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The New Jersey Condo Blog

NO BANK ACCOUNT, NO EMPLOYMENT, NO PROBLEM

02/07/2017 Angela Morisco
 
Once a judgment for condominium arrears is entered and various post judgment enforcement remedies have proved unavailing to locate assets, i.e. there are no bank accounts in the debtor’s name and no employment information can be located, there is one more tool in the toolbox!

New Jersey Court Rule 4:59 - 1 (d) (1) permits a judgment creditor to file a motion for an order to sell real property where the judgment debtor's assets are insufficient or cannot be located. The Appellate Division recently reversed an order denying such relief where the lower court held that notice to the mortgagee was a prerequisite. The relevant consideration under the rule is whether the judgment creditor made reasonable efforts to locate personal property. If you have an unsatisfied judgment, this remedy may be available as an alternative to a lien foreclosure. This strategy has been effective to bring delinquent condominium owners to the table when no bank accounts or employment can be located.

Submitted by :  Angela M. Morisco, Esq.

01/12/2017 Martin Cabalar
Q&A: Disclosure of Tenant Information


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Q:        Does a condominium association board have an obligation to disclose information to an owner about an individual who is leasing a unit? If the lessee has a permanent guest with a criminal background does the board have an obligation to disclose this to the owner? 

A:        Typically, a condominium association in New Jersey would not have an obligation to disclose information to an owner about another resident who is renting a unit or is a guest in a unit. The New Jersey Condominium Act sets forth the duties of a governing board of a condominium association. With respect to disclosures, the Condominium Act specifically requires the association to maintain accounting records, in accordance with generally accepted accounting principles, open to inspection at reasonable times by unit owners. See N.J.S.A. 46:8B-14(g). Such records include (i) a record of all receipts and expenditures and (ii) an account for each unit setting forth any shares of common expenses or other charges due. The Condominium Act further states that the board shall have such other duties as set forth in the master deed or bylaws. N.J.S.A.46:8B-14(i). Therefore, unless the master deed or bylaws set forth disclosure obligations in addition to those above, there is generally no duty to disclose information with respect to tenants.

Nevertheless, the Condominium Act still requires the board to exercise its power and discharge its functions in a manner that protects and furthers or is not inconsistent with the health, safety and general welfare of the residents of the community. Thus, where there is a risk of foreseeable criminal harm, an association has an obligation to take reasonable action.  What that reasonable action may be depends on the particular facts. Therefore, the board must balance the possibility that any specific notice to other residents of the community may result in the resident that lawfully resides in the community being harassed by other residents, thereby creating a potential liability for the association. This is a very complex balancing act for the board and it should not be undertaken without the advice of the association’s attorney. 


It would be a rare case in which notice of past criminal history of a resident should be reported to the other owners in the community. That determination should be made in consult with the association’s attorney and consider the type of crime committed (such as whether the crime was violent in nature), the age of the person at the time the crime was committed, the length of time since the crime was committed, and the amount of time during which the person has not been subject to incarceration and has not committed another crime. Even where the decision to disclose such matters is made, the board should ensure that the notice is limited to purely factual matters. 

CondoMundoUSA

Votación Por Linea - Video

10/18/2016 Martica Miguez Platts



Si usted vive en una comunidad residencial que está dirigida u operada por una asociación, o si usted sirve en la junta directiva de la comunidad, quizás desee obtener la comodidad de votación por línea.   Nuestra firma de abogados acaba de lanzar un breve video de instrucción sobre nuestro producto por línea llamado BPBALLOT.   Dedíquele unos minutos a este video.
La votación por línea le permitirá a su comunidad aumentar la participación de su membrecía a la vez que reducirá la posibilidad de fraude electoral.  Estamos seguros que usted disfrutará y obtendrá beneficios del video.  Si tiene cualquier pregunta, por favor envíenos un correo electrónico a condomundousa@bplegal.como llámenos al 561-820-2870. 

