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

The New Jersey Court of Appeals has ruled in a case of first impression that a condominium association, when it is primarily residential, cannot be sued for injuries occurring on abutting public sidewalks.  The Appeals Court stated:

    “The principal, novel issue presented...is whether for sidewalk liability purposes, a condominium association has a duty to maintain an abutting public sidewalk as if it were a commercial landowner.  We hold that a condominium association does not bear such duty or responsibility.”
 

The published opinion can be found at Luchejko v. City of Hoboken, A-5702-07. 
 
In this case, the plaintiff, Richard Luchejko, slipped and fell in February 2006 on the public sidewalk outside of the Skyline Condominium Association located in Hoboken, New Jersey.  The plaintiff alleged that black ice covered most of the sidewalk and there was significant snow piled along the sidewalk following heavy snowfalls in the area.  Luchejko contended that the Skyline Condominium was a commercial entity for the purposes of sidewalk liability.  The Appeals Court disagreed.  The Court’s ruling significantly adds to the body of case law relating to poorly maintained adjacent sidewalks. 
 

The Skyline Condominium is a residential and owner-occupied condominium and run as a non-profit corporation under the New Jersey Condominium Act.  The Court noted that the Skyline Condominium was primarily residential, that it only had the option to increase common fees, and that the majority of the owners’ fees went toward upkeep.  Therefore, the Court determined that the condominium was unable to generate an overall income and spread the risk of loss by higher charges on goods and services and therefore should not be considered commercial property.  Appellate Division Judge Ariel Rodriguez wrote, “It is not the use to which the property is put that is determinative, but rather the nature of the ownership,...” adding that the Court must weigh the “ability to pass along the cost of liability.”  While balancing the relevant factors, the Court found that the “key issue” in determining whether a property is commercial is its “capacity to generate income.”  The Skyline Condominium’s attorney stated that the condominium was a “classic residential condominium association,” had no first floor shops, did not charge for parking and had “no commercial aspects at all.”  In light of the foregoing and counsel’s arguments, the Court found that the Skyline Condominium must be considered residential.
 

This ruling by the Appellate Division marks a contrast to the Supreme Court’s rulings dating back to the early 80's in which New Jersey courts have extended sidewalk liability to owners of apartment buildings, parochial school, fraternities, smaller multiple-family buildings that were not owner-occupied and other types of commercial and investment properties.  New Jersey courts have long held that for hybrid properties that mix residential and non-residential use, the test is whether they are predominantly owner-occupied.  It is unknown how the Court would rule if there was a restaurant or shop on the first floor of the condominium.  Plaintiff’s lawyer stated that she would seek an appeal of the ruling.

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Many condominium associations do not realize or do not take advantage of their ability to collect interest on unpaid condominium common assessments. The New Jersey Condominium Act (N.J.S.A. 46:8B-21)(the “Condo Act”) permits associations to charge interest on delinquent balances and defers to an association’s governing documents. Many modern association bylaws will include provisions similar to the following:

    “the association at its option shall have the right in connection with the collection of any common expense assessment, or other charge, to impose a late charge of any reasonable amount and/or interest at the legal maximum rate permitted by law for the payment of delinquent real estate taxes."
 

N.J.S.A. 54:4-67 states that delinquency in real estate taxes can accrue interest at up to 8% per annum for the first $1,500 that is delinquent and 18% per annum for any amount in excess of $1,500.  Therefore, if an association has language in its bylaws similar to that set forth above, it may assess interest plus late fees (or as an alternative to late fees) at the maximum rates provide for in N.J.S.A. 54:4-67.

The charging of interest for unpaid assessments has been shown to be a good incentive tool to be used by associations to motivate regularly delinquent owners to bring their accounts current.  It is recommended that the association’s board of trustees passed a resolution regarding the levying of interest if the board wishes to impose interest fees for unpaid assessments.  The resolution should set forth the amount of the interest to be charged and the time period in which the interest will be calculated and applied to the debtor’s account.

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Realizing that the "fixes" put in place by the federal Home Affordable Modification Program ("HAMP") have been an abysmal failure, the Obama Administration and the Treasury Department have reached for a new arrow in their quiver. Beginning April 5, 2010 the new Home Affordable Foreclosure Alternative program ("HAFA") will attempt to assist hundreds of thousands of the delinquent homeowners who could not be rescued under the HAMP program by allowing them to shed their homes through the short sale process. 

 

Traditionally, a short sale is when the proceeds from the sale of a home are insufficient to fully pay off all outstanding debts and encumbrances recorded against the property.  In these situations, the selling homeowners can either bring funds to the closing to make up the difference, or obtain approval from their mortgage lenders to accept a reduced amount to satisfy their outstanding loans.  

