Ramsey Berman: FAQ

No. The obligation to pay the monthly maintenance fees is not dependent on the association's quality of service or the association's perceived failure to fix a problem that affects a unit. Likewise, the homeowner cannot deduct from the monthly fee any money that they believe the Association should have paid but that the homeowner paid. However, if such a problem does exist that is the association's responsibility to repair, the association must still address it even if the homeowner is delinquent.

Pursuant to federal law, if a homeowner with a documented handicap requests permission to install a reasonable improvement to his particular unit to reduce the burden of his handicap, that homeowner should be advised to provide the details to the association and ultimately be allowed to install the improvement at his own expense. If, however, a handicapped resident has access to a public facility, such as the clubhouse that is open to the public, the association must make the facility handicap accessible at its expense.

Under the Federal Fair Housing Act Amendments (FHAA), an association must make "reasonable accommodations" in the application of its rules to allow a handicapped person full use of a dwelling. A recent decision by a federal court in New Jersey, held that the FHAA required a condominium association to provide a designated parking space to a unit owner, even though neither the Condominium Act nor the associations governing documents provided the board with the authority to allow a unit owner to exclusively utilize a portion of the common elements. The FHAA defines a handicap as any impairment of a major life function. Hence, a person who needs a cane to walk would, more likely than not, be considered "handicapped."

Yes, once an owner requests ADR in such an instance, the association must provide it even though it seems there would be no purpose to it. But the association is free to choose the type of ADR (mediation, non-binding arbitration, or binding arbitration) and the person(s) who is to act as the facilitator, as long as that person is not a board member and has no interest in the dispute. Hence, the association may select whatever procedure it believes will be most beneficial to the interests of the general membership and if the owner rejects the method selected by the board, the association has no further obligation to provide ADR.

This question poses one of the frequent scenarios in community association living where a healthy dose of common sense indicates the appropriate answer. While boards are obligated to enforce the community's rules, they are not obligated to pursue every technical violation of the governing documents. Here it is reasonable to conclude that the draftsman intended to prohibit uses that would negatively impact upon other owners or the common elements. Where a business use generates traffic, noise, truck deliveries or the like, it can be reasonably presumed that the restriction was intended to prohibit it. Where is does none of those, the board may use its discretion to conclude that such a business use is consistent with the definition of "residential use."

Pursuant to federal law, if the unit has a limited common element on which the satellite dish can be installed, the association must allow this installation. At this time, a condominium association has the discretion to determine whether or not a dish can be installed on the common elements. All associations should have established procedures in place regarding requests for the installation of satellite dishes that includes the turnaround time for approval, the required location and additional reasonable requirements that will be imposed.

No. Unless a contract specifically says that the closing date is "time of the essence" each party is required to close within a "reasonable" period of time from the contract closing date. While most New Jersey residential closings occur on or close to the closing date, it is extremely rare to find residential real estate contracts with a "time of the essence" provision. What constitutes a "reasonable" extension of the closing date depends on all of the circumstances surrounding the transaction, including the amount of time between the date the contract was entered into and the contract closing date. Where a party to a contract does not close by the contract closing date the other party may, under New Jersey law, send a "time of the essence notice" that sets a firm closing date. If either party does not meet that date they will then be in breach of the contract. In most instances a buyer or seller must provide a minimum of 10 days', and preferably 14 days' advance notice, to be certain that a court would enforce a time of the essence notice. Since the notice must contain very specific language, it should always be sent by the party's real estate attorney.

Under the law, silence is never deemed the acceptance of another party's position in a real estate transaction. Attorney review (see Hot Topics) can only be concluded when the attorneys for both parties agree in writing to the additional terms of the contract. Where a negotiation is dragging on for a lengthy period, the only effective alternative is to set a specific date by which all negotiations must be concluded, after which the offer will be withdrawn and the parties will be free to deal with others. Of course, such a position involves risk since a party may not really desire to terminate negotiations if the other party fails to respond.

As a result of a number of New Jersey court decisions, cases allowing a seller to keep a buyer's deposit monies - called "liquidated damages" - have been severely curtailed. New Jersey follows what is known as an "actual damages" rule. This means that the party who does not breach a contract can sue and recover for damages against the other party to the extent the damages can be proven in a court of law. But the deposit still serves a valuable purpose. If the buyer breaches the contract, the seller may have the escrow agent continue to hold the deposit until the seller ultimately re-sells the property and determines whether the seller has suffered any damages. If, after that process, the seller has not, the seller will be obligated to return the deposit. But, if the seller has suffered damages, the seller is entitled to keep the portion of the deposit that equals the damages and, if the buyer is unwilling to consent to a release of that portion of the deposit, the seller may pursue a claim in court. If the seller's damages exceed the amount of the deposit, the seller may seek the payment of the full deposit plus the damages that exceed the deposit, unless the seller has agreed, in the contract, that the seller's damages will be limited to the amount of the deposit.

Yes. Underground fuel oil storage tanks can be a potential liability for a seller even after the seller has sold the home. Although residential fuel oil storage tanks of less than 2,000 gallons are exempt from Department of Environmental Protection regulations, any leakage from a tank is not exempt. Furthermore, many municipalities have ordinances dealing with the abandonment of an underground fuel storage tank. If there is still oil in the tank there is the inevitable certainty that the tank will ultimately corrode and leak. If the tank was cleaned out, it still presents a liability since the tank may eventually collapse and present a danger to someone on the surface. In either case, there is a potential for significant exposure and the homeowner should either properly abandon the tank in place, or remove it in accordance with local regulations.

New Jersey has been one of the leading states in eliminating the old principal of caveat emptor ("buyer beware"). Over twenty years ago, New Jersey courts determined that anytime the seller was aware of a "material fact" concerning the habitability of a home, the seller was under a duty to disclose that to the buyer. More recent cases have expanded that duty so that the obligation to disclose is no longer strictly limited to matters concerning habitability but includes any matter that is significant enough so that it might reasonably be expected to impact a buyer's decision to purchase a home. In addition, courts have held real estate brokers responsible when there are any material facts that the broker or sales person knew or should have known and failed to disclose. Understandably, real estate brokerage firms now regularly make inquiry of sellers to alert sellers to their duty to disclose and to avoid liability.

New homes frequently require four to eight months to build, from beginning to end. If the foundation is not completed before the onset of freezing weather, it can take longer, as can custom homes due to the amount of finishing detail that they require. While many buyers desire newly constructed homes, and builders who wish to make a sale will often quote optimistic completion dates, you should be cautious if your builder suggests a time period shorter than indicated above. As a further indication of the uncertainty of completion dates - often due to unforeseeable weather conditions, delays in receiving materials, etc. - builders will usually not accept penalty clauses for late delivery. If your heart is set on new construction, discuss with your sale's agent the availability of short-term rental housing in the same locale, so you have back-up housing if the new home is not completed on time.

Always start with your Ramsey Berman attorney. If he or she is not the right person to answer the question, you will be directed to the right source. Given the maze of regulatory issues, environmental issues and other concerns, "simple" real estate closings can be rather complex. The successful navigation of these problems requires a team approach among your professionals, with your attorney acting as the "clearing-house." As a result, your attorney should be aware of all issues, and can best direct you to a solution.