On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Morris County, Docket No. DC-011532-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Miniman and Fasciale.
Defendant, Wasim Khan, a resident of Mazdabrook Commons condominium community, was sued in the Special Civil Part for failure to pay maintenance fees and fines arising from his planting of a rose bush in his front yard. Khan raised the defense of unclean hands and he counterclaimed, alleging breach of contract and violation of his right to free speech as the result of the Association's prohibition of all window signs in condominium units except for one "For Sale" sign. Following a two-day bench trial, the judge found in Mazdabrook's favor, assessing Khan $3,500, consisting of a $1,500 fine for maintaining an over-height rosebush in June and July 2007, and $2,000 for nonpayment of monthly maintenance fees in March 2007 and in the period from July 2007 through October 2008. Mazdabrook had sought a twenty-percent surcharge in lieu of attorney's fees, which the judge cut to ten percent. The judge dismissed Kahn's counterclaim in its entirety. Kahn has appealed, and Mazdabrook has cross-appealed.
Mazdabrook Commons is a condominium development governed by the provisions of the New Jersey Planned Real Estate Development Full Disclosure Act, N.J.S.A. 45:22A-21 to -56, and the regulations promulgated pursuant to the Act. In its Public Offering Statement, Mazdabrook Developers, LLC, provided in section 11 that, prior to the conveyance of the first unit, it would file a Declaration of Covenants and Restrictions, together with the By-Laws of the Association. It stated further:
The Declaration of Covenants and Restrictions sets forth provisions for the use and enjoyment of all Unit Owners with respect to the Common Facilities. All purchasers shall purchase their Units subject to all of the terms and conditions as set forth in the Declaration of Covenants and Restrictions and exhibits attached thereto.
Further, section 12 provided that:
Unit Owners must comply with the restrictions of the Declaration of Covenants and Restrictions and By-Laws as well as any Rules and Regulations adopted by the Association, all of which relate to the use and occupancy of Units, the right of alienation, and the right of alteration of the Units.
A Summary of Restrictions contained within section 12 included the following:
(b) Nothing may be done or kept in any Unit or in the Common Facilities that will increase the rate of hazard insurance of any Unit or Building.....
(k) No signs are permitted on the exterior or interior of any Unit, except for one "For Sale" sign on the interior of a Unit. Further, the Sponsor shall have the right to place "For Sale" or "For Rent" signs on unsold or unoccupied Units.....
(s) No Unit Owner or occupant may build, plant or maintain any matter or thing upon, in, over or under the Common Facilities without the prior written consent of the Association.
The Declaration of Covenants and Restrictions, appended to the offering as Exhibit A, stated in Article VI(a) that:
Every Unit Owner, by acceptance of a deed or other conveyance for a Unit, whether or not it shall be so expressed in any such deed or other conveyance, shall be deemed to covenant and agree to pay to the Association all assessments and all fines and other charges contemplated herein or in the ByLaws.
Another paragraph of that Article provided for the establishment of annual common expense assessments sufficient to maintain the common facilities. What constituted a common facility and a unit was defined in Article II. A unit was defined in terms of an individual's ownership interest in the condominium unit and the land upon which it stood.
In Article X, entitled "Restrictions," paragraph (a)(vii) provided:
No signs (other than those of Sponsor),... shall be erected or installed in or upon any Building, the Common Facilities or any part thereof without the prior written consent of the Board.
Paragraph (a)(xii) stated:
Nothing shall be done or kept in any Unit... which will increase the rates of insurance of any Building or the contents thereof beyond the rates applicable for the Units without the prior written consent of the Board.
Additionally, paragraph (d), entitled "Fines" provided:
The Board shall have the power to make such Rules and Regulations as may be necessary to carry out the intent of these use restrictions, and shall have the right to bring law suits to enforce the Rules and Regulations so promulgated. If permitted by law, the Covenants Committee or the Board (whichever is applicable) shall further have the right to levy fines for violations of these regulations, provided that the fine for a single violation may not, under any circumstances, exceed $25.00. Each day that a violation continues, after receipt of notice by the Unit Owner, may be considered as a separate violation. Any fine so levied shall by considered as a Common Expense to be levied against the particular Unit Owner involved, and collection may be enforced by the Board in the same manner as the Board is entitled to enforce collection of Common Expenses.
