[167 NJSuper Page 519] This action was instituted by a verified complaint and an order to show cause why defendant Tower West Condominium (Tower West) should not be restrained from asserting a lien or imposing other sanctions against the condominium units of those owners who failed to pay their
proportionate share of a special assessment levied by Tower West.
Upon the signing of the order to show cause, temporary restraints were imposed enjoining defendants from asserting or implementing any lien or other sanctions arising out of the nonpayment of the special assessment and from taking any further affirmative action with respect thereto until the return date of the order to show cause. These restraints were thereafter continued by consent orders pending final hearing and further order of the court.
Plaintiffs are owners of apartment units in Tower West located at 6050 Boulevard East, West New York, New Jersey. Tower West is a duly constituted condominium in accordance with the laws of New Jersey, N.J.S.A. 46:8B-1 et seq. Also named as defendant is the Tower West Apartments Association (Association) which was incorporated in the State of New Jersey and created pursuant to an Offering Plan for the condominium dated June 14, 1975. Defendants Claudio Blanco, A. Alfred Landisi, Kenneth W. Thompson, Sergio Finzi, Judith Rackmill, Michael Nevard, David Costa and Renee Denkert are all members of the Association's board of trustees (board) and were elected to their positions by the unit owners as members of the Association.
Plaintiff Warren L. Schnur is also a trustee of the Association. For purposes of this action, he has elected to be designated as party plaintiff due to his opposition to the board's conduct which is the subject of this litigation. J.I. Sopher & Co. is also named as a defendant. This company served as the managing agent for Tower West and was retained by the former ad hoc board.
The majority of the board approved a special assessment of $100,000 to be levied against the unit owners due to the various conditions which in its opinion constituted an emergency within the meaning of § 12(C) of the by-laws. The board acted on authority it believed it had been granted under this section, which reads as follows:
By majority vote of the Board, to adjust or increase the amount of any such assessments, and to levy and collect in addition thereto, special assessments in such amounts as the Board may deem proper, whenever the Board is of the opinion it is necessary to do so in order to meet increased operating or maintenance costs, or additional capital expenses, or because of emergencies.
However, plaintiffs claim that § 12(B) of the by-laws applies. This section provides:
Anything in these By-laws or elsewhere to the contrary notwithstanding, the Board of Trustees shall not have the authority, except in the case of an extreme emergency, without the consent of a majority of all unit owners to expend in excess of $5,000 on any item of expense in any year which is not specified in, or if specified, over the amount indicated for such item, in the aforesaid budget for such year. Such limitation shall not, however, relate to expenses which may be incurred beyond the control of the Association arising from increases of utility or fuel charges attributable to the operation of the premises.
Since no vote of the unit owners was obtained or even solicited as provided in § 12(B), plaintiffs contend that the board's assessment was beyond its authority and is invalid. Plaintiffs maintain that an extreme emergency did not exist and therefore it was necessary to obtain the vote of the unit owners. Plaintiffs seek a final determination as to the validity of the assessment prior to the imposition of a lien or other sanctions on the units of those owners, including most of the plaintiffs, who refused to pay their proportionate share of the special assessment.
Upon a consideration of the evidence adduced at trial, I find the facts to be as follows. The present membership of the board was elected to office in August 1977. Until that time an ad hoc board of trustees, of which plaintiff Schnur was president, functioned as an advisor to the then managing agent, J.I. Sopher & Co. The managing agent was empowered to make decisions concerning the operation of Tower West. The present board, unlike its predecessor, has the power to act in the name of the Association rather than merely in an advisory capacity.
After assuming office the board learned of the Association's serious financial problems which were brought about by several contributing factors. Firstly, unpaid bills for 1976 had been paid from funds allocated for 1977. This depleted the 1977 budget of nearly $60,000 for expenditures made in the previous year, which should have come from that year's budget. Secondly, the Association owed $68,449.01 to vendors and suppliers. It was also indebted to the managing agent, Charles H. Greenthal & Co. (Greenthal) for its services in the sum of $4,500. In addition, the Association owed Greenthal for monies advanced on account of the Association's outstanding bills. Thirdly, the Association owed over $40,000 for fuel and electricity. Of this amount, almost $30,000 was due the Public Service Electric & Gas Company, which had sent a notice warning of discontinuance of service to the Association unless the arrearage was paid. Fourthly, in addition to its financial problems, the building was in dire need of repair. This condition had originally been discovered when Schnur, in his capacity as president of the ad hoc board, and David Costa, as a member of that board, had conducted a thorough survey of the building facilities. Their report revealed that the air conditioning, heating and fire systems needed extensive repair. The estimated cost of this work was about $21,000. A condition which required immediate ...