Recent Blog Posts

    • Appellate Court Interprets 'Housing-related dispute' Clause in New Jersey's Condominium Act to Include Assessment-Related Disputes New Jersey’s Appellate Court recently held that unpaid assessment and/or maintenance fee delinquency disputes between a condominium and a unit owner are ‘housing-related’ disputes for the purposes of New Jersey’ Condominium Act, N.J.S.A. 46:8B-14(k).  In Bell Tower Condominium v. Pat Haffert, et al, the board approved a special assessment related to alleged necessary repairs.  Haffert’s share was $22,000.00.  Haffert refused to pay.   Haffert – who was a board member at the time - challenged the special assessment on procedural and substantive grounds.  He argued that the vote was mishandled, that the board had violated the Act repeatedly over the years via its failure to procure annual audits, have elections, have open meetings, make financial records available for inspection, etc.  When Haffert still refused to pay, and attorney communications failed to resolve the dispute, the condominium sued.  Haffert ....
    • The Entire Controversy Doctrine -Don't Waive Your Rights In arguably the best episode of Seinfeld ever, Frank Costanza invented a new holiday called Festivus (for the rest of us), which started with the “airing of grievances.” Similar to Mr. Costanza notifying his dinner guests “I gotta lot of problems with you people, now, you’re gonna hear about it,” New Jersey’s Entire Controversy Doctrine requires parties to plead claims in a lawsuit that are related to or arise out of the same transaction or event.   The Entire Controversy Doctrine “is intended to be applied to prevent a party from voluntarily electing to hold back a related component of the controversy in the first proceeding by precluding it from being raised in a subsequent proceeding thereafter.”  Oltremare v. ESR Custom Rugs, 330 N.J. Super. 310, 315 (App. Div. 2000).   For example, if a condominium association sues a residential developer for construction defects but fails to plead under the Consumer Fraud Act (which ....
    • Stark & Stark Attorney to Moderate and Present Seminar on Building Site Safety Regulations at January NYARM Meeting David J. Byrne, Chair of Stark & Stark's Condominium & Co-Op Law Group, will moderate and present materials related to Site Safety Regulations and New York City’s Condominiums and Co-ops at the January 18, 2012, NYARM Meeting. The presentation will be held in the Ground Floor Library Pavilion at the General Society of Mechanics & Tradesmen, Manhattan. Mr. Byrne will focus his presentation on the fiduciary duties of condominiums and co-ops as those duties relate to New York City’s site safety regulations. He will also moderate the entire presentation which will include John Chiusano, R.A., NYC Dept. of Buildings, James Fenniman, Bollinger Insurance and Scott Silberman, P.C., SMS Engineering.    ....
    • Appellate Court Slows Government's Attempt to Remake New Jersey's Affordable Housing Rules A three-judge appellate court just halted – perhaps only temporarily however - the Christie administration's work to overhaul New Jersey’s rules governing a municipality’s rights and obligations in relation to affordable housing within that municipality.  The government’s extinguishment of the Council on Affordable Housing (“COAH”) was not undone.  However, the rules created by COAH and/or in relation to COAH were reinstated, pending a full hearing and decision by the appellate court in 2012.  The reinstated rules will be administered, until that hearing, by the New Jersey Department of Community Affairs.   The existence of affordable housing-related rules, and how they are administered and/or enforced, is heavily connected with the extent and nature of New Jersey’s residential development.   If you would like to discuss this client alert in more detail or how it may affect your community association, please contact ....
    • HDFC Primer A Housing Development Fund Company (HDFC) cooperative is a limited equity cooperative incorporated under Article XI of the Private Housing Finance Law. HDFC cooperatives are typically sponsored by an organization called the Urban Homesteading Assistance Board (UHAB). UHAB assists in the process of turning over City-owned buildings to their residents and in creating the cooperative.   These cooperatives are intended for persons of low income. As such, the co-ops have both income rules for people becoming shareholders and caps on the resale prices when shareholders leave. The income rules will vary on a case by case basis, however, in all cases the income cap will not exceed 120% of the "Area Medium Income” when UHAB is the direct sponsor of the co-op.   Roughly, HDFC cooperatives converted prior to 1995, have an income restriction on new shareholders equal to 6 or 7 times the annual maintenance plus utilities. Families with less than 3 dependents use 6 times the ....
