At the law firm of Shivers, Gosnay & Greatrex, LLC in Cherry Hill, New Jersey we are dedicated to securing full compensation for victims of negligence. Our accomplished attorneys have more than 75 years of combined experience and Gregg Shivers has been Certified by the Supreme Court of New Jersey as a Civil Trial Attorney, a designation given to a very small percentage of New Jersey lawyers. Donald Gosnay, George Greatrex and Gregg Shivers each bring solid credentials and strengths to their litigation practice, and they share the same philosophy of personalized service and pursuit of justice. You can find more information by visiting our website, liking us on facebook, or following us on twitter.
On July 13, 2017 new legislation was signed into law which could significantly impact community and condominium associations in New Jersey (P.L. 2017 Chapter 106, known as the “Radburn” bill). Portions of the new law addressing association elections go into effect on October 1, 2017 in order to give associations an adequate opportunity to review these new provisions to determine if and how they affect their current election procedures; the balance of the provisions in the new law take effect immediately. We will be providing more information to our association clients in the coming weeks, however here are a few highlights of the new law:
- In any elections occurring after October 1, unit owners in good standing will have the right to nominate themselves or other owners in good standing. Bylaw provisions requiring nomination by a Nominating Committee or requiring the signing of a petition by other owners will no longer be valid. Nominating Committees may still nominate owners for election to the board but they may no longer be the exclusive source of nominations to an association’s governing board.
- Notices seeking nominations for the board must be sent to all owners not less than 30 days before the notice of the election meeting is sent.
- Notices of the election meeting must be sent to all members 14 or more days before the meeting date, but not more than 60 days before the meeting date.
- Unless the governing documents set a specific time or interval, the elections shall be held at two-year intervals, and terms shall not exceed 4 years, although board members may serve more than one term.
- Candidates’ names must be listed alphabetically on all ballots, proxy ballots and absentee ballots.
- Electronic voting in board elections is statutorily authorized and electronic notice of meetings is also authorized if permitted under the bylaws of the Association.
- A somewhat complicated provision allows an association’s board to amend the bylaws without a vote of the members if no more than 10% of the owners object to the proposed amendment.
How these new laws affect each Association depends on their existing governing documents. Upon request, we will review your specific governing documents and provide you with detailed direction on what steps need to be taken to ensure that you are in compliance.
Board Training – each new community associationboard member should receive training on their duties, obligations and restrictions as board members. Remember that a board member has a fiduciary duty to the association and if they fail to properly carry out that duty, they can be held personally liable. Hopefully, all of you have Directors & Officers (D & O) insurance policies but there are instances where the insurance company will disclaim coverage because the board member(s) acted outside the scope of their duties and responsibilities. Therefore, it is important that board members receive training before they engage in the administration of the association. If you have a claim made against a board member and you submit it to your D & O insurer, you may well be asked if all of the board members received training. If training has not been provided, you better be prepared with a good answer as to why not. At a bare minimum, it should be a written requirement that any new board member certify that they have read all of the governing documents. The lawyers here at Shivers, Gosnay & Greatrex, LLC can provide that training to you at our normal hourly fee. Most management companies also have training available.
One of the more confusing issues affecting condominium owners and residents is what to do when water intrusion causes damage to a condominium unit. Of course, the causes of water intrusion are numerous, including but not limited to, damage to the exterior of the building (roof or siding), and failure of certain internal systems (hot water heater, air conditioner, leaky pipes). It is recommended that the first action to take upon discovering water intrusion in a condominium unit is to contact the association’s property manager and report it. It is important to have an expert determine the source of the water. As a general rule (you will have to review your own association’s governing documents to be sure) the Association is responsible to maintain, repair and/or replace the common elements (including the roof and siding), whereas the unit owner is responsible to maintain, repair and/or replace the unit (from the interior surfaces of the walls inward) and its appurtenances (such as the appliances and operating systems that service only that unit). So, if there is a hole in the roof that allows water to infiltrate into the unit, the Association will be responsible to fix the hole and to repair or replace any part of the building that is not considered part of the unit. The unit owner is generally responsible to repair or replace any part of the interior of the unit that is damaged, which is why it is important for every unit owner to pay for and maintain homeowners insurance (HO6 for condominium owners) to cover any damage to the inside of the unit. There is an exception to this: many condominium associations are required by their governing documents to carry blanket insurance coverage on the buildings and the units which will be available to the unit owners, in certain circumstances, even for damage to the interior of their units in excess of the applicable deductible. It is best to discuss these issues with your association’s property manager immediately upon discovering water intrusion and damage in your unit.
Winter’s pending arrival is a good time to remind ourselves of the potential hazards of snow and ice on our community’s sidewalks, roads and parking areas. In spite of the diligent efforts of your association’s snow and ice removal contractor, slippery conditions may still exist during and after snow or ice weather events. A condition particularly difficult to address is “thawing and re-freezing” of snow and ice on cleared surfaces. This occurs when the warmer temperatures during the day thaw the snow that has accumulated on lawns and in piles left by the contractor, creating water runoff onto sidewalks, roads, and parking areas. That water then tends to freeze during the colder night hours, creating slippery conditions the following morning and sometimes throughout the day. Please be careful of such conditions at all times during the winter months, and immediately report to your property manager any slippery areas you see in your neighborhood.
