New Jersey Community Associations Need to Address Bed Bugs

Bed bug problems in New Jersey real estate are fairly new.  Condominium and Homeowner Associations in New Jersey need to be aware of this issue.
But bed bug grievances seem to fall into certain types of claims.

The first claim relates to personal injury. A person stays at a hotel or perhaps rents a room and gets bitten. He or she files suit claiming the landlord failed to provide habitable premises or was negligent.

A second kind of claim relates to a landlord or real estate seller who fails to disclose. Here the victim proves the landlord or seller knew or should have known of infestation and did not disclose the problem. This may be a fraud claim or a negligent representation claim.

A related claim may be under a law called the Consumer Fraud Act which prohibits unconscionable trade practices. The law specifically applies to certain real estate transactions, is easier to win than traditional fraud, and allows for triple damages which are called treble damages and attorneys fees. Sellers, brokers and other people may be exposed under this very powerful law.

Other claims may be filed against condominium or home owner association complexes on the theory that bed bugs entered through common elements, for which they have legal responsibility. Common elements may include space between walls, space under first floors, space under attics, and common law and hallway areas.
Bed bug claims may also be brought against extermination companies for negligent extermination services and against the property manager for negligent performance, negligent supervision, and negligent training. Here, some form of prior notice would likely be required.

In landlord/ tenant cases, some tenants are seeking either rent reductions or lease terminations based on bed bug infestation. Results in these areas seem to be very fact sensitive. Documentation on both sides is key --and the lease and other real estate documents must be carefully reviewed to determine rights and obligations.

Here is the bottom line. Bed bugs are at infestation levels and they are found all over the place. Litigation will continue, and will likely explode. The more people are exposed, the more they will seek relief from
the courts.

We are the very early stages of this from a legal standpoint. This means possible responsible parties must be pro-active, vigilant, and be able to document their reactions and concerns. Promises alone will not provide legal protection. Prompt effective, documented actions will likely be key.

Lieberman & Blecher proudly represents community associations and files claims involving community associations through out New Jersey.

Community Associations Should Not be Anti-Mezuzah

I represent community associations in New Jersey and I have represented clients against many others. Community associations definitely come in all shapes, sizes and flavors. Very little surprises me any more. Some surprises are pleasant, others are less so.


One issue that is very important in every community association is the concept of respect. People in community associations have some measure of interdependence. They need each other to survive.

And this means that people must interact, must work together, and therefore must treat each other with respect. Disrespect is a sign that a community association is heading in the wrong direction. Especially when the Board members, the leaders of the community, are the ones who are failing to respect.
Respect means listening while others speak. It means not always thinking you are right – but instead encouraging various points of view. And respect means tolerating or better yet celebrating, each other’s sexual orientation, religion, and other personal characteristics.

The mezuzah issue is becoming emblematic of this issue. A mezuzah is a small covered portion of the Jewish holy scroll that is mounted on a door post. Many Jews place these on their exterior doorposts, which may be common elements. Some Boards have tried to members from installing mezuzahs on door posts.

While perhaps technically correct, this is disrespectful. It directly interferes with a Jewish person’s right to practice his or her religion. Others religions have similar requirements and they too must be accommodated.

Maybe quite literally, the Board does not have to cooperate. But respect means going past the minimum and doing what is just plain right. If we can’t respect each other, after all, then it will be very hard to live together.

If an association is not allowing installation of religious items, then I suggest having a private meeting with the Board and educating the Board members. Often these issues arise out of misunderstandings.

If that does not work, you may seek alternate dispute resolution. This should probably fix your problem.

If that does not work, judicial relief is an option. Several of these cases have been litigated recently and often with favorable results.
But remembers 2 things. Litigation is costly. And litigation is always a very last resort. After all, when the case is over, you will still live in the same community with the same people. Suing your neighbor does not always support a warm and fuzzy relationship.

Lieberman & Blecher practices environmental law and community association law in New Jersey. www.liebermanblecher.com

Some Associations may benefit from wind turbines--but be careful

Wind turbines may very well provide reliable green energy. What can be bad?  Many associations have attracted needed revenue by installing cell towers.  Wind turbines are gaining in popularity in the US and may offer similar possibility.

But if that does become an option, proceed carefully.   Residential communities are reporting noise problems in some cases.   And you do not want what initially seems like a GOOD idea to turn into a very bad idea.
There are 2 kinds of noise associate with them. The noise from the wind itself. And the noise associated with the internal turbine operations. Noise levels change throughout the day. Nights can be very difficult.

There are several reports of residential areas that have been badly affected by this. Let’s make sure that as we become introduced to wind turbines, we protect our existing residential communities.
It seems to be good advice at this time that wind turbines be kept away from where people live and work. After they are built, it can be too late, and too costly to fight. Its simple, wind turbines are a good thing in concept; as long as they are kept away from where we live and work.

Which means that community associations need to ensure that if they consider this option, there is enough distance between the turbine and the residences so as to keep the peace.

My advice.  Do not just rely on industry representatives for information about this issue.  Seek professional engineering help from an independent expert.

Lieberman & Blecher is a New Jersey law firm with a statewide practice. We represent many community associations.

Community Associations May Benefit From New Solar Law in N.J.

A recent law in New Jersey promotes the use of solar system technology. The statute, which was enacted in April, promotes the installation of solar systems by excluding solar panels from impervious cover calculations. Click here to read the law.

