding snow removal services.

If you would like to discuss this legislation or how it affects your community associations in more detail, please contact Jonathan H. Katz at (609) 219-7448 or via e-mail at jkatz@stark-stark.com.  

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In late January, a group of condominium associations and owners filed suit against the Village of Piedmont, charging that Piedmont had violated their civil rights and failed to provide equal protection under the law as a result of unfair taxes and assessments.  The owners allege that Piedmont has taxed them for services they have not received – such as trash collection and snow removal – and that they are required to pay for such services as part of their monthly common condominium charges.  So what are these owners and associations seeking in damages? $85 million...
   
In most states, municipalities provide certain municipal services – such as snow removal, trash collection, recycling and street lighting – to residents of traditional single family homes, but do not offer these same services to residents of condominiums or other common interest communities.  Yet, owners in these communities pay the same property taxes as single family homeowners in addition to their respective common expense assessments, essentially requiring that owners in community associations pay twice to receive basic municipal services, such as a weekly trash pick-up or the plowing of their streets following a snow storm.

Unlike New York, New Jersey addressed this issue of double taxation by enacting the Municipal Services Act, N.J.S.A. 40:67-23.2 to -23.8, which was the first legislation in the country to address municipal services equalization for common interest communities.  Pursuant to this Act, every municipality in New Jersey is required to either provide certain services to each qualified private community within its borders or reimburse the association for these services, including snow removal, trash collection and recycling.  The purpose of the Act is to require “that a municipality enact ordinances to provide the same services along the roads and streets of a qualified private community as it provides to other residents along its public roads and streets” and to eliminate “double payment for some services which the residents of qualified private communities now pay through property taxes and fees to their association.”

While not unique, New Jersey is one of only a few states that provide for such benefits to its residents. New York has not yet followed suit, but the Piedmont lawsuit may begin to change people’s opinions about how condominium associations are taxed and receive municipal services.  Only time will tell how New York will address the issue of municipal services equalization and the problem double taxation of common interest communities. It is possible that the elected representatives in these states will enact legislation similar to that of New Jersey’s Municipal Services Act, which provides at least some relief to community association members.  Until then, owners in these communities continue to pay the same property taxes as single family homeowners on top of their respective common expense assessments, essentially paying double for their municipal services.

If you would like to discuss this issue or how it affects your association in greater detail, please contact Jonathan H. Katz at (609) 219-7448 or via e-mail at jkatz@stark-stark.com.

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Every Who down in Who-ville liked Christmas a lot... but the Grinch, who lived just north of Who-ville, did NOT!  The Grinch hated Christmas!  The whole Christmas season!  Oh, please don’t ask why, no one quite knows the reason.  It could be, perhaps, that his shoes were too tight. Or maybe his head wasn’t screwed on just right.  But I think that the best reason of all may have been that his heart was two sizes too small...

– Dr. Seuss – “How the Grinch Stole Christmas”

With apologies to Dr. Seuss, and with the holiday season fast approaching, many community association boards find themselves in the unenviable position of having to balance enforcing their rules and consider the safety of their residents while trying not to come off looking like Ebenezer Scrooge (before the visits from the ghosts of Christmas past, present and future, of course).  While an association of single-family homes may be less concerned about restrictions than a high-rise condominium or townhouse association, here are some obvious – but often overlooked – rules to think about when it comes to regulating holiday decorations:

(1)     Be Reasonable and Consistent – Unless your Governing Documents require it and there is a compelling reason to do so, do not prohibit residents from decorating the exteriors of their homes for the holidays.  Associations should adopt uniform rules and communicate these rules to the residents so everyone is on the same page as to what they can and cannot display.  Further, if your association does ban holiday decorations, it is essential to be consistent and ban all decorations and displays. 

(2)    Set Reasonable Restrictions – It is reasonable and appropriate to require residents to regulate the time that decorations may be displayed and, sometimes more importantly, when they should be removed.  It is also reasonable to regulate the time of day that lights or other features may be illuminated so as not to create an unreasonable nuisance for neighbors or additional safety issues.  Avoid, if at all possible, venturing into unchartered territory of restricting religious displays, which may open up a proverbial (no pun intended) can of worms.

(3)    Do Not Argue Over Aesthetics – We all know that not everyone has exquisite taste in decorating, but if the board or architectural review committee are arguing over what is tasteful and what is not, it may be time to take a closer look at your rules regarding decorations and open a dialogue with the community about what changes they would like to see.

(4)    Be Mindful of Decorations on Common Elements – While it is not advisable to prohibit homeowners from decorating their own homes, it is perfectly acceptable to ban residents from decorating general common elements without association approval or that could cause damage.  It is also advisable to limit homeowners from affixing decorations to limited common elements if the association is responsible for their maintenance.  And again, associations that do choose to decorate common areas, such as clubhouses, entrance ways or lobbies, should avoid religious displays and be mindful to either keep such decorations general – lights and wreaths, for example – or to take extra care to give equal treatment to all religious affiliations.
           