    • Pennsylvania House Bill 1582 and its Effect on Condominium Associations House Bill 1582 was introduced on May 24, 2011 and provides the Business Improvement Districts (BID) the option of adopting an alternative method of billing residential units within a condominium association. Currently BIDs assess a fee on every property based upon the tax assessed value of the property.  Each individual condo owner then receives a bill for their property assessment and pays the assessment directly to BID.   The new Bill would allow the BIDs to value the condominium building in full and then send the bill with the assessed value to the condominium association. The association would be responsible for billing each condominium owner based on their proportionate share of the condominium and this additional expense would be added into the common expenses.   A problem with the proposed alternative way for BID to bill the condominiums is that if an association has delinquent owners, the association would still be responsible for paying BID in full and all the ....
    • Condominiums With Window Wall Systems Face Potentially Huge Repair Bills The sunlight and the scenic views are often times what draw people to buy a condominium and co-op unit with floor to ceiling windows. However, many of those owners and their Associations soon come to regret that decision.  Floor to ceiling walls made of glass are generally referred to as "window wall systems".  Typically, the system is built on site by a contractor who assembles pre-cut pieces of metal and glass on site.  Unfortunately, although they provide spectacular views and a sense of openness, too often the systems are plagued by major problems.  These problems include insulation failures, water intrusion, and air leaks causing higher heating and cooling bills.  The cause of these problems can generally be traced back to the contractor's failure to follow the manufacturer's instructions and details.  Contractors all too often fail to install proper sealants (caulk), insulation and waterproofing (flashing), which can cause immediate ....
    • Do Community Associations Have the Authority Needed to Prohibit the Leasing of Units A recent Appellate Division case, approved for publication (which means it will have Statewide application and authority) was recently decided regarding the ability of a homeowner association to restrict the leasing of a home.  The case, Cape May Harbor Village And Yacht Club Association, Inc. v. Sbraga, et al., while a case of first impression in New Jersey, will probably be limited in scope and applicability throughout the State of New Jersey.          Cape May Harbor And Yacht Club Association, Inc. (the “Yacht Club”) adopted an amendment to its governing documents that prohibited homeowners from leasing their homes to third parties.  Deborah Sbraga (“Sbraga”) sued, and at trial, the trial court ruled in favor of the Association and its enforcement of the leasing restriction.  Sbraga appealed.   The Yacht Club is a very exclusive enclave consisting of twenty-four single family homes, common areas and a ....
    • To Cure, or to Contest: The New York City Department of Buildings and Environmental Control Board Violations An Environmental Control Board (“ECB”) violation is issued by the Department of Buildings when a property does not comply with a part of the New York City Construction Codes and or Zoning Resolution (“ECB Violation(s)”).  There are three classes of ECB Violations: Class 1 (Immediately Hazardous), Class 2 (Major) and Class 3 (Lesser).    To resolve an ECB Violation, a building may agree to cure the violation or contest the violation:  Cure the Violation. If you choose to cure the violation, you must admit the violation and certify correction by the “cure” date listed on the Notice of Violation.  This will require you to complete an “AEU2: Certificate of Correction” form, provide photographs and receipts to serve as proof of the correction and provide a notarized statement attesting to how the violation is corrected.  Contest the Violation. If you choose to contest the violation, you must appear at a hearing ....
    • Can Your Condo Board Prevent You From Keeping Your Dog? It’s never clear whether your dog, who you consider to be a part of your family, will be able to move in with you when you fully transition into that swanky new condominium building or cooperative in the heart of New York City. Recent years has seen an influx in dog disputes and litigation arising from a condominium or cooperative’s policy on pets. In New York, however, one thing seems to be clear - the Association’s Governing Documents, meaning its Declaration, controls whether your pet will be allowed into your building. This extends even to certain breeds of dogs. It is not uncommon for Condominium or Cooperative Board of Managers to prohibit pets altogether, restrict pets by size, or simply restrict an aggressive breed of dogs.   While Condominium Boards can take some solace in the fact that New York has given them the liberty to enforce the terms of the Associations’ Governing Documents, New York City’s locals laws require a Board to be more ....