Impervious cover refers to development that encourages flooding by preventing storm water from being absorbed in the ground. Many of our development statutes limit impervious structures or require that alternative measures for addressing runoff be utilized when impervious development is approved. The purpose of these requirements is to stop flooding by encouraging on-site recharge of storm water.

Because solar panels tend to be large, they trigger many of these mitigation requirements and in certain instances have limited the approve ability of projects containing them. This new law reverses this effect by excluding these panels from impermeable calculations.

Lieberman & Blecher is a New Jersey law firm with offices in Princeton.

Condominium Association subject of class action over radon systems

A New Jersey Superior Court Judge certified a lawsuit we filed alleging defective radon systems in a New Jersey condominium complex.  Click here to read about the class action certification, that occurred earlier this week.

Claims were asserted against the Association as well as the developer and others.  The claims against the Association relate to its alleged failure to maintain the systems properly.

Lieberman & Blecher represent community associations throughout New Jersey.

Mold Problems, Mold Lawsuits, Mold Injuries

Our firm has litigated numerous cases involving mold. There are 2 kinds of cases: property damage and personal injury. Property damage cases relate to either real property or personal property harmed by mold. Personal injury cases relate to injuries people suffer after mold exposure.
Illness can range from allergy-like symptoms, to severe respiratory problems. Some life threatening conditions may also result from exposure in some people.
1-800-got-mold? is a national mold detection company that has been doing this for years. The company wrote an article about black mold which was so interesting that I wanted to re-print it on my blog. HOWEVER --THE ARTICLE WAS WRITTEN BY "1-800 - GOT-MOLD?"

Read full story................................................
The Truth About 'Black Mold'

If you have gotten a glimpse of the internet conversation going on about indoor mold, you have seen the term “black mold,” or “toxic mold,” or “toxic black mold.” Perhaps you have even seen mold assessment companies or home mold test kits claim they can find and eliminate black mold from your home.Beware the black mold hype. It's a sales pitch based on fear, often accompanied by inferior abilities and practices on the part of the seller. Treat these hucksters the same as you would the character who knocks on your door and offers to seal your driveway or patch your roof.

So what is the truth about black mold? Is it as dangerous as it's made out to be? Well, that's a gray area. The type of mold most people refer to when they say “black mold” is Stachybotrys (Stak-ē-bot′ris) chartarum. It is blamed for many serious illnesses, but the science is still out on exactly what stachybotrys does or does not do.

There are other so-called black molds, so named because they appear black, as opposed to green, yellow, orange or white. The blackness is due to the fact that these molds produce melanin, the same pigment that protects human skin from sunburn and makes dark-skinned people dark. Because of this, black mold is more tolerant of light and more resistant to dehydration than other molds.

Along with this added toughness come some tough weapons, called mycotoxins, which give black molds their toxic reputation. More on mycotoxins below.

All mold is a problem

But should you check your house for black mold? In a word, no. You should check your house for moisture problems and for mold, period. It doesn't matter what kind. If mold is growing in your house, you have a problem, which will not correct itself.

The most important truth is: Indoor mold is bad for people. Mold growth left unchecked will get worse over time, and can make virtually anyone sick. How sick depends on the individual, and sometimes the types and extent of mold growth. Indoors, there is no good mold, except in beer, wine, bread and some cheeses.

Perhaps the most profane use of the “black mold” term to generate sales is in the realm of cheap home mold test kits. One such kit in particular, which uses “settling plates”, which look like Petri dishes, to collect airborne mold, claims it can detect “black mold.” The statement is utterly false, for several reasons.

1. Stachybotrys spores are large, heavy and often wet, compared to other molds. This means it's difficult for them to become airborne, so they're unlikely to fall into a settling plate and set up house there.

2. Stachybotrys is very slow to grow (we'll explain why below), so any spores that may find their way into the dish may not form a colony large enough to analyze before you throw the whole thing out.

3. The culture medium used in these kits will not grow Stachybotrys. You read that right. Even if you threw a fistful of Stachybotrys into the dish, the nutrient is the wrong stuff, and it won't breed.

4. Adding insult to injury, this company and others like it leave it up to you to analyze what sprouted in your dish, unless you pay extra.

5. The final insult is that the growth in the dish tells you exactly nothing about whether you have a mold problem. Mold is everywhere. Set out a moist meal for mold, and it will partake. A slice of bread, a piece of fruit, whatever, will grow mold in virtually any environment.

Three stages of mold growth

Molds such as Penicillium and Aspergillus are common first-stage molds that can begin to grow within 24 hours of the introduction of moisture to a nutrient base. Fungal nutrients are primarily cellulose, meaning plant material, such as paper, wood, fabric; pretty much everything humans use for clothing and shelter. Even things as simple as household dust can support a pretty wicked fungal infestation.

If moisture is sufficient, secondary molds are likely to appear, including Cladosporium, Alternaria and some varieties of Aspergillus.

Over time and with continued ample moisture, the tertiary molds develop: Stachybotrys, Chaetomium and others.

One simple fact to draw from all this is: If you have stachybotrys indoors, you have a serious, long-standing moisture problem that may soon threaten the structure of the building if left unchecked and in areas where the wooden parts of the structure might be at risk. Moisture intrusion of this magnitude also leads to wood rot.