 

Under HAFA, the lender must offer a short sale in writing to the homeowner within 30 days after the homeowner either is found ineligible for mortgage modification under HAMP or has been ruled unable to sustain payments under a trial plan. Under the new plan, a lender will use real estate agents to determine the value of the encumbered home and this figure will be the  lender’s minimum to accept for a short sale. This figure will not be shared with the homeowner, but if an offer comes in that is equal to or greater than this amount, the lender must accept it and proceed with the short sale. 

 

Under this new program the primary lender will receive $1000 if the short sale is completed. A lender holding a secondary lien could get up to $3000 of the short sale proceeds, or can attempt a short sale outside the program if it does not agree to share.  In addition, the selling homeowner will get $1500 in "relocation assistance".  

 

While HAFA will attempt to make short sales easier and a more likely alternative to foreclosure,  short sales require significant time and patience by all parties involved. Luckily, with the seemingly continuous delay of the foreclosure process by the New Jersey courts, one thing that delinquent homeowners seem to have is time. 

 

At the beginning of foreclosure crisis lenders shunned short sales and would regularly refuse to participate in the process. However with the failure of other federal programs to effectively turn the tide of the foreclosure flood, it may now be time for short sales to see their moment in the sun. For condominium and homeowner associations ("Associations"), HAFA may mean fewer empty foreclosed homes waiting to be sold by uninterested and unmotivated lenders.  Another direct benefit of the HAFA program for Associations is that the common assessment liens recorded against the homeowners’ units must be paid in full for the short sale to be completed. This will provide Associations significant leverage to ensure that unpaid common assessments are recovered. 

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On June 19, 2009, the Hudson County Law Division upheld a Northern Jersey condominium association’s right to enforce its rules and regulations regarding the parking, registering, and towing of automobiles located within the association’s common elements.  The association had ratified a set of rules & regulations which had originally been drafted by its developer/sponsor. These rules were a supplement to the association’s master deed and bylaws, but were not contained within those documents.

 

In the present case, a unit owner (the “Owner”) had failed to properly maintain his vehicle and was in violation of association rules which required all automobiles to be moved at least once every 48 hours to prove that they were operational.  This car had a flat tire and had not been moved in over two (2) weeks.  The Association placed a notice of violation sticker on the car and two days later, had the vehicle towed.  The Owner failed to redeem the car from the towing company over several months and the vehicle was subsequently junked.  The Owner then filed a lawsuit against the association’s management company and the association seeking recovery of the value of the towed/junked car.  The Association countersued to enforce its governing documents and the specific rules & regulations violated by the Owner.

 

After a trial and the hearing of witnesses presented by both sides, the Court ruled that the association had the right to enforce its rules & regulations.  The Court recognized that the association’s board of trustees had the authority to draft and adopt reasonable rules and regulations which governed and limited a unit owner’s use of the common elements and areas.

 

Additionally, the Court found that the Owner’s attempt to sue the management company was essentially an attempt to circumvent the rules & regulations and governing documents, and therefore the Association was entitled to a recovery of its attorney’s fees and legal costs.  At the end of the day, the Association was vindicated and the Owner was held responsible to pay the association’s legal fees and costs incurred to both defend itself and its management company, and enforce its rules & regulations. 

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On May 20, 2009, Congress passed a credit card holders' "Bill of Rights" that will enact sweeping new restrictions on the credit card industry and provide numerous protections for consumers. Treasury Secretary Timothy Geithner said that the bill would "create a more fair, transparent and simple consumer credit market." This bill comes as no small relief to consumers and home owners battered by the current economic crisis.  When a condominium unit owner is faced with the decision of paying his maintenance fees or dealing with credit card balances that have rocketed skyward due to penalties and late charges, this bill provides a respite in the storm. President Barack Obama is expected to sign the bill into law within days. The bill was designed to combat abuses that Sen. Richard Shelby of Alabama, the top Republican on the Senate Banking Committee, identified as, "Card issuers raise rates for unclear reasons, use billing methods that consumers do not understand, and assign fees and charges without warning.”
 
According to Consumers Union, publisher of Consumer Reports, what follows is a list of some of the key provisions of the bill:

Enhanced disclosure requirements
 

• Periodic statements must clearly state the required due date and late payment penalty.
• Credit Card issuers must disclose the period of time and total interest it will take to pay off a card balance if only minimum monthly payments are made.
• Credit Card issuers must provide 45-day written notice before raising APR or before making any other significant change to the card agreement.

