Rimm, J.t.c. (temporarily assigned).
This matter involves the enforceability of a provision in a condominium master deed relating to alterations to a condominium unit. Plaintiff, The Courts at Beachgate, a condominium association, (Beachgate) seeks a judgment against defendants, David H. Bird, IV, and Carol Bird, the owners of unit C-107, requiring them to remove and replace certain windows installed in the unit. There are no officially reported opinions in New Jersey dealing with the issue.*fn1
Unit C-107 is part of The Courts at Beachgate, a condominium project established by a master deed in 1970. The project consists of various units in a number of garden-type apartment buildings. The master deed established the Association of Owners of The Courts at Beachgate. Among other things, the master deed contains the following provision:
FOURTEENTH: That each owner shall comply with the provisions of this Deed, the By-Laws, decisions and resolutions of the Association of Owners or its representative, rules and regulations, and the Regulatory Agreement, as
lawfully amended from time to time, and failure to comply with any such provisions, decisions or resolutions, rules and regulations shall be grounds for an action to recover sums due, for damages, or for injunctive relief.
Article VIII, Section 3.(b), Obligations of the Owners, of the By-Laws of Beachgate provides as follows:
An owner shall not make structural modifications or alterations within his unit or installations located therein without previously notifying the Association in writing, through the management agent, if any, or through the President of the Board of Directors, if no management agent is employed, and obtaining the approval of the Association. The Association shall have the obligation to answer within thirty days and failure to do so within the stipulated time shall mean that there is no objection to the proposed modification or alteration.
The by-laws constitute exhibit B to the master deed. In New Jersey, a condominium unit owner's rights are both protected and limited by the master deed and the by-laws incorporated in it. "Condominium Act," N.J.S.A. 46:8B-1 et seq. (the act), specifically N.J.S.A. 46:8B-3(m) and 9(i).
Unit C-107 had been owned by Lillian E. Bird, the mother of defendant, David S. Bird, IV. While she owned the unit, she had the existing windows removed and replaced with white vinyl replacement windows. The work was completed on April 20, 1984. Mrs. Bird died on July 18, 1984, and title to unit C-107 ultimately vested in defendants in 1985.
Plaintiff's evidence showed that the windows in the condominium complex are milled aluminum slotted-type windows whereas the windows in defendants' unit are double-hung white vinyl windows. The president of the board of directors, who became a member of the board on October 14, 1984, testified that the board became aware of windows of a different type, material and color in defendants' unit in October or November, 1984. Prior to that time Beachgate had received neither a written notification of intent to replace the existing windows in unit C-107 nor any request, oral or written, for permission to replace the windows. The witness also testified that a request from another unit owner to replace windows had been denied by Beachgate because of safety considerations. He also testified that there had been other requests for permission to make changes in units. Among them were a request to install a
fireplace which had been denied and a request to change electrical service which had been approved with conditions. Finally, the witness testified that, in deciding to seek injunctive relief against defendants, after requesting them to replace the windows, the board of directors of Beachgate was concerned about the following items:
1. The vinyl windows were a safety hazard in the event of fire because of distortion and fumes.
2. Double hung windows presented an escape problem in the event of fire as compared with the ...