Finding real evidence of indoor mold growth
One of the few industry standard, consensus-accepted and scientifically valid approaches to testing indoor air for evidence of mold problems is to use air-sampling cassettes, each of which contains a small slide coated with a sticky adhesive, and which requires that a measured quantity of air be drawn past the slide. A minimum of three samples should be taken: One outdoors to establish a baseline, a second indoors in an area suspected of having a problem, and the third indoors in an area considered non-suspect. These samples are then compared with each other and with ambient mold levels outside.

(Editor's Note: You can do this yourself with the GOT MOLD? Test Kit, sold by our sister company, MycoLabUSA.)

The slides are then sent to a lab accredited by the American Industrial Hygiene Association and examined microscopically by a qualified lab technician. The fungal particles are identified and counted, to reach an estimated number of mold particles per cubic meter of air. If there is a higher concentration indoors than outdoors, or if the types of molds found indoors are not seen in the outdoor sample, it is a strong indication of an indoor mold problem.

If Stachybotrys is found on the indoor sample in quantities greater than outdoors, it is a near certainty that there is a serious indoor mold problem due to the reasons described earlier. Stachybotrys spores settle out of the air much faster than most other spores commonly found indoors where a mold problem exists.

Medical research moves slowly

While Stachybotrys is associated with some extreme cases of illness, the medical community has not done enough research to prove this type of mold is more toxic than others. It's only within the past decade or so that medical studies have dealt with mold at all. The landmark case was a 1999 study by the Mayo Clinic, which concluded that 96 percent of the 37 million cases of chronic sinusitis (persistent sinus infections) is caused by fungus in the nasal mucous.

But the Stachybotrys research has not been as clear. The Illinois Department of Public Health reports:

“In 1994, the U.S. Centers for Disease Control and Prevention (CDC) investigated whether exposure to stachybotrys might be related to pulmonary hemorrhage, also known as bleeding lungs, in infants in Cleveland, Ohio. While the CDC initially concluded that there was a possible link between exposure to the mold and the condition, stachybotrys was not found in the homes of seven children with bleeding lungs identified in the Chicago area between April 1992 and January 1995. A subsequent review of the Cleveland study by a group of CDC experts concluded that a link between exposure to stachybotrys and bleeding lungs in infants was not proven.”

Millions of people in moldy environments suffer a broad spectrum of symptoms, ranging from allergy-like sneezing, coughing and runny eyes all the way to brain fog, memory loss, chronic fatigue and bleeding lungs. In many cases, these symptoms disappear when mold is removed from their environment, or when they leave a mold-infested place.
What is unknown is precisely what causes these various ailments.

Mold, or fungi, produce three basic substances that can irritate people: Spores (microscopic “seeds”) and fragments of the organism (hyphae); microbial Volatile Organic Compounds (mVOCs); and mycotoxins, meaning poisons produced by fungi.

Spores and hyphae

Spores and hyphae can cause irritation, sneezing, itchy eyes and similar symptoms. It is these microscopic particles that are most commonly associated with mold, and most commonly assumed to be the only active ingredient with any impact on human health. Thus thousands of doctors and so-called health experts naively dismiss indoor mold as a serious health problem.

Fortunately for all of us, this cavalier attitude toward indoor mold is slowly fading, being supplanted by a growing awareness of the real dangers of living in a moldy environment.

Mycotoxins

It is the mycotoxins of stachybotrys that are believed to be the key to this mold's toxicity to humans, and the theory makes sense, though as we said it's unproven. Stachybotrys produces trichothecenes, which are suspected of being able to cause bleeding in the lungs. It also emits an enzyme which digests protein (a protease), which some research suggests may combine with trichothecenes to wreak even more lung havoc.
Mycotoxins are believed to be part of the coating on mold spores, meaning that in the case of stachybotrys the spores need to become airborne in the living space for people to inhale them, before they can be affected by the toxins.

Earlier we mentioned that stachybotrys is slow to grow. That's because it is what's known as a “tertiary” mold, meaning that it arrives as the third stage of mold growth in an ongoing infestation. It requires a stable, very moist environment with the right food in order to thrive.

Many molds produce mycotoxins, whose purpose is primarily self defense. Penicillin, for example, is a mycotoxin from the Penicillium chrysogenum fungus. It's a powerful antibiotic, because bacteria are molds' chief competitors for food. Take a Petri dish with a thriving bacteria culture in it, drop in the right species of Penicillium, and the bacterial culture will die off in a circle around the fungus.

Aflatoxin B1, a known carcinogen, is a product of Aspergillus flavus, which grows commonly on stored nuts, grains and peanut butter.

Microbial Volatile Organic Compounds
Another possible culprit is microbial Volatile Organic Compounds, or mVOCs. Molds produce a wide variety of gaseous chemicals, including acetones, alcohols, benzene, methyl chloride and so on. These are chemicals we typically associate with human industrial activity, and yet they are emitted by molds! It is this cocktail of chemicals that gives mold its musty smell, and which can cause burning, itchy eyes and skin, dizziness, headache and foggy thinking. Prolonged exposure, obviously, cannot be good for you.

As you might guess, mVOCs, because they are in gaseous form, are able to penetrate walls and ceilings, leak around switches and outlets, and are generally free to roam around your air supply and be inhaled. However, they cannot be detected by standard air sampling methods (there are tests for VOCs, but they are generally not used in pursuit of mold). Air sampling only captures airborne particles, certain types of bacteria, mold spores, skin cells, pet dander and pollen.

