under New Jersey law, the Court denies the Association's motion for summary judgment.
The Condominium Act grants condominium associations certain powers and imposes upon them certain duties. Several of these powers and duties are relevant to the scope of the Association's duty to Mr. Gittleman in this case.
Condominiums are administered and managed by condominium associations, such as the Association in this case. N.J.S.A. § 46:8B-3(b); Siller v. Hartz Mountain Ass'n, 93 N.J. 370, 375, 461 A.2d 568 (1983). The unit owners elect the members of the association to perform these administrative and managerial tasks. Siller, 93 N.J. at 375-76.
The New Jersey legislature gave condominium associations the power to enter into contracts, bring suit and be sued. N.J.S.A. § 46:8B-15(a).
Furthermore, the Association is charged with a duty to adopt, distribute, amend and enforce "rules governing the use and operation of the condominium and the condominium property and the use of the common elements . . . subject to the right of a majority of unit owners to change any such rules." N.J.S.A. 46:8B-14(c). The association also has the power to "lease or license the use of the common elements in a manner not inconsistent with the rights of unit owners." N.J.S.A. 46:8B-15(c). The association is also obligated to purchase casualty and liability insurance covering all the common elements of the condominium. N.J.S.A. 46:8B-14(c) & (d).
The Condominium Act places the duty of enforcing the Condominium's By-Laws and Master Deed upon the Association. N.J.S.A. 46:8B-14(c)(association shall be responsible for "the adoption, distribution, amendment and enforcement of rules governing the use and operation of the condominium and the condominium property and use of the common elements, including but not limited to the imposition of reasonable fines, assessments and late fees upon unit owners, if authorized by the master deed"). The very act of enforcing the Master Deed's exclusive parking provision, insofar as such enforcement results in a denial of a handicapped unit owner's FHAA rights, subjects the Association to liability under the FHAA. See Martin, 843 F. Supp. at 1326 (private citizens' act of enforcing restrictive covenant to deny plaintiff's FHAA rights subjected them to liability under FHAA); 24 C.F.R. § 100.80(b)(3)(unlawful to "enforce covenants or other deed, trust or lease provisions" that violate FHAA).
In addition to the duty to avoid enforcing discriminatory provisions of the Master Deed, the Court concludes that under New Jersey law, the Association is charged with an affirmative duty to ensure that the Condominium's common elements are managed so as to comply with federal housing law.
In enacting the Condominium Act, the New Jersey legislature created a new form of property ownership. Id. ("the Legislature recognized a new form of ownership of real property in enacting the Condominium Act").
A unit owner does not exercise complete dominion over his or her undivided share; rather, the unit owner's property right in the common elements is conditioned by the right of the association to administer and manage the common elements. N.J.S.A. 46:8B-3 (b); Thanasoulis v. Winston Towers 200 Ass'n, 110 N.J. 650, 656-57, 542 A.2d 900 (1988)("The most significant responsibility of an association is the management and maintenance of the common areas of the condominium complex"). Concomitant with its authority to administer and manage is the power to promulgate rules and regulations governing the use and enjoyment of the common elements. N.J.S.A. 46:8B-14(c). The Association's managerial power extends to aspects of dominion traditionally associated with ownership, such as the ability to lease or license use of the condominium's common elements, to purchase insurance covering risks incidental to the use of the common elements, and to sue third parties for damages to the common elements. Moreover, N.J.S.A. 46:8B-14(c) obligates the Association to adopt rules and regulations governing use of the common elements. That this exercise of power may then be overridden by the vote of a majority of owners does not erase the fact that the initial power to regulate use of the common elements is vested with the Association. See Winston Towers, 110 N.J. at 660-61 ("Concededly, defendant can establish reasonable rules and regulations concerning the size of the [parking] spaces, speed limits in the garage, and other rules necessary to maintain order and safety in the area").
The Condominium Act thus establishes a statutory scheme empowering the Association to manage the common elements and imposes a duty on the Association to promulgate rules and regulations in furtherance of this managerial authority. The Association, in its capacity as manager of the common elements, clearly has a duty to exercise its managerial discretion in a manner consistent with the dictates of the FHAA. In the case of a unit owner with a handicap, that would mean assigning a parking spot close to his or her home.
The Association's reliance on N.J.S.A. 46:8B-6 for a contrary result does not bear scrutiny. This section of the Condominium Act provides, in pertinent part, that the "rights of any unit owner to the use of the common elements shall be a right in common with all other unit owners (except to the extent that the master deed provides for limited common elements) to use such common elements in accordance with the reasonable purposes for which they are intended without encroaching on the lawful rights of the other unit owners." This section cannot be read to prohibit the Association from accommodating Mr. Gittleman's alleged disability, because that would result in the other unit owners encroaching on Mr. Gittleman's rights under federal law, a result the statute expressly forbids. Furthermore, to the extent that this provision can be read to compel the Association to violate Mr. Gittleman's FHAA rights, it is invalid. 42 U.S.C. § 3615 ("any law of a State, a political subdivision, or other such jurisdiction that purports to require or permit any action that would be a discriminatory housing practice under this title shall to that extent be invalid").
2. The Condominium's By-Laws and Master Deed
The Court's conclusion that the Association is empowered to regulate use of the common elements to comply with the FHAA is also supported by the language of the Master Deed and the Condominium's By-Laws.
Section 4 of the Condominium's By-Laws states:
Each Unit owner who is entitled to membership in the Association pursuant to these By Laws shall be privileged to use and enjoy the Common Elements subject to the right of the Association to promulgate rules and regulations governing such use and enjoyment.