We are proud to welcome JENNIFER L. WEBB, as an associate attorney in our Cherry Hill offices. She focuses her practice on the representation of condominium and community associations. She advises the firm’s clients on matters including the collection of delinquent assessments and related charges, daily operations, the creation and enforcement of restrictive covenants and regulations, and fair housing compliance.
Ms. Webb has been practicing law in New Jersey and Pennsylvania for over 8 years. She graduated from The College of New Jersey, magna cum laude and received her Juris Doctorate from Rutgers University in Camden. She was born and raised in Burlington and currently resides in Springfield Township with her husband and children. She can be reached at firstname.lastname@example.org.
The New Jersey Supreme Court has recently determined that condominium associations are not immune from claims alleging injuries that occurred on private sidewalks which comprise part of the association’s common property. In Qian v. Toll Brothers Inc., a resident of a condominium association (who was not the record owner of the unit) alleged injury following a slip and fall on the ice on the association-owned sidewalk. The resident filed a lawsuit against the condo association, the developer, the management company, and the contractor responsible for snow and ice removal. In finding that the condo association is not immune from such lawsuits, the Supreme Court focused on who owned and controlled the sidewalk rather than who used the sidewalk. By doing so, the Supreme Court distinguished the facts in Qian from its 2011 decision in Luchejko v. City of Hoboken, which held that condo associations were not liable for injuries sustained on a public sidewalk adjacent to the Association. Unlike the association in Luchejko, the condo association in Qian owned the sidewalk in question and was responsible to maintain the common property in accordance with its governing documents and the NJ Condominium Act.
Ultimately, the Qian holding confirms that condominium associations have the duty to maintain their common elements, including but not limited to sidewalks, in a reasonably safe condition. If the common elements are not reasonably maintained, the association may be liable for any injuries sustained. While this case involved a condominium association, it is likely that such a holding would also apply to a non-condominium community association charged with the responsibility to maintain its common area in a reasonably safe condition.
Importantly, one issue the Supreme Court in Qian did not address was whether the tort immunity provision contained in the condo association’s governing documents protected the association in that case because the plaintiff was only a resident of the community, not an owner (the record owner was the plaintiff’s son). The tort immunity provision as set forth in N.J.S.A. 2A:62A-13 was designed and worded to protect common interest community associations (including condo associations) against personal injury lawsuits by unit owners. So, the Supreme Court in Qian left unanswered the question of whether it also protects the association from personal injury claims by a resident who doesn’t own the unit. This issue was remanded for further exploration by the trial court.
If you have any questions concerning this case, including your association’s duty to maintain the common elements and whether your association’s governing documents contain (or should contain) the tort immunity provision, please contact any of the lawyers at Shivers, Gosnay & Greatrex.
The New Jersey Supreme Court recently held that a rule imposed by the Board of Directors of a NJ cooperative apartment building that prohibited its members from distributing election leaflets in the building violated the free speech guarantee in the New Jersey State Constitution (see Dublirer v. 2000 Linwood Avenue Owners, Inc. published December 3 2014). Mr. Dublirer, a resident of the co-op, was interested in running for the Board in an upcoming election and asked the Board for permission to distribute campaign materials in the building. The Board, citing a “house rule” that barred soliciting and distributing any written materials, denied his request, claiming that the rule’s purposes were to preserve the residents’ quiet enjoyment of their apartments and to cut down on litter in the building. The resident sued the Association, and the matter was litigated up to the NJ Supreme Court, where the court found that the resident’s message was akin to political speech and thus entitled to the highest level of protection in our society. Citing to its prior well known free speech decisions in the HOA context, the Twin Rivers and Mazdabrook opinions, the Court determined that while an HOA board can adopt and enforce restrictions that are reasonable as to time, place and manner, in this case the ban on the member’s right to disseminate his election materials to his neighbors in the building was unreasonable. In short, the member’s right to free speech in this matter was found to outweigh the Board’s concerns about the use of the apartment building.
So, the lesson learned for HOA boards in New Jersey is to ensure the rules and regulations of the Association are reasonable as to time, place and manner, particularly when they apply to free speech issues (such as political signs, leaflets and speeches).
Having now survived one of the worst winter seasons on record here in New Jersey, with many condominium and homeowners associations’ snow removal budgets well-exceeded, the question now faced by many association governing bodies is: “How will we pay these bills?”