That is why air sampling often misses finding significant mold growth when it's hidden in closed cavities whose air doesn't circulate within the living space. Mold-detection dogs like those used by 1-800-GOT-MOLD?, however, can point quite accurately at hidden mold growths, because they can detect the tiny amounts (measured in parts per billion) of mVOCs in the air and trace them to their source. This gives their human partners the opportunity to investigate further with various electronic tools, and by boring holes and taking air samples inside such cavities.

Electronic moisture detection and infrared thermal imaging are excellent tools for finding pockets of hidden moisture, where mold is likely to reside. These tools are often used to further investigate a dog's findings, prior to hole-boring and sample collection.

'Menace to humanity'

So is black mold toxic? Is it dangerous? There is little doubt. Nicholas P. Money, in his highly entertaining yet densely informative book, “Carpet Monsters and Killer Spores,” on which this article relies heavily, acknowledges the black molds, which include molds other than the notorious stachybotrys, as a “menace to humanity.”

Why is the black-mold menace coming to light so recently? According to author Money, stachybotrys may be a foreign import. The earliest known record of this deadly fungus is in the Ukraine in the 1930s, when many horses died due to exposure to moldy hay. This was no small matter, since horses then were like cars and tractors now. The cited cause of death was stachybotryotoxicosis (sorry for the double mouthful), meaning essentially stachybotrys poisoning. A number of people also were afflicted, either by handling the moldy hay, or sleeping on moldy hay mattresses.
Money indicates Stachybotrys may have come here from eastern Europe via trade products during the mid-20th Century, and may still be in the process of spreading.
The Centers for Disease Control and Prevention has this to say about toxic mold:

“Certain molds are toxigenic, meaning they can produce toxins (mycotoxins), but the molds themselves are not toxic, or poisonous. Hazards presented by molds that may produce mycotoxins should be considered the same as other common molds which can grow in your house or workplace. Contradicting research results exist regarding whether toxigenic mold found indoors causes unique or rare health conditions such as bleeding in the lungs. Research is ongoing in this area.

“Mold growing in buildings, whether it is Stachybotrys chartarum (Stachybotrys atra) or another mold, indicates that there is a problem with water or moisture. This is the first problem that needs to be addressed.”

Black mold is only part of the story

Black mold is most certainly to be avoided. But the lesson here is that it's not the first thing, or the only thing, to worry about. The thing to worry about is moisture problems indoors, because where you have these, you will inevitably have a whole assortment of uninvited guests making themselves at home in yours. All molds cans trigger asthma attacks and people die from asthma attacks every day. All molds can trigger allergic reactions and sinusitis. Mold is essential to the making of wine, beer, bread and some cheeses. It is decidedly undesirable in the making of a home.
If you think you may have a mold problem, or know that you have had any kind of water intrusion, a thorough investigation is in order. The best way to avoid black mold is to eliminate it before it germinates, which means preventing or eliminating moisture problems and removing mold-infested materials at the earliest possible time.

Prevention is the best defense against mold. This consists of thorough, regular maintenance of plumbing, siding, windows, roofing and drainage systems, semi-annual duct cleaning and HVAC maintenance, and constant vigilance for the slightest sign of excess moisture.

Maintaining relative humidity at or below 50% also is a key factor, especially in poorly ventilated areas such as attics, crawlspaces and basements. Ventilation, proper insulation and dehumidifiers are essential here.


Source: Habitat Quarterly Issue 3    go to 1800gotmold.com for more valuable information about this subject.

NJ Homeowner Associations: Avoid Very Limiting Sign Rules

In the case MAZDABROOK COMMONS HOMEOWNERS' ASSOCIATION v. WASIM KHAN. an appeals court found a condominium association's rule concerning signs was unconsitutuional. The case was decided last week.

Two things are noteworthy about this Assocition. First in my humble opinion it has very extreme penalty prolicy. They tried to fine a unit owner thousands of dollars over a rose bush -- Give me a break.

And they outlawed all signs except real estate "for sale" signs. Unit owners were limited to one "for sale" sign. The Court found that this favored commercial speech and was not supportable.

"In the present case, we have a regulation that is not content neutral, and indeed it favors commercial speech. It is broadly drawn so as to foreclose an entire type of communication that has long been recognized as significant. Additionally, it regulates the free speech rights of residents within their condominium units."

Sign rules that favor commercial speech may be invalidated. Does your rule meet this test?

Community Associations And Bed Bugs

Community Associations must be vigilant when it comes to bed bugs for 2 reasons.

First, from a public health standpoint these blood sucking critters can spread. A problem that originated in 1 unit may soon become a multi unit problem.

The larger the problem, the costlier the cure.

Second, associations that allow the problem to spread will likely be sued. Just as is the case with many other bug problems, associations often have a duty to respond to bed bug problems. Responses need to be prompt and efficient.

Bed bug litigation is on the rise all over the US. There have been some very high awards. Make sure that your association is very pro-active so that it does not become another litigation casualty.

Condos Need to Watch for Illegal Pesticides

The Star Ledger reports that a Newark NJ based company has been charged with using illegal chemicals for pesticide applications in some of New Jersey's urban areas. This includes the Iron Bound Section of Newark.