Martica y Marilyn
Sus amigas de CondoMundoUSA






Estudio de Votación y Fraude en las Asociaciones / Community Association Voting and Fraud Survey

06/17/2016 Martica Miguez Platts
CondoMundoUSA les trae el Estudio de Votación y Fraude.  Este estudio tiene el propósito de identificar las preocupaciones relacionadas con el proceso de votación de los miembros de las asociaciones de comunidades.  Los resultados ayudarán a crear materiales educativos y ayudarán a encabezar cambios en las disposiciones legales que gobiernan el método de votación en las comunidades.

Solamente le tomará 5 minutos haga "click" en el idioma que prefiera. 

Español                       Inglés

Gracias, 

Martica y Marilyn


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CondoMundoUSA has created a survey intended to help identify concerns of community association members related to voting. The results will help create educational materials and help spearhead changes in statutory provisions governing voting in communities.

It should only take 5 minutes, please click on your preferred language.

Spanish                       English



Thank you, 


Martica & Marilyn

The Community Association Law Blog

Attention Boards: your two favorite menaces have combined: Airbnb and Pets!

02/06/2017 Donna DiMaggio Berger
Whether I am giving a presentation to hundreds of people, teaching a class to dozens of managers or meeting privately with a board of directors, the two issues that have come up without fail over the last few months are: Airbnb and Emotional Support Animals (ESAs) and other pet issues.

The questions I field on these topics usually sound like this:

"Our community is turning into a hotel. We have people coming and going at all hours and we have no idea who they are and, in addition to our security concerns, our recreational amenities are taking a beating."

"We are a no pet community but we have people bringing in more dogs each year and claiming they are emotional support animals. What about the people who bought here specifically because they do not want to or cannot live in close contact with dogs?

As a result of having recently rescued a dog from our local Humane Society, I have been searching for ideas to keep her from tearing down the house during working hours when she is alone. Lo and behold I cam across a site which advertised itself as "Airbnb for Dogs"! Oy. For a fee you can drop off your pet at a sitter's home but just imagine if that home happens to be inside a pet-restricted condominium or HOA? You get the best (or worst depending on one's perspective) of both violations!

With regard to Airbnb, VRBO, HomeAway and other similar sites, the ability to control your owners' engagement in this type of short-term rental activity depends largely on the provisions in your association's governing documents. If you were hoping your local government would help regulate this activity you should know that Airbnb is making that much more difficult by pursuing legislation which would restrict or prohibit a local government's ability to impact their business model which means your association is likely to be on its own when trying to regulate this behavior.  Attempting to pursue each violation as a violation of your minimum leasing requirements can be both costly and laborious given that each renal lasts only mere days. In my opinion, it is more effective to amend your documents to make the listing of properties in your community on these sites the violation rather than focusing on the rental term.

"But how can we tell if we have properties in our community listed on these sites before the guests show up?" you might ask.  Wherever there is a problem, a cottage industry designed to solve it cannot be far behind and the same is true here. There are now companies that exist which search these short-term rental sites each month to confirm whether or not there are units or homes in your community listed there. When those listings are found, your board can spring into action.

With regard to emotional support animal requests, I realize that you may question the truthfulness of many of these requests. You may even feel that the cards are very much stacked against a volunteer board of directors attempting to enforce reasonable pet restrictions.  This does not mean that associations need to rubber stamp all requests the receive. The best policy is to turn over these requests to a community association attorney who is highly experienced with requests for accommodations under the fair housing laws. This way, you can ensure, to the fullest extent the law allows, that any request for an exception to your pet rules is properly investigated and documented. Some people making false claims for fair housing accommodations will back off when asked to produce proper documentation while others are more intransigent and will proceed to acquire documentation off the internet without ever seeing a medical professional. It is also important to remember that there are individuals who are truly in need of an emotional support animal and are legally entitled to a reasonable accommodation.  Your job as a volunteer Board member or community association manager should be to work with your counsel to comply with the law and avoid the often significant penalties and costs associated with violating the fair housing laws while protecting the integrity of your pet restrictions.

