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McNeill v. Evergreen Court Condominium Association

August 11, 2009

KEVIN J. MCNEILL, PLAINTIFF-APPELLANT,
v.
EVERGREEN COURT CONDOMINIUM ASSOCIATION, INC. DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, SC 2586-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 28, 2009

Before Judges Yannotti and LeWinn.

Plaintiff Kevin J. McNeill appeals from the August 14, 2008 judgment of the Special Civil Part dismissing his complaint against defendant Evergreen Court Condominium Association, Inc. (Evergreen). For the reasons that follow, we affirm.

On May 19, 2008, plaintiff purchased an Evergreen condominium unit from a prior owner. At closing, plaintiff was charged the amount of $513.72 to be paid to Evergreen as his capital contribution. Evergreen's master deed provides, in pertinent part: "Each initial unit purchaser shall pay to the association a non-refundable contribution towards the working capital reserve equal to three months common expense installments."

Plaintiff claimed that, because his purchase was a "'subsequent resale'" and not an "'initial'" purchase, he was not subject to the capital contribution provision in the master deed. When Evergreen declined to refund the $513.72 contribution, plaintiff filed suit in the Special Civil Part. Plaintiff contended that under the Condominium Act, N.J.S.A. 46:8B-1 to -38, Evergreen was not entitled to collect this contribution. Specifically, plaintiff relied upon N.J.S.A. 46:8B-15(e), which provides in pertinent part:

The [condominium] association may levy and collect assessments duly made by the association for a share of common expenses or otherwise, including any other moneys duly owed the association, upon proper notice to the appropriate unit owner . . . if authorized by the master deed or bylaws.

If authorized by the master deed or bylaws, the association may levy and collect a capital contribution, membership fee or other charge upon the initial sale or subsequent resale of a unit, which collection shall be earmarked for the purpose of maintenance of or improvements to common elements to defray common expenses or otherwise . . . .

At trial, plaintiff argued that Evergreen's master deed referred only to "'initial unit purchaser[s]'" and, therefore, as a purchaser pursuant to a "subsequent resale" of a unit, he was not liable for the contribution fee.

Defendant presented the testimony of Phyllis Pasqualetto, a representative of Evergreen's management company responsible for "collect[ing] maintenance fees, pay[ing] their bills and do[ing] all the up front letters to the attorneys for the collections." Pasqualetto stated her understanding of the working capital contribution as follows:

[W]e have been there since, I believe[,] '97 or previous to that, and everybody since then has paid it, and it was interpreted that everybody should pay it by us, as well as the Board of Directors, who[m] we take our direction from.

Pasqualetto stated that Evergreen consists of twenty units, adding: "It's a very small complex and . . . [we] need the money to be able to run the [a]ssociation without . . . hav[ing] to raise maintenance fees all the time."

At the conclusion of the testimony, Judge Menelaos W. Toskos rendered a decision from the bench dismissing ...


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