According to the newspaper report, many applications allegedly took place in areas where victims may be afraid to speak out due to language barriers.
See the Star Ledger articled dated July 13, 2010 for more information. Please note that these are only allegations against this company. The company has not been convicted on anything to my knowlege.

However, if true this would constitute a serious violation. We all trust that companies retained to apply pesticides will only use chemicals that are legal and are intended for this purpose.

Pesticides have one purpose: to kill pests. If misused -even lawful pesticides can be dangerous. Unlawful pesticides may represent an even greater danger.

Anyone victimized by a company that has used illegal pesticides needs to seek medical advice if he or she becomes ill or if the illegal chemical is shown to have a dangerous potential.

Associations here in New Jersey must ensure that companies they use for pesticide applications are licensed for this purpose.  And that they only use legal products that are approved for the proposed application.

Errors can make residents ill.  They may also result in legal liability.

Lieberman & Blecher represents New Jersey community associations.   http://www.liebermanblecher.com/

Saying No to Religious Artifacts May Violate Federal Law

 Can a homeowners association preclude unit owners from installing a mezuzah or other religious artifact outside of its unit?  Maybe not, says a federal appeals court in the 2009 case,  Bloch v  Shoreline Towers Condominium.

This federal appeals court decision ruled that the Federal Housing Act may preclude rules that do not allow these religious objects to be displayed outside of a residential unit, such as on a doorpost or on a door. 

The case marked a change from earluier decisions that suggested that federal housing law protection may not apply to discrimination after a purchase.  In this appeals court decision, the Court held that, depending on the facts, saying no to a mezuzah or other religious object outside of a unit (in the case of a mezuzah on a door frame) may violate federal law, resulting in stiff monetray damages and attorenys fees.

This federal decision technically does not apply to New Jersey.   But, it stands as a strong indication that such prohibitions may likely be illegal here as well.

My advise to Boards: just don't say no.

Lieberman & Blecher represents homeowner and condomimium associations throughout New Jersey. www.liebermanblecher.com 

Receivers May Take Contol Of Dysfunctional Boards

In New United Corporation v. Essex County, a New Jersey appeals court recently addressed the thorny issue of how a court may resolve a dysfunctional condominium board.   In this case, the common assets were not being maintained in a three unit commercial association.  Essex County was a tenant in two of the units and by contract controlled the association. 

The County planned to use these offices in conjunction with plans to move a medical facility.  Those plans apparently did not materialize and it appears the County lost interest in the commercial units.  Allegedly, the County defaulted on its association responsibilities and things that needed to be maintained were not.

Predictably, litigation arose and the appeals court ruled as follows:  a received could be appointed to run the association, but with limited authority and for a limited duration.   The idea is that the receiver would do the least amount of work needed to maintain the facility.   The association could continue to meet and operate, but had to allow the receiver to perform its court required tasks.

Breaking up is hard to do --and working with a court appointed receiver can be even harder.  But dysfunctional Boards beware --- if you are not getting the job done, a court may very well appoint someone to act in your place until matters can be sorted out.

Invariably, this not a pleasant situation.  Which means that Boards must carry out their responsibilities in an honest, open and fair manner.   If they fail to do so, a Judge may appoint someone to take over control of the association.

Rain Gardens Show that HOAs and Condos are Green

                  Developer should build rain gardens in community association projects.


Condos and HOAs can all develop rain gardens. These are eye appealing gardens that manage or help manage stormwater runoff.

Many associations already have to manage and maintain highly technical stormwater control mechanical devices.   While rain gardens need to be maintained, they require little more effort than conventional gardens, they look nice, they help control and treat runoff, and they make a bold statement that the association is truly "green and caring."

Stormwater control can be accomplished through varied systems.  Depending upon the association's needs, a rain garden may provide a solution or at least part of a solution.  An engineer should evaluate your needs and make this determination -- in conjunction with the association board. 

When runoff is not controlled it leads to flooding, surface water pollution and property damage. New developments may require intricate stormwater control, and this can be part it.

For more information, please read more about rain gardens.


Lieberman & Blecher provides environmental legal representation throughout New Jersey. www.liebermanblecher.com

When Condo Fires Strike......

In condominium communities and other communities responsible for exterior maintenance and repair, the worst four letter word that can be uttered is “fire.” Obviously, fires can be very destructive and they can injure or kill. All reason enough to hate them.

But assuming no one is hurt, fires test associations and management companies to their core .

First, you have the issue of repair. How will this be funded? Will the association’s insurance policy pay? Or the unit owner’s or perhaps the tenant’s policy (if the unit was being rented?

Perhaps the answer will be one of the carriers. Or all of them may assign some percentage of responsibility and pay the costs.

How will funding be obtained? Will the carriers contract directly with the contractors and pay as invoices are presented ? Or will the management company pay and then seek reimbursement.

Who will keep track of re-imbursement? Hint: this is much easier to do if one carrier is footing the bill rather than several. It becomes more complicated when multiply carriers are paying at different percentages.

Also, someone needs to watch what the carriers’ per claim limit is. If its one carrier, its pretty simply. If a few are paying, and each have different caps –well, good luck!

Will the responsible party be asked to pay any amount that is not covered by insurance? If so, what will you do when he/she/it refuses? Right it off? Take enforcement action? Refer to counsel? What does state law have to say about this?