Further regulations were contained in the By-laws of the Mazdabrook Commons Homeowner's Association. The By-laws defined an association member in good standing, stating a member would be such "if, and only if (1) he shall have fully paid all installments due for assessments made or levied against him." Further the By-laws provided: "The Membership and voting rights of any Member may be suspended by the Board for any period during which any type of assessment against the Unit to which his Membership is appurtenant remains unpaid." The By-laws also provided: "Only Unit Owners who hold memberships in good standing at least three (3) days prior to any meeting at which an election is to occur shall be entitled to vote in elections of Trustees." Trusteeship was limited to members in good standing. The powers of the Board of Trustees included the administration of the affairs of the Association and the property; the adoption of rules and regulations covering the use of the common facilities; and the collection of common expense payments.
An additional provision stated:
If permitted by law, the Board, at its option, shall have the right, in connection with the collection of any type of assessment or other charge, to impose a late charge of not more than $25.00 for each delinquent payment, if such payment is received after the applicable due date. In the event that the Board shall effectuate collection of said Assessments or charges by resort to counsel and/or filing of a lien, the Board may add to the aforesaid Assessments or charges a sum or sums of twenty (20) percent of the gross amount due as counsel fees, plus the reasonable costs for preparation, filing and discharge of the lien, in addition to such other costs as may be allowable by law.
A later provision, contained in Article XII, Enforcement, stated:
If permitted by law, the Board shall... have the power to levy fines against any Unit Owner(s) for violation(s) of any Rule or Regulation of the Association... except that no fine may be levied for more than $25.00 for any one violation; provided however, that, for each day a violation continues after notice, (for other than failure to pay an assessment or charge), it shall be considered a separate violation.... Despite the foregoing, before any fine is imposed by the Board, the Unit Owner involved shall be given at least ten (10) days prior written notice, and afforded an opportunity to be heard, with or without counsel, with respect to the violation(s) asserted.
Rules and Regulations of the Homeowner's Association provided additional guidance to unit owners. Those Rules and Regulations prohibited the placement of signs in or on windows, except as provided in the Declaration of Covenants and Restrictions, and prohibited planting in common facilities without the prior written consent of the Association. Significantly, however, the document stated in paragraph 19:
The Association grants its approval and consent to all Unit Owners:
(a) To display or install plants either in containers or in the ground adjacent to their Unit, provided
(i) that all in-ground plants are placed within the existing mulched area and also sufficiently removed from the lawn to allow mowing and maintenance of the grass;
(ii) that all plants in containers and/or in the ground planted by Unit Owners are maintained in good condition by the Unit Owner, including removal of weeds, watering, spraying, etc.
Defendant purchased his unit in 2003. Defendant testified that in 2005, he was nominated for a township office. After seeing election signs in the window of the complex's model unit, he placed his own election poster in a window of his house. After it had been in place for two or three days, defendant received a notice that displaying the poster was prohibited, and he was directed to remove it within three days. Although defendant complied, he stated that he was nonetheless fined. Plaintiff's attorney stated that the fine was $75.
At some point after taking up residence at the complex, defendant planted a climbing rose bush in the mulched area between his front and garage doors. Pictures taken on May 16 and 23, 2006 by Board of Trustees' President Jeffrey S. Mandel depict the bush as having grown to a height taller than the garage entrance. Mandel testified at trial that he was notified by the complex's insurer that the bush constituted a fire hazard.
At trial, counsel for plaintiff introduced, through Mandel, four letters, dated, respectively, May 8, May 19, June 5, and June 15, 2006, advising defendant that he had failed to obtain authorization from the Association for the rose bush, and that it must be removed. Fines of $25 per day were imposed commencing on May 11, 2006. Defendant appealed from the imposition of the fines, and the appeal was heard by the Board of Trustees. However, defendant testified that he never was informed of the results of his appeal, and Mandel could not specifically state how the matter had been resolved. Defendant also testified that, in the later part of 2006, he cut the rose bush to two feet.
The rose bush became an issue again in 2007. On May 29, 2007, the Board of Trustees passed a resolution that stated in relevant part:
No Home Owner or Occupant shall build, place or maintain any matter, thing or structure on the general common facilities which include but are not limited to all landscaped ...