By Jonathan H. Katz, Esq.

Hill Wallack LLP’s Condo FAQs is a continuing series in which we answer frequently asked questions (FAQs) pertaining to condominiums, cooperatives and homeowners associations. These FAQs relate to various issues that include interpretation of governing documents, board meetings, suspension of privileges, collections, or bankruptcy and foreclosure.

Question:  We have been told that our association may not be responsible or liable for personal injuries or damages when someone slips and falls. Is that correct?

Answer:  If your by-laws contain a provision providing for tort immunity, the answer may be yes. New Jersey has a tort immunity statute that allows associations to shield themselves from liability for certain types of injuries caused to unit owners due to the association’s negligence. This immunity is applicable as long as the association has certain language in their by-laws or takes the proper steps to amend their by-laws.

Specifically, N.J.S.A. 2A:62A-13 provides:

By Jonathan H. Katz, Esq.

Hill Wallack LLP’s Condo FAQs is a continuing series in which we answer frequently asked questions (FAQs) pertaining to condominiums, cooperatives and homeowners associations. These FAQs relate to various issues that include interpretation of governing documents, board meetings, suspension of privileges, collections, or bankruptcy and foreclosure.

Question: I’ve heard that when a mortgage lender forecloses on a condominium unit, the association is entitled to six (6) months of assessments. I’ve also heard that the association has “limited priority” over the mortgage. Is that true? What does that really mean?

Answer: Pursuant to N.J.S.A. 46:8B-21(b) of the New Jersey Condominium Act, a condominium association’s recorded lien for delinquent common expense assessments may have limited priority over an existing mortgage under certain circumstances. If those specific requirements are met, the association to would be entitled to six (6) months of “customary condominium assessments” from the mortgage lender if the unit is sold as part of a mortgage lender’s foreclosure action.

Hill Wallack LLP’s Community Association Practice Group will be exhibiting at the 2013 New Jersey Cooperator’s Condo, HOA and Co-op Expo on Wednesday, May 1, 2013, 10:00 a.m. to 4:30 p.m., at the Meadowlands Exposition Center in Secaucus, New Jersey. Come say hello at Booth 435 and drop your business card for a chance to win a great prize!

Join board members, property managers, building owners and real estate professionals and meet building service companies, attend educational seminars and get your questions answered by a member of our team.

If you are involved in an insurance dispute relating to Super Storm Sandy, please ask us about reviewing your case free of charge. Contingent fees are available for Sandy representation.

For more information or to register to attend, click here!

By Jonathan H. Katz, Esq.

Hill Wallack LLP’s Condo FAQs is a continuing series in which we answer frequently asked questions (FAQs) pertaining to condominiums, cooperatives and homeowners’ associations. These FAQs relate to various issues that include interpretation of governing documents, board meetings, suspension of privileges, collections, or bankruptcy and foreclosure.

Question: What constitutes a “reasonable modification” under the Fair Housing Act and when must my association agree to a request from a resident for a modification?

Answer: The Fair Housing Act (“FHA”) makes it unlawful to discriminate in housing based on numerous factors, including race, religion, familial status and disability. One action specifically prohibited by the FHA is the refusal of housing providers, which includes community associations, to permit a reasonable modification – e.g., a structural alteration – of an existing property, occupied or to be occupied by a person with a disability, when the modification may be necessary to afford the person with full enjoyment of the premises.

In order to clarify the questions surrounding what constitutes a “reasonable modification” under the FHA, the Department of Housing and Urban Development, in conjunction with the Department of Justice, issued a Joint Statement that 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. The stated purposed of the Joint Statement is both to assist housing providers and community associations to better understand their obligations as well as to encourage persons with disabilities to know their rights regarding the “reasonable modifications” provision of the FHA.

The Joint Statement explains who qualifies as a person with a disability under the FHA and what information may be requested by a housing provider or community association regarding the disability. The Joint Statement also discusses specific examples of what constitutes a “reasonable modification,” such as widening doorways to allow for wheelchair access, installing grab bars in bathrooms, or installing a ramp to provide access to a public or common area, such as a clubhouse. Further, although the FHA requires housing providers and community associations to permit these modifications upon proper notice and a request, in many circumstances the person requesting a modification is responsible for payment of any costs involved.