Overall, it is important to make your holiday decorating rules reasonable and even-handed.  Concentrate on what is most important: location, time and place, size and safety, but not content or aesthetic appeal.  And just remember, as long as they are not dangerous, the ten-foot tall inflatable Santa, Rudolph or Frosty the Snowman won’t hurt anyone (and won’t be on display forever).

If you would like to discuss this issue or how it affects your association in greater detail, please contact Jonathan H. Katz at (609) 219-7448 or via e-mail at jkatz@stark-stark.com.

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On October 10th, a four-alarm fire tore through the upper floors of an eighteen-floor luxury high-rise condominium under construction on the Jersey City waterfront.  According to the Star Ledger, the blaze proved difficult to fight in part because the building water source and fire suppression system was not completed.  Fortunately, there were no injuries and only minimal damages to the building; however, this fire and the possibility of similar fires at older high-rises underscores the logic behind a new proposal by the Department of Community Affairs (“DCA”), which would require older high-rise buildings to add approved fire suppression systems.

While automatic fire suppression systems have been required by state law in residential buildings of six stories or higher since 1989, older condominium and co-op buildings have been exempt from these requirements.  That is until the DCA’s recent proposed amendments to the New Jersey’s State Fire Prevention Code, specifically, N.J.A.C. 5:70-4.17, which would require older high-rises – both residential and commercial – to be retrofitted to include fire suppression systems.  The DCA indicated that the change was prompted as a result of the special hazard and life-safety issues that high-rises represent in rescue and firefighting operations.  The proposed amendments have been submitted by the DCA and are now subject to a sixty day comment period.  If enacted, condominium and co-op buildings would have up to four years to install an approved fire suppression system. 
   
Should the proposed amendments be enacted, condominium and co-ops throughout the State may be on the hook for significant expenses in order to retrofit these older building to comply with the new law.  While experts estimate the cost for putting fire suppression systems into new construction averages between $1.00 to $2.50 per square foot, adding a fire suppression system to an older building is more difficult and much more expensive.  Some estimates range between $5.00 to $7.00 per square foot, which could cost upwards of $25,000 per building.  Such costs would, of course, be bourn by the unit owners, which may find themselves paying a special assessment, especially if the association’s reserves are not sufficient to foot the retrofitting bill.

We will continue to monitor this proposal and provide timely updates as to its progress.  If you would like to discuss this proposal or how it affects your condominium or co-op in greater detail, please contact David J. Byrne or Jonathan H. Katz.

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On August 21, 2007, Governor Jon Corzine signed into law C. 45:22A-48.2, which makes it unlawful for homeowners associations to prohibit the installation of solar collectors on certain roofs of dwelling units.  This legislation, originally introduced in March of 2006, was passed by the Assembly in March 2007, and by the Senate this past June.  The full text of this legislation can be found here.

As specified in the text of the legislation, homeowners associations may not prohibit members from installing solar collectors so long as such collectors are placed on the roof of a single family unit or townhouse unit that is not designated as a common element or common property in the association’s governing documents.  In addition, the association may adopt reasonable rules and regulations to oversee the installation and maintenance of solar collectors with regard to: (1) the qualifications, certification and insurance requirements of individuals or contractors who install such solar collectors; and (2) the location, color, supportive structures and size of the solar collectors that may be placed on the roof.  Further, the association cannot adopt any rule or restriction that would significantly increase the costs of the initial installation of the solar collectors or that would inhibit the solar collectors from functioning at their intended maximum efficiency.

It is important to note that this legislation does not affect the rights and responsibilities of condominium owners and boards pursuant to the New Jersey Condominium Act.  In fact, because the roof of most if not all condominiums are designated as common elements or common property, the decision to install solar collectors on the roof of a condominium would have to be made solely by the condominium association’s board in its discretion.  Any attempt by an individual unit owner in a condominium to install solar collectors on common elements would be violative of the Condominium Act and, most likely, that association’s governing documents.

If you would like to discuss this legislation or how it affects community associations in more detail, please contact David J. Byrne or Jonathan H. Katz.

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Pursuant to New Jersey’s Municipal Services Act, every municipality in New Jersey is required to either provide certain municipal services – such as snow removal, trash  collection, recycling and lighting of roads and streets – to condominium and homeowners associations and co-ops within its borders or, in the alternative, to reimburse these communities for such services.  The purpose behind the Act is simple – eliminate the double taxation of community association residents.  While not unique, New Jersey is one of only a handful of other states that provide for such benefits.  Now, other states and individual municipalities are starting to take notice.

Earlier this year, Bill 070073 was introduced in the Philadelphia City Council, which, if enacted, would provide a tax credit for owners of condominiums and co-ops who do not currently receive regular city trash collection, recycling and bulk item collection services.  The proposed legislation, sponsored by City Councilmen Jim Kenney and Frank DiCicco, has been gaining support lately as a result of the previous efforts of the City Council and despite the opposition of Mayor John Street, who has refused to comply with a previous Court ruling that required the City to provide no-cost refuse collection services to community associations.