    • Condominium Board Members Must Treat All Unit Owners Equally Under the New Jersey Condominium Act and related case law, the boards that manage condominium or homeowners associations are required to treat their members fairly and equally. Most boards conform to that standard as a matter of course – they are, after all, made up of volunteers who want to maintain their community and help their neighbors. However, board members are regular people and as such, are capable of making decisions based upon personal feelings, bias and other improper basis, which, if challenged, could cause the Association to incur significant expense. A matter with similar issues was recently litigated by Stark & Stark, which acquired a cash-settlement and a new roof on behalf of its clients, amidst evidence that the Board refused to replace the unit owner’s roof contrary to the advice of the Association’s long time roofer.   After initial inquiries regarding the timing of the replacement of their aging roof, the unit owners were advised that ....
    • Financial Best Practices for Condominiums, Cooperatives and Homeowners Associations David J. Byrne, Co-Chair of Stark & Stark's Condominium & Co-Op and Community Association Groups, will participate in a lunch & learn webinar seeking to aid communities and buildings with Financial Best Practices for 2012.  Mr. Byrne will focus his presentation on alternative, creative and smart common charge recovery and management strategies, using technology and teamwork to improve collections, creating a “Culture of Payment” in your building, handling abandoned units via rent receiverships, rentals and other solutions, and finding the positives in an owner/shareholder bankruptcy. Mr. Byrne will be joined by Annette Murray, CPA, CVA, Wilkin & Guttenplan, P.C. The webinar takes place on Thursday, December 8, 2011, from 12:30 p.m. to 1:30 p.m.  Additional information can be found online here. (PDF)   ....
    • Stark & Stark Shareholder Presents Seminar Discussing Community Associations' Financial Problems On November 4, 2011, I was a panelist at the New Jersey Institute for Continuing Legal Education’s seminar located in North Brunswick, New Jersey. The topic was “Community Association Law Summit: Top Ten Topics for 2011". The topic I presented in the afternoon session was centered around association financial problems, particularly collecting monies from members in order to keep the corporation solvent. The attendees were advised the underlying authority by which an association must and can collect maintenance fees, and I then proceeded to take the attendees through the process from the issuance of a collection letter, to obtaining a money judgment against a particular member, and how to successfully collect once that judgment is in place. As this is a heavily discussed and important topic during these trying economic times, interest was heightened as these attendees, mostly attorneys were able to take away certain nuances that may help them in their individual ....
    • Stark & Stark Shareholder Presents Seminar Discussing Rules and Regulations for Community Associations On October 22, 2011, I was a panelist at the New Jersey Chapter of Community Associations Institute Annual Expo. The seminar focused on Rules and Regulations for community associations. Particularly, the seminar focused how best to reconcile rules and regulations in light of New Jersey and Federal statutes that may be in opposition to the association-implemented rule.   For example, some discussion was centered around service animals in light of an association rule that prohibits animals of any type. The attendees were advised that even though actual notice was given to the members those animals were prohibited by virtue of receipt of the governing documents, Federal law allows service animals to live within associations if various parameters are met. As this runs counter to the association’s rules, the attendees were advised that Federal statute would prime the association prohibition.   You can listen to the full presentation online here.    ....
    • Stark & Stark Attorney to Present Seminar on Ethics for Condominiums and Co-Ops at November NYARM Dinner David J. Byrne, Co-Chair of Stark & Stark's Condominium & Co-Op Law Group, will present materials related to New York Condominiums and Co-ops ethical issues, standards and considerations at the November 14, 2011 NYARM Monthly Meeting and Dinner. The presentation will be held at the Jade Lounge, Forest Hills, Queens. Mr. Byrne will focus his presentation on relevant New York ethics-related definitions, guidelines, laws and authorities. He will also discuss various trade organization and other relevant ethical guidelines and standards. Mr. Byrne will be joined by Irwin Cohen, A. Michael Tyler Realty Corp., Peter Von Simon, New Bedford Management, and Stephen Beer, CPA, Czarnoski & Beer. This presentation follows Mr. Byrne’s similar presentation at NYARM’s 2011 Real Estate Expo in September. ....