You can read the Joint Statement here.

If you have a question about reasonable modifications under the FHA or another community association issue that you would like us to address, please e-mail it to us, along with your name and your association, to jkatz@hillwallack.com.

By Jonathan H. Katz, Esq.

Hill Wallack LLP’s Condo FAQs is a continuing series in which we answer frequently asked questions (FAQs) pertaining to condominiums, cooperatives and homeowners’ associations. These FAQs relate to various issues that include interpretation of governing documents, board meetings, suspension of privileges, collections, or bankruptcy and foreclosure.

Question:  How do we know if the township is correctly reimbursing our condominium association for street lighting, and garbage and snow removal?

Answer: In Part I, we discussed New Jersey’s Municipal Services Act, N.J.S.A. 40:67-23.2 to -23.8, and its requirement that every municipality in the State must either provide certain services to qualified private communities or reimburse these communities for such services.

The question now focuses on how the municipality must calculate the reimbursement owed to an association if the municipality determines not to provide the services.

Generally, community associations are only entitled to reimbursement in the amount it would cost the municipality if it were to provide that service itself. Associations are generally not entitled to reimbursement for services above and beyond what the municipality normally provides to other residents. For example, while it may cost an association significantly more to hire a private contractor to plow its roadways, the reimbursement required by law is only the cost to the municipality were it to provide such service, which in most cases is significantly less than the cost to the association. Moreover, while an association would be entitled to reimbursement for snow removal on its roadways, an association cannot seek reimbursement for those same services on sidewalks, driveways or parking areas.

However, this general rule regarding reimbursement does contain a caveat. If, for example, the nature of an association’s roadways make them more difficult to plow than normal public roads and streets, the association may be entitled to a greater reimbursement than the township’s normal cost per mile. This was the result in Stonehill Prop. Owners Ass’n v. Township of Vernon, 312 N.J. Super. 68 (App. Div. 1998), where the Court recognized that because the municipal roads could be plowed more efficiently than the association’s roads, which were curvy, winding and steep, the township was required to pay additional amounts by way of reimbursement for what the Court considered a “difficulty factor” over and above what the actual cost to the Township would be for providing these services.

If you have a question about municipal services or another community association issue that you would like us to address, please e-mail it to us, along with your name and your association, to jkatz@hillwallack.com.

By Jonathan H. Katz, Esq.

Hill Wallack LLP’s Condo FAQs is a continuing series in which we answer frequently asked questions (FAQs) pertaining to condominiums, cooperatives and homeowners’ associations. These FAQs relate to various issues that include interpretation of governing documents, board meetings, suspension of privileges, collections, or bankruptcy and foreclosure.

Question:  Is my association entitled to reimbursements from our township for certain municipal services such as street lighting, garbage removal and snow removal?

Answer:  Put simply, YES!  New Jersey’s Municipal Services Act – which was enacted in 1989 and went into effect in 1993 – is the first (and still only) legislation in the country that requires cities and towns to provide certain municipal services to community associations within their borders. In short, the Act requires that every municipality in New Jersey must either provide certain services – including the removal of snow and ice, collection of leaves, trash and recyclables, and lighting of roads and streets – to qualified private communities “in the same fashion” as the municipality provides such services along public streets or the municipality may opt to reimburse these communities for such services.

The purpose of the Act is simple – to eliminate the double payment for some services residents of these associations now pay through both property taxes and association fees.  Although the Act went into effect almost twenty years ago, many qualified community associations still fail to take advantage of having their township provide these services (or reimbursements) simply because they are unaware of the entitlement to them.

If your association is not receiving the benefits of the Municipal Services Act, please contact one of our community association attorneys to discuss how your association may be entitled to significant reimbursements that could be used to free up other funds for capital reserves, necessary repairs, or long-overdue improvements to your community.

If you have a question about municipal services or another community association issue that you would like us to address, please e-mail it to us, along with your name and your association, to jkatz@hillwallack.com.