By Michael S. Karpoff, Esq.
A recent decision by the Appellate Division of New Jersey’s Superior Court reminds community association boards and managers to enforce rules in a reasonable manner, with sufficient notice to all residents of the rule, adequate notice of a violation to an offender and, if possible, an opportunity to cure to avoid a sanction, particularly when enforcement will cause damage to an owner or resident. In Bresnowitz v. Espy Road Condo Association, decided June 6th, the court affirmed a judgment against the condominium association for reimbursement of the costs incurred by a unit owner in retrieving her car after the association had it towed for parking in a prohibited space.
It seems that any car parked in a certain parking space near the entrance to the Espy Road Condominium parking lot obstructed large vehicles from entering. To eliminate the problem, and because the association was expecting a delivery of new washing machines, the association board adopted a regulation prohibiting parking in the parking space except by authorized vehicles. Notice of the regulation was placed in all residents’ mailboxes around 4:00 p.m. on April 8, 2010. Plaintiff had parked her car in that space. The washing machines were delivered that evening after the notices were distributed, and the truck had to enter the lot through the exit because of the obstruction. Plaintiff’s car was not towed that night.
Plaintiff claimed she did not check her mail on April 8th and then left on a business trip on April 9th. While she was away, the association’s manager left a message on her telephone answering machine, warning her that if she did not remove her car, it would be towed. The association had her car towed on April 11th. Plaintiff returned home on April 13th and found her car missing. She also found the notice in her mailbox and received the telephone message. She paid the towing company $444.60 for towing and storage to retrieve her car and, when the association refused to reimburse her, sued the association.
The trial court granted judgment in her favor. Upon the association’s appeal, the appellate court affirmed. The court construed language in the association’s by-laws authorizing the association to require that an offending party rectify a violation as meaning that the association was obligated to give the person a written demand to cure the violation before imposing sanctions. The court stated that if there had been an urgency to removing the car, the association should have called plaintiff immediately, on April 8th, not days later. The court concluded that in light of all the circumstances, including the lack of urgency, the association did not provide reasonable notice to plaintiff and also violated the by-laws by not first delivering a notice demanding compliance before acting itself to eliminate the violation.
Associations therefore should make sure they act reasonably in enforcing their rules and provide sufficient notices. Give owners and residents advance notice of new rules before they become effective. Unless a violation creates an emergency situation that must be remedied immediately, provide written notice of an alleged violation so the owner or resident has an opportunity to eliminate it. When an owner does not respond to a notice of a violation, it also may be a good idea to follow up to assure that the owner received the notice, particularly if imposition of the sanction, such as towing, is irreversible. If a matter has some urgency, try more than one avenue of notice such as delivery of the notice directly to the owner together with phone calls. In other words, make reasonable efforts to timely notify the owner of the situation and to provide an opportunity for a prompt resolution before imposing costs.
You can read the Appellate Division’s decision in Bresnowitz v. Espy Road Condo. Ass’n here.
If you have a question about this case or any other issue concerning your community association, please contact one of our Community Associations attorneys.