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Villas at Poplar Brook Condominium Association, Inc. v. Ustun

July 30, 2009

VILLAS AT POPLAR BROOK CONDOMINIUM ASSOCIATION, INC., PLAINTIFF-APPELLANT,
v.
AYDIN USTUN, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. F-24199-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 8, 2008

Before Judges R. B. Coleman and Simonelli.

Plaintiff, Villas at Poplar Brook Condominium Association, Inc., (the Association), appeals from an order of the Chancery Division, Monmouth County, dated March 24, 2008, to the extent that order denied the Association's motion for an award of counsel fees. The order granted other affirmative relief sought by the Association in that it directed defendant to pay moneys to the Association, calculated in accordance with a formula set forth on the record on March 19, 2008. That included maintenance fees, special assessments and late fees from June 2005 through April 2008, all of which defendant agreed to pay. The Association, nevertheless, appeals from the denial of its request for reimbursement of counsel fees, contending that it is entitled to such counsel fees as a matter of law. Defendant has not cross-appealed.

Having carefully considered the arguments raised by the Association and the applicable law, we affirm the order, substantially for the reasons given by Judge Thomas W. Cavanagh, Jr., in his oral opinion of March 19, 2008, and in his supplemental letter of June 12, 2008, filed pursuant to Rule 2:5-1(b).

The facts which gave rise to the cross-motions of the parties are not in dispute. Defendant Aydin Ustun, a resident of Turkey, owns a condominium unit in the Villas at Poplar Brook in Ocean Township, where the Association is responsible for maintenance. Pursuant to Section G of the Master Deed, the Association is:

[V]ested with the rights, powers, privileges and duties necessary to or incidental to the proper administration and management of the CONDOMINIUM including but not limited to the conduct of all activities of common interest to the Unit owners, the same being more particularly set forth in the Bylaws of the ASSOCIATION.

The initial Master Deed, further provides in Section A, Paragraph 12, that "all charges, expenses and assessments chargeable to any Unit shall constitute a lien against said Unit in favor of the ASSOCIATION . . . ." Paragraph 12 further provides, in pertinent part, as follows:

In the event that the assessment, charge or other expense giving rise to said lien remains unpaid for more than ten (10) days after the same shall become due and payable, a $10.00 late charge shall be levied against the Unit, and in the event that the assessment, charge or other expenses giving rise to said lien remains unpaid for more than thirty (30) days after the same shall become due and payable, the lien may be foreclosed by the ASSOCIATION in the manner provided for the foreclosure and sale of real estate mortgages, and, in the event of foreclosure, the ASSOCIATION shall, in addition to the amount due, be entitled to recover reasonable expenses of the action, including costs and attorneys' fees.

In December 2004, water damage occurred in defendant's unit, which was unoccupied at the time. In January 2005, the Association contracted to have the unit repaired, and in March 2005, the Association assessed defendant's account in the amount of $3,346.73 for the cost of repair. Defendant paid the full amount. Following such payment, defendant's account reflected a positive balance of $101.11 though June 2005. Nevertheless, in May 2005, the Association assessed defendant an additional $1,088.25 for legal fees allegedly incurred in connection with its efforts to collect the costs and expenses incurred in the repair of the water damage to defendant's unit.

Defendant disputed the amount sought for legal fees and in response to the assessment, he stopped paying his monthly maintenance fees as of June 2005. Prior to that time, defendant had paid his monthly maintenance fees and all other Association assessments in a timely manner, sometimes up to six months or a year in advance.

Defendant's non-payment of the monthly maintenance fees prompted the Association to file a foreclosure complaint, which defendant contested. On October 26, 2007, the Association filed its motion for summary judgment and thereafter, defendant, acting pro se, filed his notice of cross-motion for summary judgment. The cross-motions were argued before Judge Cavanaugh on March 19, 2008.*fn1 At the oral argument, defendant acknowledged that he was responsible for the monthly maintenance fees, for delinquent fees and for late fees, and he confirmed that he was willing to pay those items immediately. On the other hand, he continued to contest any responsibility for reimbursement of legal fees related to the collection of the cost of repairing water damage in his unit.

The court agreed with defendant's position, observing at one point that the owner ha[d] a bill posted to his account in March of '05, and by April of '05, he's cleared up that balance, and he's actually ahead of the game, according to the occupant ledger document. So, from what he understands, he's back -- he's pretty much done what ...


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