REGENT BEACH CONDOMINIUM ASSOCIATION v. KENNETH CAPOLINO, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6741-04T56741-04T5

REGENT BEACH CONDOMINIUM

ASSOCIATION,

Plaintiff-Appellant,

v.

KENNETH and PATRICIA CAPOLINO,

Defendants-Respondents.

_________________________________

 

Submitted April 4, 2006 - Decided April 25, 2006

Before Judges Collester, Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County,

L-102-04.

Frey, Petrakis, Deeb, Blum & Briggs, attorneys for appellant (Norman W. Briggs and Michele L. Weckerly, on the brief).

Robert D. Kovic, attorney for respondents.

PER CURIAM

This case concerns a dispute over the replacement of sliding glass doors at Regent Beach, a fifty-two unit condominium in Cape May. Plaintiff Regent Beach Condominium Association appeals from a trial court order dismissing its complaint to enforce an assessment against defendants Kenneth and Patricia Capolino for the cost of replacing their sliding doors. The Capolinos cross-appeal from the trial court's decision denying their claim for counsel fees and dismissing their counterclaims. We affirm the trial court decisions in all respects.

I

These are the most pertinent facts. Each unit at Regent Beach has sliding glass exterior doors. In 2002, several residents approached the Association about replacing their sliding doors, which had become weathered. Because the doors were not a standard size and because the building's exterior walls had been water-proofed, replacement doors would need to be custom-made. The condominium's Master Deed defined the units' sliding doors as part of the units, as opposed to part of the common elements. However, believing that replacement of the doors could impact the waterproofing and appearance of the exterior walls, which were common elements, the Association determined that all of the doors should be replaced at one time. The Association located a company to custom make and install replacement doors, and a substantial majority of the residents voted in favor of a special assessment on all unit owners to pay for the replacement doors.

Defendants opposed the assessment and refused to pay it, leading the Association to file this lawsuit and to file a lien on their unit for the amount of the assessment. When defendants eventually sold their unit, they agreed as part of the sale contract to pay the assessment under protest. The replacement doors were installed after they moved out of the unit. When the trial court granted defendants summary judgment on the assessment issue, the court also ordered plaintiff to reimburse defendants with interest.

II

Having reviewed the record, we conclude that summary judgment was properly granted on the issue of the assessment, and we affirm for the reasons stated in Judge Visalli's cogent written opinion dated October 28, 2004. We add the following comments.

The Master Deed clearly provides that the units' sliding doors are part of the units and not part of the common elements. This is consistent with the Condominium Act, which defines common elements as including entrances and exits, except for "any specifically reserved or limited to a particular unit." N.J.S.A. 46:8B-3(d)(ii). The fact that the sliding doors are set into the exterior walls, which are a common element, does not transform the doors themselves into a common element. We rejected a similar argument in Soc'y Hill Condo. v. Soc'y Hill Assocs., 347 N.J. Super. 163, 171-72 (App. Div. 2002), in holding that window and door frames are part of the units and not part of the common elements. We therefore reject plaintiff's reliance on paragraph 10(c) of the Master Deed, which authorizes a special assessment for repairs or capital improvements to the common elements. If, apart from this wholesale replacement project, defendants had asked the Association to fix a broken sliding door in their unit, we have no doubt the Association would have refused on the grounds that the doors were not a common element.

Further, we find unpersuasive plaintiff's concern that unit owners might not repair or replace their sliding glass doors when needed or might install replacements that did not match those of the other units. Article X(1) of the condominium association by-laws requires members to perform

all maintenance and repair work with respect to the portion of each unit owned by him which does not comprise a part of the common elements and which, if not performed, would adversely affect the . . . first-class appearance of the building.

Article IX(k) of the by-laws also provides:

Replacement of existing doors and windows and the addition or replacement of storm doors or windows must conform to the quality and aesthetic standards established by and reasonably acceptable to the Association.

In light of these provisions, the Association might have encouraged owners to voluntarily replace their sliding doors by identifying a provider willing to fabricate replacements at the lowest possible price. But, when their sliding doors became weathered or otherwise unattractive, owners who chose not to take advantage of this opportunity could still be required to replace those doors in a style that conformed to quality and aesthetic standards established by the Association.

 
We find no merit in defendant's cross-appeal for counsel fees. Plaintiff's claim was not frivolous, and we affirm for the reasons stated in Judge Visalli's written opinion of May 9, 2005. We likewise conclude that defendant's counterclaim was properly dismissed on summary judgment for lack of evidence. The record reflects that defendants were aware of the lien well before the closing and in fact their contract of sale included their agreement to pay the assessment under protest. Defendants have not cited to any record evidence to support their claims for trespass, conversion, malicious use of process, or interference with their right to quiet enjoyment of their property.

Affirmed.

(continued)

(continued)

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A-6741-04T5

April 25, 2006