Welcome our new attorney

We are proud to welcome JENNIFER L. WEBB, as an associate attorney in our Cherry Hill offices. She focuses her practice on the representation of condominium and community associations. She advises the firm’s clients on matters including the collection of delinquent assessments and related charges, daily operations, the creation and enforcement of restrictive covenants and regulations, and fair housing compliance.

Ms. Webb has been practicing law in New Jersey and Pennsylvania for over 8 years. She graduated from The College of New Jersey, magna cum laude and received her Juris Doctorate from Rutgers University in Camden. She was born and raised in Burlington and currently resides in Springfield Township with her husband and children. She can be reached at jwebb@sgglawfirm.com.



Snow and ice removal: Important new court opinion for condo and community associations

The New Jersey Supreme Court has recently determined that condominium associations are not immune from claims alleging injuries that occurred on private sidewalks which comprise part of the association’s common property.  In Qian v. Toll Brothers Inc., a resident of a condominium association (who was not the record owner of the unit) alleged injury following a slip and fall on the ice on the association-owned sidewalk. The resident filed a lawsuit against the condo association, the developer, the management company, and the contractor responsible for snow and ice removal. In finding that the condo association is not immune from such lawsuits, the Supreme Court focused on who owned and controlled the sidewalk rather than who used the sidewalk. By doing so, the Supreme Court distinguished the facts in Qian from its 2011 decision in Luchejko v. City of Hoboken, which held that condo associations were not liable for  injuries sustained on a public sidewalk adjacent to the Association. Unlike the association in Luchejko, the condo association in Qian owned the sidewalk in question and was responsible to maintain the common property in accordance with its governing documents and the NJ Condominium Act.

Ultimately, the Qian holding confirms that condominium associations have the duty to maintain their common elements, including but not limited to sidewalks, in a reasonably safe condition. If the common elements are not reasonably maintained, the association may be liable for any injuries sustained. While this case involved a condominium association, it is likely that such a holding would also apply to a non-condominium community association charged with the responsibility to maintain its common area in a reasonably safe condition.

Importantly, one issue the Supreme Court in Qian did not address was whether the tort immunity provision contained in the condo association’s governing documents protected the association in that case because the plaintiff was only a resident of the community, not an owner (the record owner was the plaintiff’s son). The tort immunity provision as set forth in N.J.S.A. 2A:62A-13 was designed and worded to protect common interest community associations (including condo associations) against personal injury lawsuits by unit owners.  So, the Supreme Court in Qian left unanswered the question of whether it also protects the association from personal injury claims by a resident who doesn’t own the unit. This issue was remanded for further exploration by the trial court.

If you have any questions concerning this case, including your association’s duty to maintain the common elements and whether your association’s governing documents contain (or should contain) the tort immunity provision, please contact any of the lawyers at Shivers, Gosnay & Greatrex.


Association’s rule banning election leafletting ruled unconstitutional

The New Jersey Supreme Court recently held that a rule imposed by the Board of Directors of a NJ cooperative apartment building that prohibited its members from distributing election leaflets in the building violated the free speech guarantee in the New Jersey State Constitution (see Dublirer v. 2000 Linwood Avenue Owners, Inc. published December 3 2014). Mr. Dublirer, a resident of the co-op, was interested in running for the Board in an upcoming election and asked the Board for permission to distribute campaign materials in the building. The Board, citing a “house rule” that barred soliciting and distributing any written materials, denied his request, claiming that the rule’s purposes were to preserve the residents’ quiet enjoyment of their apartments and to cut down on litter in the building. The resident sued the Association, and the matter was litigated up to the NJ Supreme Court, where the court found that the resident’s message was akin to political speech and thus entitled to the highest level of protection in our society. Citing to its prior well known free speech decisions in the HOA context, the Twin Rivers and Mazdabrook opinions, the Court determined that while an HOA board can adopt and enforce restrictions that are reasonable as to time, place and manner, in this case the ban on the member’s right to disseminate his election materials to his neighbors in the building was unreasonable. In short, the member’s right to free speech in this matter was found to outweigh the Board’s concerns about the use of the apartment building.

So, the lesson learned for HOA boards in New Jersey is to ensure the rules and regulations of the Association are reasonable as to time, place and manner, particularly when they apply to free speech issues (such as political signs, leaflets and speeches).


