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Doris Bresnowitz v. Espy Road Condo Association

June 6, 2012

DORIS BRESNOWITZ, PLAINTIFF-RESPONDENT,
v.
ESPY ROAD CONDO ASSOCIATION, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SC-1186-11.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 30, 2012

Before Judges Parrillo and Grall.

Defendant Espy Road Condo Association (Association) appeals from a judgment in favor of plaintiff Doris Bresnowitz following a bench trial in the Small Claims Division of the Special Civil Part. Plaintiff owns one of the forty-one units in this Association. She has not participated in this appeal.

Plaintiff alleged that the Association had her vehicle towed because it was parked in violation of a new regulation that the Association enforced without reasonable notice. One of her two cars was towed from the newly restricted parking space on a Sunday, while she was away on business. She sought reimbursement for a $444.60 towing and storage fee and $75 she paid an attorney to write a letter to the Association. Following a bench trial, the judge determined that the Association did not give adequate notice and awarded plaintiff judgment in the amount of the fee plus court costs.

The Association's operations are governed by its master deed, bylaws and the Condominium Act, N.J.S.A. 46:8B-1 to -38. The bylaws require members and their tenants to comply with the rules and regulations adopted pursuant to them. The bylaws give the Board authority to "adopt rules and regulations, with written notice thereof to all Unit owners, governing . . . use of the property and the Common Elements, and to amend such rules and regulations from time to time[.]" Parking areas are one of the "common elements," and the bylaws give the Association "the right but not the obligation to assign and control all parking spaces as the Board deems necessary."

The Condominium Act also addresses rules and regulations governing common elements of an association's property.

Pursuant to N.J.S.A. 46:8B-14(c), an association, acting through its governing board, may adopt, distribute, amend and enforce rules governing the use and operation of common elements. In addition, the statute permits an association to impose reasonable fines, assessments and late fees if they are authorized by the master deed or bylaws. Ibid.

In this case, the Association's bylaws give the Board limited authority to enforce the obligations of the Association's members. The pertinent section provides:

To enforce obligations of the members to do anything and everything necessary and proper for the sound management of the Condominium including the right to send notice to the offending party demanding certain acts to be undertaken, restoring the Condominium's property to its original position and charging the breaching party with the entire cost or any part thereof, and levying fines against members for violations of any of the rules and regulations. Such fines may be levied for not more than $10.00 for any one violation, but each day a violation continues after notice, it shall be considered a separate violation. Collection of a fine may be enforced against the Unit Owner involved as if the fine were a Common Expense owed by the particular owner.

Neither the bylaws nor the Act specify how the Board must give written notice of a new or revised rule or regulation. Although the Board had not assigned or restricted any parking spot prior to the adoption of this parking regulation, plaintiff was one of two residents who regularly parked in the newly restricted space. The other resident affected by the adoption of this rule was the spouse of a Board member.

The parking space at issue is positioned near the entrance to the lot, and when a car is parked there large trucks cannot enter. The regulation was adopted at a time when the Association was expecting a delivery of new washers for the laundry room, a common element, and the installation of "FIOS by Verizon."

The notice of the new parking regulation was printed on a single piece of paper. An employee of the Association's management company folded copies and placed one in the mailbox for each unit at ...


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