Recent Blog Posts

• Can Community Associations Restrict Sex Offenders?
  Jonathan H. Katz and Elysa D. Bergenfeld, members of Stark & Stark's Community Associations group, authored the article Can Community Associations Restrict Sex Offenders? for the April 2008 issue of Community Trends. The article discusses the steps New Jersey municipalities have taken over the past several years in an attempt to increase the safety of their residents, specifically for the children's safety in these areas. The article addresses "Pedophile-Free Zones" ordinances which prohibits sex-offenders from residing in or loitering within 500 feet of schools, parks or playgrounds. You can read the full article here. ....
• Avoiding Litigation In A Complex World
  David J. Byrne, Shareholder and member of Stark & Stark's Community Associations group presented a seminar at the 21st Annual Cooperator's Co-Op & Condo Expo which was held April April 28 - 29, 2008 in New York. New York. The seminar focused on avoiding litigation and stopping lawsuits before they start. Mr. Byrne discussed strategies for avoiding litigation related to everything from unpaid fees to disputes between neighbors, and discussed and analyzed laws and regulations governing administrative documents. You can view a copy of the seminar materials here. A full recording of the seminar will be available online next week. ....
• Condominium Owner May Not Withhold Payment of Assessments Because of Claimed Water Infiltration and Mold
  A unit owner in a top floor of a Union City condominium recently decided to pay his monthly assessments into an escrow account, alleging that the condominium association had failed to maintain the roof, proximately causing damage to the unit, and personal injury to the owners living inside. In this matter, the owners filed a suit against the condominium, its board members and its managing agent, seeking damages associated with what they contend is a breach of duty on the condominium's part. The owners vacated their unit, and now claim that the condominium must restore the unit's interior and there after pay money to plaintiffs to compensate them for the loss of use of the unit and for disease and other maladies from which they contend to be suffering. In response, the condominium recorded a lien and filed a counterclaim seeking a judgment for all unpaid assessments, late fees and attorney fees. With the case still in its early stages, Megan Christensen and I filed a motion for partial ....
• David Byrne to Present at 2008 Cooperator Expo
  David J. Byrne, Shareholder in Stark & Stark's Community Associations group will present at the 2009 Cooperator Co-Op & Condo in New York, New York. The expo will take place Tuesday April 29th from 9AM - 5PM. Mr. Byrne will present  on avoiding litigation.  During the seminar Mr. Byrne and an experienced property manager will discuss strategies, ideas and ways for cooperatives, condominiums and homeowners associations to avoid litigation.  The speakers will discuss ways unpaid maintenance fees and assessments can be collected, ways regular payments can be assured, without necessarily resorting to counsel.  They will discuss alternative dispute resolution and conflicts among shareholders, owners, neighbors, boards and others.  Strategies, both practical and legal, to deal with difficult and objectionable shareholder and/or owner conduct will be provided.  Laws and regulations applicable to document retention, and the inspection of records by ....
• What You Type May Be Used Against You
  Before sending any email, especially one associated with your role as a Board Member, answer this question: How would you feel if this email were projected onto a large screen in open court in the presence of a jury?  I suspect if more people asked themselves this simple question, the number of emails sent per day would decrease dramatically.      With the proliferation of email as a preferred form of communication, Board Members are in a unique situation.  They become members of a Board of Trustees and their personal lives immediately become intermingled with the business of the Association.  They become fiduciaries to their neighbors and friends, all the while maintaining personal relationships with those people. Often times, the line is blurred between friendship and Association business and as a result communications that might not be professional in nature, or in line with their duties as Board Members, are sent to other Board Members or other ....
• HUD Releases New Guidelines on "Reasonable Modifications" under the Fair Housing Act
  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 ....
• Collecting Unpaid Common Charges in New York
  Common charges are essential to the operation of a condominium association. Such charges pay for the care and maintenance of the buildings and grounds, on-site staff, upkeep of recreational facilities, etc. If owners falls behind in common charge payments, the building may face difficulties paying for operating expenses. When owners default on their obligation to pay common charges, the shortfall is borne by the other unit owners by way of increases in common charges or assessments. Most governing documents, whether it be the master deed or the by-laws include a provision that provides that every unit owner, by acceptance of a deed or other conveyance agree to pay the condominium association all common expense assessments contemplated in the governing documents. No unit owner may waive or otherwise avoid liability for common charges by non-use of the common elements or for any other reason. If a unit owner falls into arrears, the board of managers (the “Board”), on behalf ....
• Repairs During Transition or Litigation
  Organized and thorough records could encourage a contractor or developer to settle a dispute with an association short of trial or even prior to initiating litigation. It is imperative that a specific procedure be put into place and followed with respect to construction issues that arise at an association during transition or when an association is involved with or anticipates litigation with its developer and/or subcontractors. Evidence of complaints, including phone logs, correspondence or electronic communications from home owners, estimates, work orders and proposals should be well documented and maintained in an organized fashion so that all such evidence can be presented when and if necessary. In the event repairs are necessary, consideration must be given to preserving developer and contractor warranties. No work should be initiated without notifying all potential defendants of the anticipated work, and when applicable, confirming with your attorney that completing the work will ....
• The Right to Dry: Using Clotheslines in Community Associations
  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 ....
• Title 39, New Jersey's Municipal Services and Ownership of a Community's Roads
  Very often communities and their boards believe that the benefits and/or protections afforded by what is commonly known as "Title 39", and the protections of New Jersey's Municipal Services Act, are available to communities only to the extent those communities' roads are public (i.e., dedicated to the municipality). While often it may be beneficial for a community to have public, as opposed to private, roads, the benefits and/or protections referenced above are not conditioned on that community having public roads. Briefly, N.J.S.A. 39:5A-1 allows a community to ask its local municipality to apply New Jersey's motor vehicle laws to the private roads and streets located within that community. Additionally, New Jersey's Municipal Services Act, N.J.S.A. 40:67-23.2 to -23.8, obligates every municipality to either provide certain services to a community located in that municipality, or reimburse that community for these services. The "services" include snow and/or ice ....