Having now survived one of the worst winter seasons on record here in New Jersey, with many condominium and homeowners associations’ snow removal budgets well-exceeded, the question now faced by many association governing bodies is:  “How will we pay these bills?”

Homeowner associations in New Jersey have available to them various ways to generate revenue to pay their bills, the main one of course is the ability to impose and collect annual common expense assessments from their members.  Traditionally, association operating budgets are developed in the Fall based on what the association’s expenses are reasonably anticipated to be for the upcoming fiscal year, and then implemented on the first of that year.  Not many association boards in New Jersey accurately projected what their upcoming snow removal costs were going to be for 2014, thus creating budget deficits of varying degrees.  Some associations experienced minor budget deficits that could be covered by other under-budget line items or “snowy day” funds.  But many others were so over budget that there existed the danger of not being able to pay its bills going forward, so those boards were required to impose further assessments against their members on an emergent basis.

But are those further assessments considered “special assessments” or “added assessments”?  There is a BIG difference.  Most sets of association governing documents (Master Deed, Declaration of Covenants, or By-laws) authorize an association governing board to adjust or increase the amount of the annual assessments, during the fiscal year, whenever the Board is of the opinion it is necessary to do so in order to meet unanticipated increased operating or maintenance costs, or financial emergency. This is traditionally called an “added assessment”, and as such does not require the voting approval of the membership of the association.  Likewise, most sets of association governing documents provide for the imposition of a “special assessment” upon the members, which traditionally is used to defray, in whole or in part, the cost of any reconstruction, unexpected repair or replacement of an existing common element not determined by the Board to constitute an emergency or immediate need and for which funds in reserve are inadequate.  Importantly, most governing documents also provide that if this special assessment is greater than a certain percentage of the common expense assessment in the last annual budget, or if it is greater than a specific threshold sum, then the Board must first obtain the voting approval of the entire membership, usually a super-majority, before such an assessment can be imposed.

It is important for association boards, and the members of their associations, to understand the difference between these types of assessments and how they are defined in their governing documents.  Of course, it is always a good idea to seek the advice of the association’s professionals (lawyers, accountants and managers) before imposing any added or special assessment.

Ice damming

Ice damming is a natural phenomenon that occurs in all types of residential housing and commercial buildings, whether in a common interest ownership community like condominiums, or in stand alone structures. Ice dams usually occur after a heavy snowfall and several days of freezing temperatures. Warm air inside the building leaks into the attic and will warm the underside of the roof causing snow and ice on the roof to melt. The melted water will drain along the roof, under the snow, until it reaches the cold overhang or gutter. The overhang tends to be at the same temperature as the outdoors and the melted water will refreeze and form an ice dam and icicles. The ice dam can cause damage to the roof, which can result in water leaks to the inside. Frequently the result will be a water spot on the ceiling under the roof damage. Water from melting ice and snow can also infiltrate inside in other ways, through windows, cracks in the siding/sheathing, and other open spaces. In some circumstances, the problem belongs solely to the owner of the residence.

However, when it occurs in condominium buildings, it becomes an issue for the condominium association (which usually owns and is responsible to maintain the commons elements, such as the roofs, the gutters, the attic spaces, and the siding) as well as for the owner of the condominium unit (who owns from the perimeter walls of the unit inward). As with any situation involving water infiltration from the common elements into a condo unit, the association has the obligation to address the source of the infiltration and stop the leak, while it remains the responsibility of the unit owner to repair the water damage which occurs inside the unit (*see also below). This analysis is complicated by the fact that many condo associations have insurance policies which cover all damage to the property, even damage that occurs inside a unit, over and above the applicable deductible. So, if the damage to the inside of the unit exceeds the association’s insurance deductible, the insurance covers the overage, while the unit owner is responsible for the amount of the deductible (via their own homeowners – HO6 – coverage, or out of pocket). If the damage is less than the association’s deductible, the unit owner is solely responsible for the cost of repairing the damage.

As for what an association can do to prevent ice damming from occurring, or remediate it once it has occurred, there are various products and techniques advertised in the marketplace (simply search online for “ice damming solutions”). Some are likely more effective than others. Whether it is “reasonable” for an association to purchase and implement these products and techniques (that is, required by the association’s duty to maintain the common elements) involves a cost/benefit analysis by each association based on their financial situation, the construction of their buildings, and the frequency and severity of the problem. If a complaint is received from a unit owner that water is infiltrating his/her unit due to ice damming, it would not be reasonable for an association to simply refuse to respond by blaming it on a weather event they could not control. There are likely cost-efficient techniques an association could employ that would at least stop further leaking. Researching such techniques, including seeking expert opinions on how to prevent such problems, is something an association should do…at a minimum…to satisfy their duty to the members of the association.