Homeowner associations in New Jersey have available to them various ways to generate revenue to pay their bills, the main one of course is the ability to impose and collect annual common expense assessments from their members. Traditionally, association operating budgets are developed in the Fall based on what the association’s expenses are reasonably anticipated to be for the upcoming fiscal year, and then implemented on the first of that year. Not many association boards in New Jersey accurately projected what their upcoming snow removal costs were going to be for 2014, thus creating budget deficits of varying degrees. Some associations experienced minor budget deficits that could be covered by other under-budget line items or “snowy day” funds. But many others were so over budget that there existed the danger of not being able to pay its bills going forward, so those boards were required to impose further assessments against their members on an emergent basis.
But are those further assessments considered “special assessments” or “added assessments”? There is a BIG difference. Most sets of association governing documents (Master Deed, Declaration of Covenants, or By-laws) authorize an association governing board to adjust or increase the amount of the annual assessments, during the fiscal year, whenever the Board is of the opinion it is necessary to do so in order to meet unanticipated increased operating or maintenance costs, or financial emergency. This is traditionally called an “added assessment”, and as such does not require the voting approval of the membership of the association. Likewise, most sets of association governing documents provide for the imposition of a “special assessment” upon the members, which traditionally is used to defray, in whole or in part, the cost of any reconstruction, unexpected repair or replacement of an existing common element not determined by the Board to constitute an emergency or immediate need and for which funds in reserve are inadequate. Importantly, most governing documents also provide that if this special assessment is greater than a certain percentage of the common expense assessment in the last annual budget, or if it is greater than a specific threshold sum, then the Board must first obtain the voting approval of the entire membership, usually a super-majority, before such an assessment can be imposed.
It is important for association boards, and the members of their associations, to understand the difference between these types of assessments and how they are defined in their governing documents. Of course, it is always a good idea to seek the advice of the association’s professionals (lawyers, accountants and managers) before imposing any added or special assessment.
Ice damming is a natural phenomenon that occurs in all types of residential housing and commercial buildings, whether in a common interest ownership community like condominiums, or in stand alone structures. Ice dams usually occur after a heavy snowfall and several days of freezing temperatures. Warm air inside the building leaks into the attic and will warm the underside of the roof causing snow and ice on the roof to melt. The melted water will drain along the roof, under the snow, until it reaches the cold overhang or gutter. The overhang tends to be at the same temperature as the outdoors and the melted water will refreeze and form an ice dam and icicles. The ice dam can cause damage to the roof, which can result in water leaks to the inside. Frequently the result will be a water spot on the ceiling under the roof damage. Water from melting ice and snow can also infiltrate inside in other ways, through windows, cracks in the siding/sheathing, and other open spaces. In some circumstances, the problem belongs solely to the owner of the residence.
However, when it occurs in condominium buildings, it becomes an issue for the condominium association (which usually owns and is responsible to maintain the commons elements, such as the roofs, the gutters, the attic spaces, and the siding) as well as for the owner of the condominium unit (who owns from the perimeter walls of the unit inward). As with any situation involving water infiltration from the common elements into a condo unit, the association has the obligation to address the source of the infiltration and stop the leak, while it remains the responsibility of the unit owner to repair the water damage which occurs inside the unit (*see also below). This analysis is complicated by the fact that many condo associations have insurance policies which cover all damage to the property, even damage that occurs inside a unit, over and above the applicable deductible. So, if the damage to the inside of the unit exceeds the association’s insurance deductible, the insurance covers the overage, while the unit owner is responsible for the amount of the deductible (via their own homeowners – HO6 – coverage, or out of pocket). If the damage is less than the association’s deductible, the unit owner is solely responsible for the cost of repairing the damage.
As for what an association can do to prevent ice damming from occurring, or remediate it once it has occurred, there are various products and techniques advertised in the marketplace (simply search online for “ice damming solutions”). Some are likely more effective than others. Whether it is “reasonable” for an association to purchase and implement these products and techniques (that is, required by the association’s duty to maintain the common elements) involves a cost/benefit analysis by each association based on their financial situation, the construction of their buildings, and the frequency and severity of the problem. If a complaint is received from a unit owner that water is infiltrating his/her unit due to ice damming, it would not be reasonable for an association to simply refuse to respond by blaming it on a weather event they could not control. There are likely cost-efficient techniques an association could employ that would at least stop further leaking. Researching such techniques, including seeking expert opinions on how to prevent such problems, is something an association should do…at a minimum…to satisfy their duty to the members of the association.
[*In accordance with NJ court opinions on the issue, an HOA or condo association is responsible for damage to the inside of a unit only if the association was negligent in addressing the source/cause of the damage. For instance, if a unit owner reported to her association that water leaking into her unit through a hole in the roof of the building (or, as here, from ice damming), but the association failed to timely address the leak and infiltrating water continued to damage her unit, or worse yet failed to address the leak at all, in that situation the association could be found negligent and thus responsible for the water damage to her unit. Otherwise, a unit owner is responsible for any damage to the inside of his/her unit under the association’s insurance deductible. This is why it is important for an association to require that all unit owners carry HO6 insurance on their units.]
If you have specific questions about this issue or other HOA-related issues, don’t hesitate to contact our office to speak to one of our attorneys.