• Thank You for Not Smoking
  More than a year has passed since New Jersey enacted its Smoke-Free Air Act (the “Act”) banning smoking in most public places. The smoking ban impacts community association owners because clubhouses fall under the “indoor public place” and “workplace” categories. The Act requires associations to place no-smoking signs at clubhouse entrances, which clearly notice fines for violators. Persons found smoking in non-smoking designated areas are subject to a $250.00 fine for the first offense; a $500.00 fine for the second offense and a $1,000.00 for subsequent offenses. These steep penalties are clearly meant to deter offenders. In addition, there has been some interest and action to enforce a “25 foot rule”, which would prohibit smokers from coming within 25 feet of an establishment before lighting up. This proposal, however, was not made part of the April 15, 2006 smoking ban and will be left up to local businesses and entities to place such ....
• Board Member Liability
  In most New Jersey Community Associations it is difficult to find qualified and interested persons to serve on the Board of Trustees.  Volunteer Board Members must put in long hours for no pay and sometimes little appreciation.  Now, consider for a moment if members of Boards were exposed to personal judgments for their actions while serving as a member of a Board.  It is obvious that it would be nearly impossible to find anyone who would serve on a Board if they could be liable personally for reasonable decisions they make as a member of the Board.  In order to protect Board Members, and to encourage people to volunteer their time, New Jersey has created a system in which Board Members are protected during their service on the Board.  However, it is a common misconception that Board Members are immune from lawsuits in connection with their duties as members of a Board.  There is no such statute in New Jersey that renders a Board Member completely immune ....
• Eliminating the 80/20 Rule Offers Tax Relief to New York City Co-ops
  We all want to enjoy tax benefits and increase the value of our homes.  Well, New York City co-ops were formally restricted in that respect pursuant to Section 216 of the Internal Revenue Service (“IRS”) code.   This federal tax rule (also known as the “80/20 Rule”) required residential co-ops to get at least 80 percent of their gross income from their tenant-shareholders and no more than 20 percent form other sources like commercial rents.  The rule was created in the early 1940's when Congress sought to give co-op shareholders tax deductions yet wanted to keep commercial corporations from taking advantage of tax benefits (these benefits include deductions for property taxes and mortgage interest, and the shielding of up to $500,000 from capital-gains taxes when the co-op is sold).  Under the 80/20 rule, New York City co-ops routinely rented commercial space at bargain rents and charged the shareholders higher maintenance charges in ....
• Municipal Services: Is Your Community Association Paying Twice?
  Jonathan H. Katz, member of Stark & Stark's Community Associations group, authored the article Municipal Services: Is your Community Association Paying Twice?  for the Winter 2008 edition of the Community Association's Community Assets. You can read the full article here (PDF). ....
• New Law Requires Removal of Snow and Ice From Handicapped Parking Within 24 Hours
  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 ....
• New York Condominiums Sue Town Over Municipal Services
  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 ....
• Higher Foreclosure Rates Mean Closer Oversight By Associations And Managers
  It seems impossible to watch the news or read the paper these days without hearing about the troubled real estate market, as well as the troubles Americans are having with their mortgages.  According to the California-based real estate tracking company,  RealtyTrac, roughly 2.2 million homes received foreclosure-related warning notices in 2007.  In 2006, 1.3 million homes received those warning notices.  Because of missed payments noted at the end of 2007, it is expected that the number of homes to receive foreclosure-related warning notices in 2008 will be even larger.  Evidence shows that the states hardest hit by foreclosures are Nevada, Florida, Michigan and California.  In 2007, New Jersey saw 53,652 foreclosure filings, up 34% from 2006.  New Jersey's foreclosure rate for 2007 was 0.9% (or, less than one property in foreclosure for every 100 properties in New Jersey).  In contrast, the foreclosure rate in 2007 for Nevada was 3.4% and for ....
• Pending Litigation Impacting NY Condominiums and Cooperatives
  There are basic laws that governs condominiums (“condos”) and cooperatives (“co-ops”) in New York.  Condos are governed by the New York Condominium Act, Article 9-B, Real Property Law (the “Condominium Act”). Co-ops are governed by the Business Corporation Law.  There are always new issues that arise requiring new laws that impact residents of New York condos and co-ops. One bill in New York that has many residents, board members and managers concerned is the “Fair and Prompt Disclosure Act”, also known as Intro 119.  This bill would require co-ops to provide specific reasons for the rejection of any potential purchaser.  This bill is at the City Council level and is the same as the bill in Albany under consideration, AO1000.  Bill AO1000 requires co-ops to provide a prospective purchaser with a written statement of reasons when withholding consent to purchase and voids any agreement inconsistent with such ....
• How the Condo Board Stole Christmas: Restricting the Display of Holiday Decorations
  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 ....
• Rambo at the Reigns: When Boards Abuse Their Power
  David J. Byrne, Shareholder and member of Stark & Stark's Community Associations Group was quoted in the article, Rambo at the Reigns: When Board Members Abuse Their Power, in the October 2007 issue of the New Jersey Cooperator. The article discusses the ways in which power can be abused in a homeowners association, and the warning sings one can use to determine if the power given to a board member is being abused. The article also addresses ways in which residents can fight back against an abusive board member. You can read the full article here. ....