(By-Laws of Woodhaven Condominium Association, Inc., attached as Ex. B to Defendant's Moving Brief)(emphasis added).
The gravamen of Mr. Gittleman's Complaint is that the Association failed to promulgate appropriate rules so that he could enjoy equal privileges in the use of the Condominium's common elements. The very terms of the By-Laws empower the Association to make rules and regulations governing the use and enjoyment of the common elements. (Association By-Laws Section 4). The Association's failure to promulgate appropriate rules despite its apparent ability to do so is precisely the type of conduct regulated by the FHAA. See 42 U.S.C. § 3604(f)(3)(B) (discrimination includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling") (emphasis added); see also 24 C.F.R. § 100.204(b)("Without a reserved space, John might be unable to live in Progress Gardens at all or, when he has to park in a space far from his unit, might have difficulty getting from his car to his apartment unit. The accommodation therefore is necessary to afford John an equal opportunity to use and enjoy a dwelling. The accommodation is reasonable because it is feasible and practical under the circumstances.").
The language of the By-Laws indicates that the Association was empowered to promulgate rules regulating the parking spaces so as to accommodate Mr. Gittleman's alleged handicap. Accordingly, the Court denies the Association's motion for summary judgment on this basis.
3. The Association's Standing to be Sued
Finally, the fact that, under New Jersey law, the Association is given statutory standing to sue and be sued supports the Court's conclusion that the Association is the proper party to sue in the alleged circumstances of this case.
In Siller v. Hartz Mountain Ass'n, 93 N.J. 370, 461 A.2d 568 (1983), the New Jersey Supreme Court held that a condominium association had exclusive standing to sue third parties for damages to the common elements. Siller, 93 N.J. at 377; see also Annotation, Standing to Bring Action Relating to real Property of Condominium, 74 ALR 4th 165 (1989 & 1996 supp.)(discussing similar rules in other jurisdictions). The Supreme Court reasoned that the "clear import, express and implied" of the Condominium Act is that the association has standing to act on behalf of the unit owners in litigation affecting the common elements. Siller, 93 N.J. at 377-78 ("The statutory provisions empowering the association to use, imposing the duty on it to repair, and authorizing it to charge and collect 'common expenses,' coupled with the prohibition against a unit owner performing any such work on common elements, are compelling indicia that the association may institute legal action on behalf of the unit owners for damages to common elements caused by third persons.")(internal footnotes omitted).
The clear import of the Condominium Act is that the Association may be sued for its failure to administer or manage the common elements in a lawful manner and for its acts in enforcing discriminatory provisions of the Master Deed or By-Laws. The statutory provisions providing: (1) that the Association may be sued, N.J.S.A. 46:8B-15(a); (2) that the Association is obligated to adopt, amend and enforce rules governing the use of the Condominium's common elements, N.J.S.A. 46:8B-14(c); and (3) that the Association is elected by the unit owners to manage the common elements, N.J.S.A. 46:8B-12.1
, compel the conclusion that the Association is a proper Defendant in this action to enforce Mr. Gittleman's federal rights.
If the Court were to accept the Association's reading of the Condominium Act, a handicapped person in need of accommodation would have no remedy for a violation of his federally-secured rights. Such a result is unacceptable in light of the obvious intent of the FHAA to eradicate discrimination against, among others, the handicapped. See Shapiro, 844 F. Supp. at 122; see also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L. Ed. 60 (1803)("The government of the United states has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.").
Therefore, the Court declines to read the Condominium Act, the Association's By-Laws or its Master Deed as prohibiting the Association from ensuring that the use of the Condominium's common elements complies with federal housing law.
Nearly fifty years ago, the Supreme Court of the United States held that judicial enforcement of racially-discriminatory restrictive covenants is forbidden by the Equal Protection Clause of the Constitution. Shelley v. Kraemer, 334 U.S. 1, 92 L. Ed. 1161, 68 S. Ct. 836 (1948). In so holding, the Supreme Court made clear that discriminatory practices effectuated by private agreements could not, consistent with the Fourteenth Amendment, be enforced judicially.
The Supreme Court's holding is no less relevant today than it was fifty years ago. As forms of land ownership evolve, the judiciary must adopt its rules of law accordingly. To accept the Association's argument that it is powerless to regulate the common elements of the Condominium in accordance with the dictates of federal anti-discrimination law would exempt a large (and growing) segment of the housing market from the reach of the FHAA and other remedial statutes. This is a result that cannot be tolerated.
As condominium associations assume more of the powers traditionally associated with the state, see Hearings, Assembly Task Force to Study Homeowner Associations, Public Meeting, 11-21-95 (discussing amendments to Condominium Act, including provisions empowering associations to levy fines for failure to comply with by-laws (N.J.S.A. 46:8B-14 (c)), it is only fair that they assume more of the obligations for ensuring that the rights of the unit owners they represent are protected.
For these reasons, as well as the ones stated above in this Opinion, the Association's motion for summary judgment is denied.
An appropriate Order follows.
Dated: August 12, 1997
WILLIAM G. BASSLER, U.S.D.J.
This matter having come before the Court on the motion of Defendant, the Woodhaven Condominium Association, Inc.'s (the "Association") motion for summary judgment dismissing Plaintiff's Complaint; and
The Court having considered the submissions of counsel for the Defendant; and
The Court having decided this matter pursuant to Fed. R. Civ. P. 78; and
For good cause shown;
IT IS on this 12th day of August, 1997, ORDERED that Defendants' motion for summary judgment is denied.
WILLIAM G. BASSLER, U.S.D.J.