New Jersey Supreme Court Answers Burning Question: When is a converted garage a “building” under New Jersey’s Anti-Eviction Act?

When my wife and I lived in Hoboken, one of our favorite restaurants was Court Street. It is located on the corner of Sixth Avenue and Court Street. We went there at least once a week for most of the time we lived in Hoboken. (Great food, good atmosphere, a little off the beaten path. You should check it out.) Little did I know at the time that we were looking out from the restaurant onto a "building" that was the subject of a long-running landlord-tenant dispute that was only recently resolved by the New Jersey Supreme Court.

I used quotation marks around "building" because the issue in Cashin v. Bello was whether the word "building" as used in the Anti-Eviction Act denotes a single, unattached physical structure or whether it includes all structures owned by an individual that are located on the same parcel of land. This issue was more than just semantics to the parties involved because if the Supreme Court endorsed the former then defendant could be evicted, but if it endorsed the latter, then defendant could stay. Unfortunately for the tenant, the Supreme Court endorsed the former.

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Condo Association Not Immune From Liability For Slip-And-Fall On Its Private Sidewalk

The latest chapter in the "can I be sued if someone slips and falls on the sidewalk in front of my house after it snows" saga has been written. In Qian v. Toll Brothers Inc., the New Jersey Supreme Court held that a condominium association was responsible for clearing snow and ice from the private sidewalks that it controlled, and therefore could be liable for injuries caused by its failure to do so.

The general law on this issue is well-settled. Historically, no property owners had a duty to maintain the sidewalks on property that abutted public streets, but this changed in the early 1980’s, when the New Jersey Supreme Court imposed such a duty on commercial property owners, but not residential property owners. Therefore, commercial property owners are required to remove snow and/or ice from the sidewalks abutting their property, but residential property owners are not.

In practice, however, the law has proven easier to state than apply. What about situations involving property that is both residential and commercial (click here for more on that)? Or, situations where the injured party is a tenant who is injured on the landlord's property (click here for more on that)? Or, situations where the property is in foreclosure (click here for more on that)? Or, the issue in Qian, situations where the property is a condominium or common-interest community?

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Appellate Division to Foreclosing Lenders: “Do Less” Because If You Do More You Might Make Yourself Liable For Damages

by: Peter J. Gallagher (@pjsgallagher)

There is a scene in the movie "Forgetting Sarah Marshall" where the main character goes to a surf instructor to teach him how to surf. The lesson is not that helpful because, among other things, the instructor gives the main character advice that is impossible to follow, like: "Don't do anything. Don't try to surf. Don't do it. The less you do the more you do." And, then later: "try less" and "do less."

I was reminded of this decision when I read the Appellate Division's recent opinion in McRoy v. Eskander. In that case, the Appellate Division held that a lender was not a mortgagee in possession and therefore could not be liable for injuries sustained by someone who slipped and fell on the sidewalk in front of the property. The reason the lender could not be deemed a mortgagee in possession was because it had done almost nothing to maintain the property in the 18 months after it obtained a final judgment of foreclosure.

In McRoy, plaintiff slipped and fell on snow and ice in front of a four-unit apartment building that was owned by Defendant Eskander. At the time of plaintiff's fall, however, the building had been vacant for approximately 18 months. Eskander had defaulted on his loan with Bank of America ("BofA"), which led BofA to foreclose on its mortgage on the property. BofA obtained final judgment of foreclosure but had not proceeded to a sheriff's sale at the time of plaintiff's fall. Once final judgment of foreclosure was entered, Eskander stopped maintaining the property. Except for performing yard work once, BofA did not maintain the property either. It did periodically inspect the property to ensure it was vacant and, to protect its collateral, it paid the real estate taxes and a water bill.

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New Jersey Courts Continue To Refine Rules Regarding Restricting Political Speech

by: C. John DeSimone, III

When can a homeonwers association restrict the political speech of its unit owners? This is a question that has continued to baffle New Jersey courts ever since the Supreme Court's landmark Committee for a Better Twin Rivers v. Twin Rivers Homeowners' Ass'n decision in 2007. In Dublirer v. 2000 Linwood Avenue Owners, Inc. et al, decided August 17, 2011, the Appellate Division took another crack at it, when it evaluated a co-op's restrictions on solicitation, which as applied prevented plaintiff from distributing written materials to other shareholders in the 483 unit building.

The Dublirer court first reaffirmed Twin Rivers to the extent no state action is required for a cause of action under the New Jersey State Constitution. The court then applied the three Schmid factors: "(1) the nature, purposes, and primary use of such private property, generally its 'normal' use, (2) the extent and nature of the public's invitation to use that property, and (3) the purpose of the expressional activity undertaken upon such property in relation to both the private and public use of the property." Under the first factor, like in Twin Rivers, the Dublirer court had no trouble concluding that the co-op was primarily residential and private. Similarly, under the second factor, the Dublirer court also found the public was not invited to use the property.

Because the effect of the solicitation restriction was to inhibit political speech, and specifically speech critical of the co-op's board or speech designed to permit the plaintiff to run against an incumbent board member, the court considered it "political-like speech" and thus concluded it must examine "the fairness of the restrictions imposed by the Association." The Appellate Division first noted that the Association violated its own restrictions several times per year, insofar as the Association distributed written materials under shareholders' doors to save postage. The court also noted that the Association permitted certain charitable organizations to also violate the solicitation restrictions.

The court considered the time, place, and manner of the restrictions. It examined available alternative means of communication and found them lacking; the Association rules prohibited written materials on one's own door or window, distribution of written material anywhere on the premises, contributions to the board's newsletters, and delivery of political-like speech related to board elections by going door-to-door. The plaintiff was left with only the ability to circulate his writings at a semi-annual meeting, posting them on a bulletin board, or using the mail. With respect to speaking, the only apparent permissible outlets were inside a unit after an unsolicited invitation, a common area during an unsolicited conversation, or at the annual meeting. Viewing these restrictions in light of the Board's "exceptions" noted above, the Appellate Division concluded they were too restrictive, reversed summary judgment which had been granted to the Association, and entered judgment in favor of the plaintiff.

Moratorium Extended On COAH Non-Residential Development Fees

by: Lawrence A. Calli

On August 24, 2011, Lt. Governor Guadagno signed legislation extending relief to developers from the previously implemented COAH 2.5% non-residential development fee requirement. The relief places an additional 2-year moratorium on the non-residential development fee requirement, and will apply retroactively to approvals obtained as of July 2010. Developers who obtain land development approvals prior to July 1, 2013 (and obtain building permits by December 31, 2015) will receive protection under the fee moratorium. A mechanism is also in place by which developers who previously paid a development fee may be entitled to a refund. Click here for additional information.