[*In accordance with NJ court opinions on the issue, an HOA or condo association is responsible for damage to the inside of a unit only if the association was negligent in addressing the source/cause of the damage. For instance, if a unit owner reported to her association that water leaking into her unit through a hole in the roof of the building (or, as here, from ice damming), but the association failed to timely address the leak and infiltrating water continued to damage her unit, or worse yet failed to address the leak at all, in that situation the association could be found negligent and thus responsible for the water damage to her unit. Otherwise, a unit owner is responsible for any damage to the inside of his/her unit under the association’s insurance deductible. This is why it is important for an association to require that all unit owners carry HO6 insurance on their units.]

If you have specific questions about this issue or other HOA-related issues, don’t hesitate to contact our office to speak to one of our attorneys.

NJ court rulings on HOA sign prohibitions relevant this election year

As we all know, 2013 is an election year in which voters in New Jersey will have the opportunity to elect a U.S. Senator, Governor, state legislators, county freeholders, and some members of municipal governing bodies. As we also know, elections bring electioneering, including the proliferation of political signs. So, this is a good time to review New Jersey law as it relates to condominium and community association restrictions on the posting of signs within their planned unit developments, particularly political signs.

In June of 2012 the New Jersey Supreme Court, in the case of Mazdabrook Commons Homeowners Association v. Khan, addressed the question of whether a homeowners association can prohibit its residents from posting political signs in the windows of their own homes. In that case, Mr. Kahn, a resident of the HOA, posted two signs in support of his candidacy for Parsippany Town Council, one inside his window and one inside his glass door. He was promptly ordered by his HOA to remove the signs as the HOA’s rules banned all signs except one “For Sale” sign. Mr. Kahn complied, but later sued the Association for violating his state constitutional right of free speech.

The Court noted that it had previously (in 2007) examined whether a homeowners association can restrict the right of its members to post signs in a case commonly known as Twin Rivers. In that case, the Court ruled that such restrictions are constitutional and thus enforceable if they are “reasonable as to time, place and manner”. The Court found that the Twin Rivers restrictions, which permitted signs to be placed in the home’s windows and in flower beds adjacent to their home, were in fact reasonable and thus enforceable.

The Court in Mazdabrook, however, distinguished the sign restriction in that HOA (which banned all signs except one For Sale sign) with the sign restriction in Twin Rivers (which allowed two signs of any type). It found that “political speech in support of one’s candidacy [or any other person’s candidacy] for public office is fundamental to a democratic society. It is protected by the State Constitution, which affirmatively guarantees the right of free speech to all citizens…”, regardless of the HOA’s governing restrictions which each resident agreed to upon moving into the HOA. The Court found the Mazdabrook sign restrictions unconstitutional and unenforceable. Importantly, however, the Court went on to hold that HOA restrictions on signs, even political signs, may be upheld and enforceable, as long as they are reasonable as to time, place and manner, and as long as the HOA has adopted a written rule on the posting of signs.

So, an HOA rule banning all political signs is unconstitutional and unenforceable. But an HOA rule reasonably restricting the posting of political signs, such as allowing one or two standard size signs to be displayed in the window or door of a condo or townhome until the day after the election, would likely be found constitutional and thus enforceable.

If you have specific questions about this issue or other HOA-related issues, don’t hesitate to contact our office to speak to one of our attorneys.

Solar Panels in Homeowner Associations

New Jersey law provides that homeowner associations shall not adopt nor enforce rules prohibiting the installation of solar collectors in certain circumstances (see NJSA 45: 22A-48.2).  For instance, owners of single family detached residences, or townhome residences, in which the owner of the unit holds title to the building as well as the ground surrounding it, are permitted to install solar power generating systems on their roofs.  However, the homeowner association is permitted to adopt and enforce reasonable rules regulating the installation and maintenance of the systems (such as the location, color, and concealment), so long as those rules do not increase the cost of installation and maintenance of the system, and do not inhibit the system from operating at its intended maximum efficiency.  Note that an association (such as a condominium association) can prohibit the installation of solar energy generating systems on common property owned by the association (such as the exterior of condominium buildings).