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

Shovel (PD)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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Fishing Hole Fight Fails To State Claim For Harassment And Discrimination

FishingA morning out fishing on the lake ended up in a lawsuit between two residents of a gated community. In Chrzanowski v. Harriz, plaintiff and defendant were both members of the Smoke Rise Club, which the court described as "essentially a homeowners association" for residents of a gated community known as Smoke Rise. One of the privileges of membership in the Smoke Rise Club is access to a lake and an adjacent beach and dock. One morning, plaintiff and his nine-year-old son were attempting to fish from the dock at the same time as Harriz when "a dispute occurred between [them] over fishing locations." Harriz told plaintiff that he did not want plaintiff fishing near him, "directed coarse and offensive language" at plaintiff and his son, and told plaintiff that plaintiff did not belong in the Smoke Rise Club.  Then, after Harris overhead plaintiff talking to his son in Polish, Harriz allegedly called plaintiff "an ignorant foreigner who could not speak English." As the dispute escalated, Plaintiff saw Harriz get on his phone and heard Harriz request that plaintiff be removed from the facilities. Feeling threatened, plaintiff called Smoke Rise security and the police. When the police arrived, they spoke to both parties and sent them both on their ways without filing any charges.

Plaintiff later sued Harriz and Smoke Rise, alleging (1) that both defendants discriminated against him by depriving him of his right to use a place of public accommodation and (2) that Harriz harassed him. Both defendants moved for summary judgment and the trial court granted both motions. The Appellate Division did not indicate the basis for the trial court's decision on the harassment claim, but it noted that the trial court dismissed the discrimination claim because the Smoke Rise Club and its amenities were private, and thus not places of public accommodation. Plaintiff appealed and the Appellate Division affirmed, albeit for slightly different reasons.

 

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When Do Condominium Associations Have Standing To Sue Under The Consumer Fraud Act?

by:  Peter J. Gallagher

In a recent decision, the Appellate Division restated and clarified the rules regarding when a condominium association has standing to sue a developer.  In Belmont Condominium Association v. Geibel, an association sued the sponsor/developer/contractor of the Belmont, a seven-story, thirty-four unit condominium in Hoboken, asserting common law fraud and negligence claims along with statutory claims under both the New Jersey Consumer Fraud Act (“CFA”) and The Planned Real Estate Development Full Disclosure Act (“PREDFDA”).  The claims arose out of the allegedly faulty construction of the Belmont, and certain pre-construction statements from the developer, including that it had “overseen the building and renovation of Over 400 Single Family & Condominium Homes.”  (Although largely irrelevant to the issues addressed by the Appellate Division, it turned out that the Belmont was actually the first building that the developer’s owner and general manager had ever constructed.)  As it relates to the faulty construction, the association alleged that the building was “plagued by water leaks” almost immediately after construction was complete.  These leaks impacted both the individual units and the common elements.  After years of repairs that did not correct the problem, the association sued the developer.  The association argued that construction defects were the cause of the water filtration, while the developer blamed the problems on poor and inadequate maintenance.        

Among other things, the developer in Belmont argued that the association lacked standing to bring claims under the CFA.  At the outset, the Appellate Division observed that New Jersey courts take a liberal approach to standing, and  have historically given wide recognition to suits by condominium associations.  It then analyzed the language of the New Jersey Condominium Act (“NJCA”) to determine whether the association had standing.  As it related to claims arising out of damage to the common elements, the Appellate Division held that the association had standing to sue because the NJCA vests condominium associations with the “exclusive right”(emphasis in original) to sue a developer for defects pertaining to the common elements, and generally prohibits individual unit owners from doing so. 

The Appellate Division rejected the developer’s argument that the association lacked standing because it could not demonstrate reliance by the original purchasers on any of the alleged misstatements.  On this point, the Appellate Division noted that reliance is not an element required to sustain a claim under the CFA.  The Appellate Division also rejected the developer’s argument that the association could only recover damages for the unit owners who actually sustained damage as a result of the developer’s alleged misrepresentations.  The Appellate Division held that because the NJCA allows associations to sue for damages to the common areas sustained by “any or all” of the unit owners, it was entitled to recover all of the damages necessary to repair any damages, not a prorated amount based on the number of unit owners who identified damages. 

However, the Appellate Division held that the association lacked standing to sue for damages to the individual units because the NJCA only vests it with authority to sue or be sued in connection with damages to common elements.  In Belmont, the damages associated with individual units all related to the windows, which the Appellate Division held were “personal to the unit owners,” and therefore not part of the Belmont’s common elements.  On this point, the Appellate Division reviewed the definition of common elements contained in both the NJCA and the master deed for the Belmont, neither of which identified windows as common elements.  Once the Appellate Division concluded that the windows were unit elements, not common elements, its decision on standing was a simple one because it had already concluded that an association has standing to sue for damage to common elements, but lacks standing to sue for unit elements.   

Who Says Babies Don’t Play Bocce? Law Division Rules On Age Restricted Housing Conversion

by: Gregory S. Ricciardi

With the continuing strain on residential development projects, some developers may seek relief in the form of a recent New Jersey law, which allows for the conversion of age-restricted projects to non age-restricted projects.  A recent opinion from the Law Division may serve as a helpful tool to developers seeking to take advantage of the law.

Heritage at Towne Lake, LLC v. Planning Board of Sayreville interprets and applies N.J.S.A. 45:45:22A-46.3 (the “Conversion Statute”), which regulates the conversion of age restricted units to non-age restricted units in development projects.  In this case, the Sayreville Planning Board (the “Board”) denied a developer’s application to convert a one hundred eighty-four (184) unit, age restricted community to a non-age restricted community, containing the same number of units, but configured differently. 

Pursuant to the Conversion Statute, the approving board has broad discretion to require the applicant to prove that the conversion can be granted  without substantial determinant  to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance.  The Conversion Statute establishes a set of criteria that applicants must prove, which include: (1) that the site meets RSIS standards; (2) recreation improvements and other amenities are revised, as needed, to meet the needs of the converted development; (3) water and sewer systems are adequately designed;  and (4) sufficient parking is available to accommodate the converted development. 

In addition to arguing that the applicant failed to meet the burden of proof as to the conditions of the Conversion Statute, the Board claimed that approving the conversion application would create a density violation.  Since the applicant received a density bonus for age-restricted development, if the conversion were approved, the Board argued that the project would require a (d) variance for density pursuant to N.J.S.A. 40:55D-70d(5).  The court dismissed this argument, citing the plain meaning of the Conversion Statute, which states:

“No application for an amended approval seeking the authority to construct a converted development shall be considered a “use variance” or other “d variance” application pursuant to subsection d.  of section 57 of P.L.  1975, c 291 (C:4055D-70).”

The court ultimately concluded that the applicant had met its burden of proof and that the denial of the conversion application by the board was unreasonable.  The court remanded the matter back to the Board an ordered that the conversion be approved subject to the conversion of the originally proposed bocce courts to a “tot lot” for children.  

The Conversion Statute remains an attractive option for distressed, age-restricted development projects, provided the projects and the application for conversion can meet the statutory requirements, including a 20% set aside for affordable housing.    The publication of this decision helps shed light on the conversion process and eliminate confusion as to its application. 

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.