The appeal of monetizing one's assets should really come as no surprise as that appeal is strong and there is no asset more easily monetized than a Florida getaway. For volunteer boards attempting to deal with a member's desire to do whatever he or she pleases with regard to occupancy of his or her unit, getting a handle on short-term rental activity and fraudulent ESA requests will certainly require the assistance of experienced counsel, a little ingenuity and a whole lot of patience.

For board members and managers in Florida who have more questions about this blog topic, you may reach me at dberger@bplegal.com or by phone at 954-364-6031.




Will Your Community Association be Sponsored by Advertisers Someday?

12/28/2016 Donna DiMaggio Berger
I read recently that some of our national parks in the U.S. are going to permit advertising in certain locations within the parks.  The reason for this move is ostensibly due to the appeal of millions of annual park visitors who spend many hours or days enjoying the natural beauty of these venues. Corporate America knows that a large captive audience provides the best opportunity to have a branding message resonate.  Despite the logic, to me some things should be off-limits, sacrosanct if you will.

The continuing trend to brand everything and carve out messaging on every available blank space has me thinking about the potential for advertisers to look inside private residential communities next. Many condominium and cooperative high-rises as well as large HOA communities already allow certain advertising activity such as cell phone towers and ads in their social directories and on in-house cable channels.  Most of that activity, however, is relatively unobtrusive and does not raise any eyebrows.  This could change if companies look next to large, private residential communities which contain hundreds or even thousands of residents along with the guests of those residents entering and exiting the community each day.  Can you imagine the potential for advertising, particularly in creative ways?

Some untapped areas might include:


  • Ads on the community bulletin board, association website, newsletter and other communication portals;
  • Ads on bus benches and other stops in communities with transportation systems;
  • Targeted sponsorship for certain recreational amenities or events. For example, the exercise room sponsored by LA Fitness, the Spring Picnic sponsored by Publix;
  • Signage at the community entrances and guard house;
  • Ads in the elevators, mail room, laundry facilities and other common areas.
Some larger communities in Florida and likely throughout the country are already experimenting with allowing more advertising involvement in their community's lifestyle. I have been to social events in client communities where portions of the event costs were defrayed by contributions from vendors who provide services to the community. I think more communities might consider these advertising arrangements if they were approached by companies to do so but up until now corporate America does not appear to have given much thought to the potential for community association advertising.

That might change and volunteer boards must decide in advance how to navigate these potentially risky waters.

Advertising inside your community might very well fall within the category of 'be careful what you wish for'.  It is important for community association boards to remember that they are typically operating not-for-profit corporations. As such, while certain sources of income other than the collection of assessments can be used to defray costs, they can also trigger tax consequences.  In Florida, boards can grant long-term easements so these kinds of advertising arrangements could be structured as easements which could prove difficult to vacate early if the association experiences buyer's remorse.  Boards considering such arrangements in the future would be well advised to consult with experienced counsel to discuss how long the initial term should be (a trial period would be best) and to craft sufficient disclaimer language advising residents and guests that the association is neither advocating for nor vouching for the advertisers in the community.

It is equally important to understand that once you start deriving revenue from a certain source, it is easy to become dependent on that revenue and therefore loathe to turn off its source.  While advertising is the fuel which drives the capitalistic engine, when it is used in a private residential community setting, the big question becomes whether such advertising will improve the quality of life in our communities or will it merely make it more difficult to seek refuge inside our previously tranquil communities.

Biz Law Today

What Is “Product Hopping” and Why Should You Care?

08/04/2015 Becker & Poliakoff

ThinkstockPhotos-97429646This post was authored by Ann Marie Effingham, an intern for Becker & Poliakoff who is based out of the firm’s Red Bank, New Jersey office.