First twelve months of new card
Credit Card issuers are restricted from raising interest rates in the first twelve months after a credit card account is opened, except:

 

• When the increase is under a variable interest rate agreement.
• At the end of the promised time period for a promotional rate. For example, the Credit Card issuer can offer 5 percent for eight months and then 12 percent after that. (The promotional period must be at least six months.)
• If the required minimum payment is not received within 60 days after the due date.

Existing balances
Credit Card issuers cannot raise interest rates on existing balances unless:
 

• The increase is under a variable interest rate.
• It is the end of a promised time period for a promotional rate.
• The required minimum payment is not received within 60 days after the due date.

 

Notice of future rate hikes
After the first twelve months, the Credit Card issuer can only raise the rate on future purchases upon providing 45 days notice of the increase. No notice is required for increases due to one of the reasons stated above.
 

Paying off under old terms
Credit Card issuers can’t change the terms for repaying a balance, except that the Credit Card issuer may give the cardholder either five (5) years to pay off the outstanding balance at the old rate; or an increased minimum payment that has no more than twice as much of a contribution to paying down the balance as the old minimum payment.
 

Limits on fees and penalties
 

• If the interest rate is increased because the minimum payment is not received within 60 days after the due date, the rate must go back to the original lower rate if the consumer makes on-time minimum payments for six months.
• An over-the-limit fee may be imposed only once per billing cycle if the balance is above the limit on the last day of the cycle.
• Credit Card issuers who increases the interest rate must review the account every six months and decrease the rate if indicated by the review.
• Two-cycle billing is prohibited. Credit Card issuers cannot reach back to an earlier billing cycle when calculating the amount of interest charged in the current cycle.

These new restrictions and protections are expected to dramatically change the way Credit Card issuers treat consumers. These changes should create an environment wherein consumers can better understand and interact with Credit Card issuers.

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In this digital world that we live in, a common question that arises from our clients relates to what ability a condominium association has to restrict and control the placement of satellite dishes. Issues regarding the placing of satellite dishes tend to arise in associations that are either located in heavily populated urban areas where a direct line of sight to a satellite is not available or in a heavily wooded area where surrounding trees block reception. The placement of over-the-air reception devices, which include satellite dishes, is regulated by the Federal Communications Commission (the "FCC"). The specific rule covering these antenna was put into effect in October 1996 and is titled 47 C.F.R. Section 1.4000 (the "Rule"). The Rule applies to video antennas, including direct-to-home satellite dishes that are less than one meter (39.37 inches) in diameter, t.v. antennas, and wireless cable antennas.


The Rule prohibits most restrictions that unreasonably delay or prevent the installation, maintenance or use of an antenna; unreasonably increase the cost of the installation, maintenance or use of the antenna; and/or would preclude the reception of an acceptable quality signal. However, of specific note is the fact that the Rule does not apply to the common elements of a condominium association. The FCC does not restrict the association from prohibiting the placement of satellite dishes on the roofs or on the siding of the association’s building(s) or those areas deemed to be common areas/elements under the association’s governing documents. The association is not obligated to allow access to either the roof, the siding, or the common elements to allow unit owners to place satellite dishes or other antennas.


However, if a unit owner has exclusive use of property within the association, such as a balcony, patio or backyard, then the satellite dish may be placed there. "Exclusive use" means an area of the property that only the unit owner may enter and use to the exclusion of other residents. Even if the satellite dish is placed on an area of exclusive use, the association may restrict the drilling through of exterior walls which are common elements or where the drilling would affect the fire safety or structural integrity of the building. The installer/retailer must find an alternative way of providing wiring into the unit to transmit the signal. Furthermore, the association may prohibit the installation of satellite dishes which would extend beyond the balcony or patio of a unit. Therefore, if the satellite dish is placed on the railing of a balcony which is the exclusive use of a condominium unit, but the dish extends past the railing, the association may prohibit its placement on the railing. Even if a satellite dish is placed in an area of exclusive use, the association can create restrictions designed to protect the safety of the association, such as restricting areas that are close to powerlines or fire escapes. However, all such safety restrictions must be placed in writing, explaining the reason for the safety restriction.


If the Association decides to allow a unit owner to place a satellite dish on a common element, including a lawn area, roof, chimney or exterior wall, the association can establish procedures which include: a). the charging of a deposit to protect against any damage to the common element; an application form to be completed and reviewed prior to the installation; b). a requirement that the unit owner indemnify the association from any harm or damage caused by the installation of the satellite dish; and, c). a requirement that the unit owner remove the satellite dish at the time of sale and return the common element to its original condition. In addition, the association may require that the satellite dish be painted a particular color to match the surrounding area and not become an eyesore to the association.