And will the unit owner who has been displaced be paid for lost rent or re-location? That answer may depend on insurance coverage issues, liability determinations, and local law?

Also, while the association my be responsible for the exterior and everything but the finished walls –who will pay for cabinets, other improvements and contents? And will this be coordinated with the other contractors?

Will you use a claims adjuster? They can help secure the best deal with the carriers and may help with coordination of the re-construction. But they charge a significant fee for their services. They may be worth the expense –but this must be factored in.

These are only some of the issues. Since a burned out unit may take a year or more to resolve, tensions and frustration levels can run high. Which makes this a very defining moment. Are you up for the challenge?


Celebrating our 10th year, Lieberman & Blecher represents many Homeowner Associations and Condominums throughout New Jersey. http://www.liebermanblecher.com/

Associations May Challenge Wrongful Insurance Claim Denials

Homeowner Associations and Condominiums often ask their insurance companies to pay for needed claims. This can include environmental issues,  fire damage claims, thefts and claims relating to employee misconduct. 

While some claims may not be covered, you should know that some insuance companies do deny claims in cases where at least some coverage SHOULD be provided.

When insurance companies deny claims, they must do so for reasons that relate to the insurance policy. Insurance policies are written contracts between the insurance company, also known as the insurer, and the policyholder, also called the insured. If a claim occurs that is covered under the terms of the insurance policy, the carrier must provide coverage.

It is always wrong for an insurance company to deny coverage when no reason exists for denying coverage. When you feel that your insurance company has wrongfully denied your claim, you may have to sue your insurance company. This type of lawsuit is called a declaratory judgment action. You are asking the Court to declare that there is coverage and to order the carrier to pay all necessary costs.

In certain instances, if an insurance company really misbehaves, Courts will allow cases to proceed seeking punitive damages against the insurer even when it ultimately is determined that there is no right to coverage. In these cases, Courts have generally held that insurance companies have a duty to deal with their insureds fairly and in good faith.

This duty of good faith and fair dealing comes from a recognition that insurance companies have a special relationship with their policyholders. Policyholders purchase insurance so that they know that in a time of need, an insurance carrier will be standing next to them. When an insurance company intentionally avoids its obligations by acting in bad faith, this leaves the policyholder in an even worse situation then he/she should be in.

It is incumbent upon the insurance carrier to act fairly and in good faith. The carrier must make a decision based on the language in the contract and the carrier needs to remember that it enjoys a special relationship with the policyholder, one based on trust, and sold on this notion of trust. We all know that we are told that we are in "good hands" with one insurance company and another acts like a "good neighbor."

In fact, many companies are responsible. But when policyholders are mistreated, they need to remember that a statute of limitations may require that litigation be filed by a certain date or the right will be lost. In such cases, policyholders should promptly seek out the services of experienced legal counsel.
Insurance companies have many lawyers who work for them and protect them. More often than not, they treat their policyholders fairly and with dignity. But in the rare instance when a carrier act badly, you should even the sides by retaining competent professional assistance to fight back and protect your rights.

Stuart Lieberman :: Lawyer - Princeton, New Jersey (NJ) :: Attorney Profile :: Super Lawyers

Stuart Lieberman :: Lawyer - Princeton, New Jersey (NJ) :: Attorney Profile :: Super Lawyers

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Lieberman & Blecher April 2010 newsletter

Sign up for our monthly newsletter, which is sent to your email address.

Every month we feature 3-4 short articles discussing a different areas of New Jersey environmental law or condomimium/HOA law.

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Founded in 2000, Lieberman & Blecher is a New Jersey environmental law firm serving all of New Jersey in state and federal court. http://http://www.liebermanblecher.com//

Mahwah Case Rules Fire Siren Not a Nuisance

When is noise so irritating that a Court will Order it be stopped?  The answer is sometimes -but not often.  I think not often enough.

This issue recently arose in a Mahwah New Jersey case involving a fire siren that sounded day and night.   The decibel levels were agreed to be very high. And according to the police chief, other means of notifying fire fighters such as pagers may have been equally effective.

However the appeals court found that the plaintiff homeowners had not demonstrated that the noise was sufficiently unreasonable to be a legal nuisance.   The court explained that a noise must interfere with the use and enjoyment of a neighboring property and it must be unreasonable to be considered a legal nuisance.

In this case, even though experts addressed the possible alternative means of notifying firefighters other than noisy sirens, the court was not convinced that the sirens were unreasonable.

The court noted that another ranking police officer was less certain that the sirens could be eliminated and observed that the hilly terrain made cellular and pager technology less reliable.

The court considered a similar New Jersey case form Atlantic County which concluded that the affected property owners would have to suffer the siren noises so that the entire community could be safe.


Condominiums have frequent noise complaints.  Often the management or the Board should intervene to determine if some resolution is possible.

But when it is not, judicial relief may be an option. 

Just note that experts may be required to carefully prove each component of these cases.
Showing merely that the noise is "loud" will probably not do the trick.

Righting a Wrong Condo Board

Representing several home owners associations and condo boards, as well as sitting on three of them as a Board member (President once!) , I have heard a lot of complaints from all sides.

Board members think that no one appreciates them (which is generally true). Unit owners worry that some Boards have gone too far, asserting too much power. Or that they don�t care. Or that they are "letting things go."