    • Stark & Stark Attorney to Present Seminar at the Council of New York Cooperatives and Condominium's 2011 31st Annual Conference & Expo David J. Byrne, Co-Chair of Stark & Stark's Condominium & Co-Op Law Group, will present materials related to New York’s Condominiums and Co-ops and ever-important noise and other conduct issues and considerations at the Council of New York Cooperatives and Condominium’s 2011 31st Annual Conference & Expo. The Expo will be held on November 13, 201l at Baruch College, Manhattan. Mr. Byrne will focus his presentation on relevant New York noise-related definitions, guidelines, laws and authorities.  He will also discuss strategies and approaches to various noise-related problems and/or conflicts. Together with Irwin Cohen, principal of A. Michael Tyler Realty Corp., Mr. Byrne will discuss the role and importance of management in identifying and carrying out solutions to these types of problems.   ....
    • Debtors May Waive Notice of Wage Execution, So Long as the Waiver is "Knowing and Informed" Last week, the Appellate Division held, in the case of Midland Funding LLC v. Giambanco, that a consent judgment that contains clear language that a debtor has made a “knowing and informed” waiver of notice for wage execution does not violate any statute, rule or public policy. The Appellate Division went further to advise the trial judges that they may not unilaterally alter a parties’ consent judgment to comply with a statute or rule or to benefit either party. If a certain provision in a consent judgment is found not to comply with a statute or rule, the Court should reject the form consent judgment and return the case to the parties.   In this particular case, Giambanco (the “Debtor”) owed money on her credit card to creditor Midland Funding LLC. Midland Funding filed a complaint against the Debtor. The Debtor and Midland Funding reached a settlement, which was memorialized in the form of a consent judgment. When the consent judgment was signed by ....
    • New Jersey Community Associations Institute's 2011 Conference and Expo This Saturday, October 22, 2011, is the annual New Jersey Chapter of the Community Associations Institute’s 2011 Conference and Expo. The conference will be held at the New Jersey Convention & Expo Center in Edison, New Jersey from 8:00 A.M. to 2:30 P.M. The Expo highlights members of CAI and provides visitors with an opportunity to visit vendors’ booths, and more importantly, attend various educational seminars. I will be speaking on a topic that is always timely when it comes to dealing with living in close quarters. The seminar is entitled “Community Rule Book - Avoiding Fouls & Costly Penalties”. The seminar will deal with how managers and attorneys need to work together in formulating rules and policies for associations. I will discuss my role as general corporate counsel to community associations. Another panelist is an attorney who is engaged by insurance companies to provide a defense during those times when associations are being sued by members ....
    • Stark & Stark Attorney Presents Seminar on Ethics for Condominiums and Co-Ops at the 2011 NYARM Real Estate Expo David J. Byrne, Co-Chair of Stark & Stark's Condominium & Co-Op Law Group, presented a seminar entitled Ethics: Cooperatives & Condominiums as part of the 2011 NYARM Real Estate Expo. The presentation was held in New York, New York, Wednesday, September 21, 2011. Mr. Byrne focused his presentation on relevant ethics-related definitions, guidelines, laws and authorities.  He also discussed various trade organization and other relevant ethical guidelines and standards.  Mr. Byrne was joined in the presentation by Irwin Cohen, A. Michael Tyler Realty Corp., Peter Von Simon, New Beford Management, and Stephen Beer, CPA, Czarnoski & Beer.   ....
    • New Jersey Ranked Number 3 in the United States for Highest Mortgage Defaults The Mortgage Bankers Association’s National Bankruptcy Survey for the second quarter of 2011 (the “Survey”) found that New Jersey has an 11.36% rate of “seriously delinquent” mortgages.  As many community association boards, managers and legal counsel may see, when unit owners are not paying their mortgages, they are usually not paying their association fees.  When more than one of every 10 New Jersey mortgage loans are either in foreclosure or are more than 90 days in arrears, it follows that associations are also experiencing a high rate of delinquencies.   Other states with high rates of mortgage defaults were Florida and Nevada.  The Survey found that Florida had the highest mortgage delinquency rate with 18.68%, and Nevada had the second highest rate with 14.3%.  States with the lowest mortgage delinquency rate were North Dakota with 1.6% and Alaska at 2.24%.  There will likely be a surge in foreclosure filings now that ....
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