Bill 070073 attempts to remedy the inequities suffered by members of community associations who typically pay the same local taxes as non-association homeowners even though community association members are often denied typical municipal services such as trash  collection and recycling.  This Bill seeks to eliminate the double taxation problem by reimbursing tax payers in community associations for trash hauling expenses, which are normally privately funded by assessments paid by unit owners to their respective association.  The legislation is expected to move forward for a vote before the city counsel in the coming months.  The full text of this proposed legislation can be found here.

We will continue to monitor this proposed legislation and provide timely updates as to its progress.  If you would like to discuss this legislation or how it affects cooperatives in more detail, please contact David J. Byrne or Jonathan H. Katz.

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Committee for a Better Twin Rivers v. Twin Rivers Homeowners’ Association

On Thursday, July 26, 2007, the New Jersey Supreme Court issued its much awaited and highly anticipated decision in Committee for a Better Twin Rivers v. Twin Rivers Homeowners’ Association.  In overturning the Appellate Division’s decision and reinstating the decision of the Trial Court, the Supreme Court found that community associations could lawfully impose reasonable restrictions on its members – such as restricting the posting of political signs or allowing access to a community newsletter – and that such restrictions do not violate the New Jersey Constitution’s protections regarding freedom of expression and equal protection.

At issue in Twin Rivers was the question of whether the New Jersey Constitution’s speech and assembly clauses should be applied to limit the authority of homeowners’ associations to promulgate certain community-wide restrictions and, if so, under what circumstances.  In the lower court’s decision, Committee for a Better Twin Rivers v. Twin Rivers Homeowners’ Association, 383 N.J. Super. 22 (App. Div. 2006), the Appellate Division found that because community associations have supplanted certain responsibilities once undertaken by towns and municipalities, the individual members’ state constitutional rights to free speech outweigh the restrictions imposed by homeowners associations, even though such property is private rather than public. 

In the Supreme Court’s decision, authored by Justice John E. Wallace, Jr., the Court determined that even in light of New Jersey’s broad interpretation of its constitutional free speech provisions, the “nature, purposes, and primary use of Twin Rivers property is for private purposes and does not favor a finding that the Association’s rules and regulations violated plaintiffs’ constitutional rights.”  Moreover, the Court found that “plaintiffs’ expressional activities are not unreasonably restricted” by the Association’s rules and regulations.  Finally, the Court held that “the minor restrictions on plaintiffs’ expressional activities are not unreasonable or oppressive, and the Association is not acting as a municipality.”

You can read the Supreme Court’s decision in Twin Rivers here.

If you would like to discuss the Twin Rivers opinion and how it affects condominium associations in more detail, please contact David J. Byrne or Jonathan H. Katz.

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Legislation that would require co-ops to provide rejected applicants with a written explanation as to why they were rejected is making its way – slowly – through the New York City Counsel.  Historically, cooperative boards in New York City have not been required to provide any reason or explanation to applicants as to why their applications for co-ops are rejected.  However, if this proposal is enacted, the application and rejection process may become much more transparent.
    

Unlike a condominium or homeowners associations where units are owned in fee simple, in a cooperative, legal title to the property is vested in a cooperative entity and individuals purchase shares of stock in the corporation, which carry the right to occupy a unit within the cooperative pursuant to a proprietary lease.  In New York, it has long been the law that, absent discrimination or bad faith, a board can reject an applicant for any reason or no reason at all.  See Weisner v. 791 Park Avenue Corp., 6 N.Y.2d 426 (1959).  Similarly, in New Jersey, the Cooperative Recording Act, N.J.S.A. 46:8D-6(l), acknowledges and authorizes a similar approval process so long as the consent to transfer is not unreasonably withheld or would constitute discrimination under federal or state law.

The proposed legislation, which was introduced by City Councilman Hiram Monserrate (D - Queens) in February of 2006, but which has languished in committee for over a year, has been gaining support and momentum lately.  Known as Intro 119 – “The Fair and Prompt Co-op Disclosure Law”, or more commonly referred to as the “Written Rejection Bill”, would require that co-op boards provide rejected applicants with a written explanation – signed by an officer of the co-op – detailing each individual reason as to why such applicant was rejected.  The statement must also include the number of applications received and the number of applications rejected in the previous three years prior to this decision.  If a co-op board fails to provide such a written explanation, it can be held liable to the applicant for fines, punitive damages and attorneys’ fees.  The full text of this proposed legislation can be found here.

While opponents of the legislation argue that it is unfair, intrusive and too far-reaching, its supporters argue that it will force co-op boards to openly cite legitimate reasons for any rejection and will help root out discrimination, ultimately shining a brighter light onto the inner workings of New York City’s most powerful co-op boards, which were only required to begin disclosing sale prices in 2006.  The legislation is expected to move forward for a vote before the counsel in the coming months.

We will continue to monitor this proposed legislation and provide timely updates as to its progress.  If you would like to discuss this legislation or how it affects cooperatives in more detail, please contact David J. Byrne or Jonathan H. Katz.

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