Clearly, there are pros and cons to living in a condo form community. While you surrender some independence, on the one hand, on the other you share costs and responsibilities, which in a way lightens the load for everyone.

This form of home ownership has many benefits and it works very well most of the time. Yes, everyone gripes at one time or another, but for the most part this is a system that meets everyone�s needs.

Unfortunately, there are some exceptions. There are some, really just a few, Boards that are out of control. Or that are not doing their job.

And worse yet, there are some Boards that are more interested in what will best serve the interests of the Board members rather than the community as a whole. Of bad Boards, this is the worst kind of offender by far. Because here we are not talking about sloppiness or nonfeasance, here we are actually talking about Board involvement in self dealing.

As I said, these "bad Boards" are by far the exception. If you encounter one, you need to know the rules, and your legal rights.

The rules are that Board members have a special legal duty to the unit owners. This is called a fiduciary duty.

This means that they must put the interests of the entire Association ahead of their own interests. And when there exists any kind of conflict of interest that might preclude this kind of mind set, they must step aside and not participate in a vote or a particular Board action. Simply put, a Board member can never make a decision that promotes his or her own interest over the interests of the unit owners.

Board members must make decisions that follow the following: state laws, local laws, and the association governing documents. Usually Boards have lawyers who help ensure that they follow these requirements and act accordingly.

Boards must protect the Association assets, often called common grounds or common elements. This means that they must be properly maintained, they must meet legal requirements for safety, they must be insured, and replaced when necessary.

And as part of this, Boards must ensure that everyone pays their Association fees and special assessments. Without this money, the Association simply cannot function and the Board must ensure that people pay, and pay on time.

Some Boards ignore their responsibilities either as to applicable laws or association documents. When this happens the first thing an affected owner should do is raise the violation to the Board�s attention.

Most likely, the mistake was accidental and by politely pointing it out, it will be fixed. Many Board members really do not understand their individual obligations. Sometimes they forget or become confused. Calm and appropriate mannered discussion will usually fix this kind of error.

Every once in a while a Board acts improperly and does so deliberately, or refuses to correct a legal defect even after it is pointed out and documented. When this occurs, unit owners may seek recourse in the Courts. This is not a good situation and should not be taken lightly.

In addition, various States regulate associations through some kind of agency process. If that applies where you live, you may be able to contact the agency and ask for an investigation and relief.

Sometimes, but rarely, Board members make decisions that favor themselves personally, and are not in the interests of the Association as a whole. This is a serious breach of trust that may be remedied by serious litigation� litigation that may impact the wrongdoing Board members personally in the form of a legal judgment for monetary damages. Again, this is an extreme any very rare situation, that must never be taken lightly by Board members or unit owners.

Associations usually are insured, and these policies will often cover legal expenses when an Association has been sued, even by a unit owner.

But allegations as serious as fraud and self dealing may likely not be covered by insurance �leaving a wrongdoing Board member in a very bad position of having to hire his or her own lawyer to defend against a lawsuit.

Condo forms of government generally work well and meet a lot of necessary needs. When Boards make errors, they are most often addressed through civil discourse. Boards usually want to do the right thing.

But in the rare event that civility fails, State agencies may be able to assist unit owners. If that is not available as recourse, and the fight is over an important issue, litigation may be considered as a final choice of action.

I represent  Condominiums and Homeowner Associations throughout New Jersey. I can be reached at 732-355-1311.

Barring Flag Flying --How to Lose Friends and Influence No-one

                                

Virginia and Hawaii currently have bills pending concerning flag flying in home owner associations.  The prevailing view nationwide seems to bar or look unkindly on efforts to outright bar flag flying.

I suggest that Homeowner Associations take a hard look at HOA rules that ban flag flying.   Generally, I think they are a bad idea.

Certainly,  reasonable limitations concerning the time that flags may be flown and the manner may be fine.  But be sure that your rules are legal --there are laws regarding this subject.

However, these absolute or near absolute, or otherwise not reasonable bans are going to be problematic.  They not only implicate free speech concerns, but they touch on issues of patriotism and community friendliness as well.

And courts and legislatures seem to generally disfavor blanket restrictions. Yes, there are worse things in life than living in a patriotic, flag waiving community.

May I suggest that you save money on legal fees and allow flags to be displayed.

Condos Need to Inspect Septics

I represented a condomium association with failing oil tanks.  We required that they all be removed by a specified period and replaced with better, usually above ground tanks.

Septic systems need the same level of attention.   Systems installed at the same time may start to fail at the same time.   Since this often involves harm to common elements or to unit owners,  associations may be legally required to seek protective measures. 

A proposed Flordia law will require government inspections of septic tanks. It is a very good idea and I hope this is followed nationwide.  Associations need to make sure that they are inspecting septics on a regular basis as well.

Septic systems do no last forever. They all eventually fail.

And a failing system means human waste impacting the groundwater --often drinking water. Human waste has bacteria and viruses and can make people very will.

Many people having failing systems and are not even aware that they are failing. This means they may be polluting the local water supply and not even know it.

Many people know they have failing systems and ignore the problem as long as they can. Often the soil become constantly wet --and odors develop. But people look the other way to avoid what can be costly repairs.

Associations with septics need to make sure that the systems are functioning.  If not, it is usually best to be pro-active and ensure that repairs or replacements, by qualified and licensed contractors, is on the immediate agenda.

