DORIS BRESNOWITZ v. ESPY ROAD CONDO ASSOCIATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4660-10T2

DORIS BRESNOWITZ,

Plaintiff-Respondent,

v.

ESPY ROAD CONDO ASSOCIATION,

Defendant-Appellant.

________________________________

June 6, 2012

Submitted April 30, 2012 - Decided

Before Judges Parrillo and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

Docket No. SC-1186-11.

Steven H. Schefers, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

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 about 4:00 p.m. on Thursday April 8, 2010. It provides:

To all Unit Owners and Rental Tenants, Espy Road Condominium Association:

Please be advised that the Association's Board of Directors, acting in accordance with the governing documents of the Association, hereby denies parking usage to all but authorized vehicles in the lone parking space at the top of the entrance driveway, immediately to the left of Garage No. 1.

As you know, during the winter months, this area is reserved for the snow removal vendor to deposit plowed snow, and for all other times of the year the Board now opts to control this single parking space for its own purposes. (For example, there was a time when a dumpster was located there.)

To avoid situations whereby parked vehicles deny access to the parking lot by vendors, contractors, utility companies, delivery/moving vans, emergency services

vehicles, and others, this parking space is now off limits to all but those who have permission from the Association.

Unauthorized vehicles parked in this spot are hereby subject to towing, and their owners are subject to fines levied by the Association.

Questions and comments are always welcome. Please contact me at the address or telephone number below.

Thank you for your attention to this matter.

The washers and dryers were delivered on the evening of April 8, after the notice was placed in the mailboxes. Because plaintiff's car was parked in the restricted space, the delivery truck had to enter through the exit. Plaintiff's car was not towed that night, and there is no evidence that anyone left a message on her answering machine that night asking her to move her car.

Plaintiff returned home after the delivery, but does not recall whether she went to her mailbox that evening. She left for a business trip on April 9 and found the notice in her mailbox when she returned home on April 13. Before she found the notice, she had seen that her car was missing and called the police. She later discovered a message that the Association's management company left on her answering machine while she was away, warning that her car would be towed if she did not move it.

The Association presented testimony from plaintiff's neighbors to establish that she received notice on April 8. One neighbor admitted that she and plaintiff were "not very friendly" and the other admitted that he had been hired by the Association to paint the laundry room. By their accounts, at about 11:00 p.m. on April 8, plaintiff walked to the mailboxes in front of her building, retrieved her mail and looked at it before entering her unit. The Association also presented evidence establishing that plaintiff previously failed to claim letters from the Association that had been sent by certified mail, return receipt requested.

As noted above, plaintiff's challenge was limited to the reasonableness of the notice the Association gave before enforcing the new parking regulation. She conceded that the Board had the authority to prohibit parking in the newly restricted spot. The trial judge determined that plaintiff proved that the notice was insufficient by a preponderance of the evidence.

On appeal, the Association argues that the judge misread the bylaws to require the Association to give notice of and an opportunity to be heard at a meeting prior to the Board's adoption of a rule or regulation restricting parking. We agree that the bylaws require the Association to give advance notice of Association meetings, but they do not require that notice of Board meetings be given to anyone other than the trustees.

The Association's objection to the judge's reading of the bylaws is unavailing for two reasons. First, a provision of the Condominium Act, N.J.S.A. 46:8B-13, requires that unit owners be given notice of meetings at which a condominium board will take action to adopt or amend a regulation authorized by N.J.S.A. 46:8B-14(c). Second, the judge had several independent bases for entering judgment in favor of plaintiff, including the ground asserted by plaintiff absence of reasonable notice. We affirm on that basis.

There was no dispute that parking in the space at issue was permitted when plaintiff last parked there. The notice was not placed in her mailbox until 4:00 p.m. on April 8, and her car was in that spot when the truck driver delivering the washing machines arrived later that evening. The question is whether she had adequate notice that her car would be towed at her expense if she did not move it from that spot after the regulation was adopted.

Plaintiff testified that she did not find notice of the regulation in her mailbox until April 13, when she returned from a business trip that she took on April 9. Her car had been towed two days earlier, on Sunday April 11. Although witnesses for the Association testified that they saw plaintiff retrieve and look at her mail at 11:00 p.m. on April 8, the judge did not credit their testimony and explained why she found the witnesses to be less than impartial.

The judge noted that if the Association had phoned plaintiff on April 8 and advised that her car was illegally parked and would be towed, there would have been no need for the Association to tow it. While the judge did not mention the Association's bylaw governing enforcement quoted above, it is clear that the Association was required to demand that plaintiff cure her violation before acting to remedy the violation at her expense. If there was any urgency, it was when the washers were delivered on April 8. The Association could have addressed that urgency by calling plaintiff then, as the Association did days later, and demanding she move the vehicle because it was parked in violation of the recently adopted rule and would be towed. But that was not done.

A condominium association must act in accordance with its master deed, bylaws and the Condominium Act. See Thanasoulis v.Winston Towers 200 Ass'n, 110 N.J. 650, 656 (1988). In addition, board members must "act reasonably and in good faith in carrying out their duties." Papalexiou v. Tower WestCondo., 167 N.J. Super. 516, 527 (Ch. Div. 1979).

Accepting, as we must, the trial court's credibility determinations and the findings of fact that are supported by substantial evidence in the record, there is no basis for concluding that the judge was clearly mistaken in determining that the notice plaintiff was given prior to the towing of her car was unreasonable. Rova FarmsResort, Inc. v. InvestorsIns. Co. of Am., 65 N.J. 474, 483-84 (1974). Viewing the totality of the circumstances, including the absence of any evidence of urgency, the towing was not only done without reasonable notice of the new rule but also done in a manner inconsistent with the pertinent bylaw, which requires the Board to "send notice" demanding compliance before acting to cure a violation.

Affirmed.