On appeal from the Superior Court of New Jersey Law Division - Special Civil Part, Somerset County, DC-731-99.
Before Judges Skillman, Wallace and Wells.
The opinion of the court was delivered by: Wells, III.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2001
Plaintiff, The Glen, Section I, Condominium Association (Association), which sued defendant, John H. June, Jr., for $9925, appeals from a judgment of the Law Division, Somerset County, signed September 1, 2000, which found that it owed June $5.80. That part of the same order which directed the Association to remove a lolly column placed directly in front of June's garage on September 1, 2000, or suffer a fine of $500 per day, was not appealed.
The trial judge also dismissed June's counterclaim for $1000 under the Federal Fair Debt Collections Practices Act, 15 U.S.C.A. §§ 1692-1692o, and no appeal has been taken from that determination. June's brief has been suppressed.
The facts, as we glean them from the record, are as follows: Plaintiff is entrusted under the New Jersey Condominium Act (the Act), N.J.S.A. 46:8B-1 to -38, with the maintenance of common areas (common elements) of the condominium complex in which the Association members own units. N.J.S.A. 46:8B-14. The Association is managed by a board of directors elected from among the unit owners. N.J.S.A. 46:8B-12.1. The directors had engaged Oldwick Community Resources, Inc. (Oldwick) as the professional property manager to run the condominium day-to-day. June, a member of the Association by virtue of his ownership of a unit, ceased paying his assessments in 1996 as the result of financial difficulties which culminated in his filing a bankruptcy petition on March 11, 1997. Because of June's alleged uncertainty as to his obligation to pay following his bankruptcy, he continued not to pay any assessments from April 1997 to November 1998. The monthly assessment for common area maintenance from April 1997 through December 1997 was $130. That assessment increased to $140 per month beginning in January 1998. June's pre-April 1997 obligation was ultimately discharged in bankruptcy.
On September 29, 1998, Oldwick at the behest of the directors wrote June a letter which recited his history of non-payment and prohibited June from the use of "any portion of the common elements for the purpose of parking, driving or storing any vehicle owned by you." The letter threatened the installation of "a four (4) inch lolly column immediately behind the garage serving your unit." The letter demanded immediate payment of the unpaid assessments. Oldwick wrote June again in October 1998. It sent a detailed account of the amount due and stated that while June's bankruptcy petition filed in March 1997 "wiped out" his obligation to the Association prior to that date, assessments accruing since then remained due and owing.*fn1 At the end of October 1998, June made two payments, one for $750 and one for $140. In January 1999, Oldwick wrote June a third time. It acknowledged the receipt of the two payments and suggested that June pay $750 monthly to liquidate the accrued balance plus the regular monthly payment. It stated the "lolly column installation will take place."
According to Oldwick's president, Bielenica, the lolly column was installed in January 1999. He stated that the opinion of the directors was "to try to get Mr. June to settle this matter a long time ago." He testified that it remained there to the time of trial in August 2000. Bielencia also identified photographs of snow being piled up in June's driveway but denied that either he or the directors had so ordered. In March 1999, the Association filed its complaint to recover the unpaid assessments, late fees, interest and counsel fees accrued to that time, and reserved the right to seek such assessments accruing to the date of trial. The Association introduced evidence at trial to show that for the period from December 2, 1998 to August 18, 2000, the trial date, June owed unpaid assessments of $2245, late fees of $340, fines of $110 and counsel fees and costs of $7230.51 for a total of $9,925.51.
The court determined June's obligation to the Association as follows:
1997 - 9 months (April to December) @ $130. $1170.00
1998 - 9 months (January to September) @ $140. $1260.00
Total Assessments $2430.00