If you have questions regarding the rules promulgated by the FCC regarding antennas and satellite dishes, you may contact our office regarding same.

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How often have you seen the FBI warning screen preceding a movie and wondered, does this warning apply to me?  A common issue raised by community associations is whether the association can show a motion picture or DVD at a site within the association, possibly the pool, clubhouse, or community room.  The Federal Copyright Act, Title 17, U.S.C. Section 101(1) and Section 106 make it unlawful to show a film in public without the explicit permission of the film’s copyright owner.  Renting or purchasing a cassette or DVD from the local video store or library gives the customer the right to view the film, but not to show it in public.  The Copyright Act defines “public” in this context as “any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.”  According to Senate Report # 94-473, Page 60; House Report number 94-1476, Page 64, public performances of movies are illegal unless they have been authorized by license.  Even “performances in ‘semi-public’ places such as clubs, lodges, factories, summer camps and schools are ‘public performances’ and subject to copyright control.”  Furthermore, both for-profit corporations and non-profit organizations must secure a license to show videos, regardless of whether an admission fee is charged. 

Non-compliance with the Copyright Act is considered infringement and can carry steep penalties. Unlicensed exhibitions are federal crimes and can subject the association to a penalty ranging from $750.00 to over $100,000.00  per exhibition for knowingly violating the Copyright Act.  Even inadvertent violators of the Copyright Act are subject to substantial civil penalties ranging from $750.00 to $30,000.00 for each illegal showing, plus other possible penalties under the Copyright Act. 

Therefore, if the association wishes to organize a weekly movie viewing, movie marathon, or some other event where a copyrighted motion picture will be shown, the association should first obtain a license.  Fortunately, the obtaining of a license is a relatively simple procedure.  The association may contact the Motion Picture Licensing Corporation (“MPLC”) and request the purchase of an annual license.  The fee to obtain a license from the MPLC is based upon the type of organization, the number of units within the association, and the number of locations at which the film will be shown.  For example, for an association with 200 homes and one clubhouse, the number of units would be 200 and the location for exhibiting the movie would be 1.  The cost for an association to obtain a license varies according to the formula stated above, but appears to average$2.10 per unit, so that an association with 200 units would be charged an annual licensing fee of $420.00 and an association with 428 units, $899.00.


Securing a license from the MPLC would allow an association to exhibit movies an unlimited number of times.  Once a license has been obtained, the association could show any of the movies covered by the umbrella license granted by the MPLC.  The umbrella license covers the majority of the major motion picture producers and distributors including Walt Disney Pictures, Warner Bros., United Artist Pictures, Touchstone Pictures, Orion Pictures, Sony Pictures Classics, Fox 2000 Films, plus a large number of other corporations.  Furthermore, once a license has been obtained, the association and guests of its members would be allowed to use the association’s facilities and equipment to show movies.  While a license would not allow the association, or one of its committees or organizations, to charge an admission to view the movie, the association would be allowed to take volunteer donations to offset the cost of purchasing the license.  In addition, the association could charge to sell beverages or food at the time of the movie showing.  An additional benefit of the license granted by the MPLC is that if the association had previously infringed upon the Copyright Act or rights of any of the companies covered under the umbrella license, the MPLC agrees that upon obtaining a license, it will not seek legal recourse or assert any claim for any of the prior possible infringements.

It is imperative that an association’s Board of Directors and legal counsel be aware of these issues so that inadvertent violations of the Copyright Act may be avoided.

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Condominiums within Pennsylvania and New Jersey are creatures of both real estate law and state statutes.  A condominium’s enforcement authority is rooted in restrictions that both run with the land and are recorded as restrictive covenants with the deed clerk of the county where the condominium is located.  The major respective statutes are the Pennsylvania Uniform Condominium Act and the New Jersey Condominium Act. 


Both state statutes provide that a condominium association is entitled to recover its reasonable attorney’s fees along with the costs of suit incurred as a result of the condominium having to litigate matters relating to the collection of common expense assessments [N.J.S.A. 46:8B-21 and 68 Pa. C.S. 3315(f)]. Simultaneously, the majority of condominium declarations/master deeds and bylaws allow for the recovery of reasonable attorneys’ fees and legal costs in collection actions.
   

In New Jersey, the Rules of Professional Conduct at 1.5(a) and New Jersey Court Rules 4:42-9 govern applications for attorney’s fees.  Whereas these rules set forth eight (8) factors to be considered by the reviewing court, experience has shown that the determination of the  “reasonableness” of the attorney’s fees boils down to the subjective opinion of the particular judge ruling on the fee application.  Courts of both states will consider such issues as whether opposition was filed by the debtor defendant, whether court appearances were required, whether discovery was exchanged and whether any additional motions or court pleadings had to be filed outside of the ordinary. 