Smoker Lawsuits

We just had a small exchange on Linked in  about a New York lawsuit brought by a unit owner in a condominium  relating to cigarette smoke getting into her apartment.

One property manager stated that if the unit owner does not like the odor, she should close her windows.   He also opined, essentially, that second hand smoke is safe.  Fortunately, the others who commented agree that this is a serious issue and a health concern.


I would like to see some anti smoking groups, with good experts, assist us lawyers with a few test cases here in New Jersey.  I believe we need some definitive case law establishing the rights of unit owners to not be smoked out of their home and not be killed by second hand smoke.  If you know groups that want to support these lawsuits by supplying quality experts, I  am certain that some lawyers will handle these cases on a contingency basis so that we can get some good case law.

That might even require taking cases up on appeal.  Whatever it takes, it is time to place living spaces on par with Casinos and bars, all of which don't allow smoking.  The in-balance makes no sense. 

In my opinion this is not complicated.  Often this smoke enters units through the walls --so it is not even always a window issue.  Ventilation systems can move smoke around as well.

And even if its a window issue, why should some one have to keep their windows closed because someone else has a really bad habit?  As I alluded to on Linked in, I would not like my home to smell like a 1960s bowling alley.  And no one should have to live that way in 2010.

We have cleaned up our restaurants and even our casinos.  Its time to protect our homes as well.  This is a call to anti smoking groups who want to help.  We need your help.   

The “I did Not Know There Was an Association “ Defense

Representing condominium and homeowner associations throughout New Jersey has its challenges. Often unit owners feel they should not have to pay common charges for one reason or another. Logic usually prevails. Unfortunately, sometimes these issues end up in court.

But everyone once in a while I am presented with the silliest of all excuses: I did not know there was an association when I bought my unit, so I should not have to pay the monthly fees,” Yes, more than one person has actually asserted this, and they do not all live in the same place.

Try that with local taxes. You might say, “I should have to pay local taxes because I believed this was an unincorporated area when I purchased my home and that I only had to pay taxes to the county. No one mentioned local taxes as well.”

Or try this one, “I believe the United States lacks the constitutional right to tax, so I refuse to pay my federal taxes.”

The notion that one can forgo taxes or assessments by denying the legitimacy of the organization is pure folly. A legally constituted homeowners association or condominium has the right to assess mnonthly charges. Period.

What really might happen in some cases is that sellers may misrepresent the status of the association to a prospective buyer. If so, that may result in a misrepresentation or fraud case against the seller and maybe the real estate professional.

Or it may be that the buyer’s lawyer had a duty to advise the buyer that an association existed and what that means. Under those circumstances, the failure to advise may result in a malpractice action.

But the naked assertion that one does not have to pay because one was not informed –or one denies the right of the association to exisit at all –that is all nonsensical.

Associations should try to reason with homeowners when they make these claims. But if the unreasonableness lasts too long, there may be no other option left for the associati0on but to go to court.

It can be very difficult to reason with unreasonable people.

Florida Homeowners Association Uses "Reverse Foreclosure"

This is a good idea if your state foreclosure laws will allow this.   The problem:  properties in the middle of a forclosure tend not to pay monthly fees.  And in this economy, the bank drags its feet on the foreclosure, because it will have to pay fees once title transfers.

One answer that worked in Florida is a "reverse foreclosure."   Attorneys went to Court and compelled title to transfer.  Notices were waived, necessary hearings were waived, and it worked:  the Court transferred title in one day.  Now the Bank must start paying monthly assessments.

The Homeonwers Associations figures it saved eight more months of zero fees from the unit in question.    See more about this here.    Consult with your state laws to see if you can do the same.   If you can --you should.

Maryland Law May Block Closeline Bans

A Maryland Legisltor is considering a Law that would make it illegal for a homeowners association to ban clotheslines. See  http://fastflip.googlelabs.com/view?q=homeowners%20association#qozDkXTlHOEBmM

This is intended to be a green law.   Dryers use fuel and I suspect may harm the ozone layer as well.

But is this too extreme?  And might New Jersey follow?

Smoke Gets in Your Eyes

  Condominium Associations often get smoke complaints relating to either a fireplace or wood burning stove. Ignoring the problem may very well be costly, and an overall bad idea.

Smoke can penetrate units and affect neighboring unit owners.  Some people are more sensitive to smoke than others.  For those people, definitely a minority, this problem will never go away. And nether will their objections.

The "offender" will invariably take the position that he or she is not breaking the law and has the right to burn.  Many Board members seem inclined to take similar positions.

However this "legal burning" may give rise to a private nuisance complaint in the Superior Court (here in New Jersey.)  The focus will then turn on the reasonableness of the burning, combined with the knowledge that the burning is making some one ill.

The fact that the burning may be cosmetic or aesthetic (the burner likes the crackle or the visual) and not for heat, may suggest that the burning is not reasonable in light of the health problems it is causing.

The victim unit owner may be able to prove through air testing that his or her air has a large volume of soot coming directly from the offending, burner unit..

The burner may be found liable as may also the Association.   Why the Association? Because the smoke is passing through a common element to pass from one unit to another.

So igoring burning complaints may be a bad idea.  Amicable resolutions,  including agreements as to time and duration of burning,  as well as payment for electric heaters and maybe even higher electric bills --all of these things may very well be a better idea than looking the other way.