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Breakwater Cove Condominium Association v. Mary Chin

December 2, 2010

BREAKWATER COVE CONDOMINIUM ASSOCIATION, PLAINTIFF-RESPONDENT,
v.
MARY CHIN, ESTATE OF MARY CHIN, JIM CHIN AND
LYNN SURGALLA-CHIN, DEFENDANTS-APPELLANTS.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2995-08.

The opinion of the court was delivered by: Miniman, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: June 9, 2010 -- Decided: Before Judges Payne and C.L. Miniman.

The opinion of the court was delivered by MINIMAN, J.A.D.

Defendants Jim Chin (Jim), individually and under a January 12, 2006, power of attorney from Mary Chin (Mary), and Lynn Surgalla-Chin (Lynn) appeal from a summary judgment declaring them in violation of condominium restrictions on harboring birds, compelling them to permanently remove the birds, ordering them to pay fines of $5330, and compelling them to pay attorneys' fees and costs in the amount of $32,007.91. Because the restrictive covenant permits "household pets," and because that term is commonly understood to include birds, we reverse.

I.

The Sponsor of Breakwater Cove, A Condominium (Breakwater Cove), established Breakwater Cove by a Master Deed recorded on December 30, 1980, and also established plaintiff Breakwater Cove Condominium Association (the Association). The Association's Bylaws were recorded with the Master Deed. Breakwater Cove is a residential condominium complex located in Monmouth Beach. There are five residential buildings in which there are a total of eighty-two individual dwelling units plus common elements. Title to each condominium unit is taken subject to the restrictive covenants contained in the Master Deed. The Master Deed is enforced by the Board of Directors (the Board) of the Association.

Benjamin D. Lambert, Jr., Esquire, prepared the Master Deed. As is commonly done with condominiums, the Master Deed contained covenants, restrictions, and easements limiting the uses to which individual unit owners could put their units and the common elements. The restrictions are contained in paragraph 11, which contains twenty-five subparagraphs. The restriction primarily at issue here is paragraph 11(c), which provides:

No bird, reptile, or animal of any kind shall be raised, bred, or kept in any Unit or anywhere else upon the Property except that dogs, cats or other household pets are permitted, not to exceed two in the aggregate, provided that they are not kept, bred or maintained for any commercial purpose, are housed within the Unit and abide by all applicable Rules and Regulations. No outside dog pens, runs or yards shall be permitted.

Additionally, Article V of the Association's Bylaws authorizes the Board to adopt regulations for "pet controls." The Master Deed further prohibits conduct that constitutes a nuisance, providing in paragraph 11(n) that "[n]o noxious or offensive activities shall be carried on . . . which may be or become an annoyance or nuisance to the other residents in [Breakwater Cove]." Owners who violate the restrictive covenants are subject to fines not to exceed ten dollars per day for a single violation.

Mary, now deceased, acquired title to a condominium unit at Breakwater Cove in 1993. Mary's son Jim, his wife Lynn, and their son Brian lived with Mary prior to her death and are the current occupants of the unit. Since 2004, defendants have kept an African grey parrot named Polly in the unit. They also have another bird named Kelvin, which they acquired after 2004.

On October 12, 2005, the property manager for Breakwater Cove, Ernest B. Racz, wrote to Mary asserting that she was in violation of paragraphs 11(c) and 11(n) by keeping a bird in the unit and permitting it to chatter and whistle to the annoyance of other residents. Mary was given two weeks to remove the bird or the Board would begin fining her $10 per day. Racz again wrote to Mary on November 18, 2005, noting that the violation had not been corrected as of November 7, 2005. As of that day, fines were being assessed against her unit at the rate of $10 per day. He advised that when the fines totaled $300, the Board would instruct the Association's attorneys to file a lien on her unit.

On January 18, 2006, Mabel Iazicki, manager, wrote to Mary advising her that, if the Board did not hear from her within fourteen days, it would instruct its attorney to file the lien. On June 20, 2006, the Association's attorney wrote to Mary regarding her pet bird, which was "disturbing neighboring unit owners," and asked that she contact him.

On April 3, 2008, Thomas V. Giaimo, Esquire, counsel to the Association, wrote to Mary informing her that the Association continued to receive complaints from other unit owners about her bird, which he described as a "nuisance." Relying on paragraphs 11(c) and 11(n), he demanded removal of the bird within fourteen days. If there was no compliance, the Association would avail itself of the remedies allowed by paragraph 15 of the Master Deed, including a petition for injunctive relief. He notified her that the Board proposed to suspend her membership ...


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