In Pennsylvania, this subjective standard was illustrated in the case of Mountain View Condominium Association v. Bomersbach, 734 A.2d 468 (Pa.Cmwlth. 1999).  In Mountain View, the Commonwealth Court of Pennsylvania ruled that the lower court did not err in its  calculation and award of attorney’s fees which the condominium was entitled to recover from a unit owner. What makes Mountain View so noteworthy is that the Court allowed a fee award of $46,548.64 on what was initially only a debt of $1,200.00 when the condominium initiated the law suit.


Whereas the fee rates which condominiums agree to pay their attorneys may be the same or similar to their competitors’ within the industry, the court’s awarding of these fees through the foreclosure process is dependant upon the court’s subjective opinion.  Some courts rightfully award a condominium all legal fees and costs incurred in a foreclosure action, penny for penny, whereas in some situations some specific judges dramatically reduce the amount of the attorney fee award.


 When a judge issues an order awarding attorneys fees and legal costs less than the amount which the condominium incurred, the condominium may file a motion seeking the court to reconsider its position on the award, or the condominium can appeal the court’s decision to the proper appellate court.  However, both of these options will cause the condominium to incur additional legal fees which may not be recoverable from the debtor.  The decision as to whether the condominium should file a motion for reconsideration or appeal the court’s decision after the entry of final judgment should be made on a  case by case decision based upon the total amount which the court has reduced the fees awarded, and the time-frame in which the condominium finds itself in regards to moving forward with the foreclosure action.


As stated by the trial court in Mountain View, “[t]he Association had the option of either backing off or enforcing its rights under the Declaration and the decisional law.  The fact that it elected not to compromise, to stand on principal and to uphold the law requires that its attorney’s fees be covered.  Any holding to the contrary would cause chaos in Condominium Associations whose compliant members would have to bear the cost of dealing with non-compliant members.” In the end, there is no sure-fire way to predict the amount of attorney’s fees which will be awarded by a court.  However, this should never deter an condominium from enforcing its declaration/master deed and bylaws to collect unpaid assessments, the “life-blood” of the condominium.

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In 1981, Terrence P. Crawford drafted his well-regarded “10 Commandments”.  Over the past 25 years, Terry’s Commandments have withstood the test of time.  The following list has been created as a supplement to the original 10:

    1.      Thou shalt strive to maintain the highest standard of ethical conduct in the performance of the Association's affairs and operation, and to ensure that the Association members maintain confidence in and respect for the entire Board.

    2.     Thou shalt act in the best interests of the Association as a whole.  

    3.    Thou shalt comply with the Association’s governing documents and relevant law.  You should be familiar with the Association’s master deed, bylaws, and other governing documents and should always attempt to make reasonable decisions that are consistent with these documents.

    4.    Thou shalt act within the framework of the Association and not take action contrary to the Board’s decisions or act unilaterally.  

    5.    Thou shalt not use your position for private gain, for example:

        You should not accept or solicit, in any way, any gift, favor, gratuity, loan, or any other thing of monetary value from a person who is seeking a contractual or other business or financial relationship with the Association. You should never use your position for financial or personal gain. You should never seek preferential treatment from the Board or any of its committees.  You should never accept a gift or favor made with the intent of influencing your decision or action on any official matter.  You should never willingly misrepresent facts to advance a personal cause or influence the membership to advance a personal cause.

    6.    Thou shalt act professionally at meetings. You should strive to conduct yourself in a professional and businesslike manner at all meetings. You should never make personal attacks against other Board Members, Association members, residents, officers, management, or guests.  Your language at meetings should be kept professional. You should always express any differences of opinion in a courteous and respectful manner.

    7.     Thou shalt maintain confidentiality.  You should strive to maintain the confidentiality of all legal, personnel, contractual and management matters involving the Association. You should also strive to maintain confidentiality of the personal lives of other Board Members, Association members, residents and management staff.

        8.     Thou shalt disclose conflicts of interests.  You should immediately disclose to the Board any perceived or potential conflict of interest regarding any aspect of the business operations of the Association.

        9.    Thou shalt  refrain from defaming or harassing anyone in the community. You should never  engage in defamation (libel and slander), by any means, of any other Board Member, Association member, resident, or management staff member.  Furthermore, you should refrain from harassing Association members or residents. In your position as a Board Member, you should never threaten, harass, or otherwise attempt to intimidate, in any way, any other person.

    10.     Thou shalt attend meetings on a regular basis.    

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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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