New Jersey is home to 14 of the world’s 20 largest pharmaceutical companies so when our sister circuit—the Second Circuit Court of Appeals—issued a decision of first impression regarding pharmaceutical patents, we should take notice. To summarize, the state of New York brought an antitrust action against Actavis PLC claiming the manufacturer’s introduction of the once-daily capsule that treats Alzheimer’s disease at the end of the manufacturer’s patent exclusivity period for the twice-daily tablets impeded competition in violation of the Sherman Act. The Southern District of New York granted a preliminary injunction barring Actavis PLC from restricting access to the twice-daily version until after generic competition entered the market, and the Second Circuit Court of Appeals affirmed the injunction.

The Second Circuit Court of Appeals explained that neither product withdrawal nor product improvement alone is anticompetitive. However, when product withdrawal is combined with some other conduct—the overall effect of which coerces consumers and impedes competition—a manufacturer’s actions are anticompetitive under the Sherman Act.

The Actavis PLC case is an example of “product hopping”—whereby a manufacturer introduces a “second-generation” formulation of a drug and removes the previous formula that is nearing the end of its patent lifecycle which then restarts the regulatory approval process for the generic manufacturer. In theory, a manufacturer could keep reformulating its patented product if it can show that continuous improvement in the drug is being made. However, under some circumstances this type of behavior is anti-competitive. Generic manufacturers enter the market at the end of the brand name’s patent lifecycle so when a brand name manufacturer engages in “product hopping” it keeps generic manufacturers from entering the market—which could ultimately lead to a monopolization.

So what does this mean for the biopharmaceutical and medical device industry? The timing and rationale behind product reformulation is key. When product redesign is done simply to coerce consumers and impede competition, it is anticompetitive under the Sherman Act. The Second Circuit Court of Appeals noted that Actavis PLC’s own CEO admitted that the Defendants were “trying to . . . put up barriers or obstacles” to generic competition. Conversely, a large market share that is gleaned from natural growth, development of a superior product while simultaneously giving consumers the option of choice between products, or exceptional business acumen are all justifiable explanations for why a manufacturer may control a significant portion of the market.

A second product hopping case has arisen in the Third Circuit Court of Appeals. There, the Federal Trade Commission (FTC) has filed an amicus brief strongly supporting antitrust causes of action against companies that product hop. Hopefully the Third Circuit can provide more insight as to how to evaluate product hopping cases.

Employers Beware: You May Be Liable to Whistleblowers Without the SEC Ever Getting Involved

07/28/2015 Becker & Poliakoff

ThinkstockPhotos-184747120 (1)This post was authored by Peter Wojcik, an intern for Becker & Poliakoff who is based out of the firm’s New York office.

On June 17, the Second Circuit U.S. Court of Appeals heard oral arguments in Berman v. Neo@Ogilvy, LLC, making it the latest court to venture into the arena of interpreting Dodd-Frank’s whistleblower provision. In Berman, U.S. District Judge Gregory H. Woods of the Southern District of New York held that, before a whistleblower may be protected under Dodd-Frank’s whistleblower anti-retaliation provision, he or she must report securities violations to the SEC. This stands in stark contrast to other district court decisions that have allowed individuals to sue if they only disclosed the violations to their employers.

In Berman, the plaintiff alleged that he was fired after complaining to his employer about seeing transactions that he believed to violate U.S. securities laws, including Sarbanes-Oxley and Dodd-Frank. Never having reported these violations to the SEC, the plaintiff sued his former employer, alleging violations of Dodd-Frank’s whistleblower provision. The provision essentially prohibits an employer from retaliating against a “whistleblower” who:

  • Provides information to the SEC concerning violations of securities laws;
  • Initiates, testifies in, or assists in any investigation or judicial or administrative action of the SEC; or
  • Makes disclosures that are required or protected under the Sarbanes-Oxley Act and any other law, rule, or regulation subject to the SEC’s jurisdiction.

However, the provision also defines a “whistleblower” as “any individual who provides . . . information relating to a violation of the securities laws to the Commission . . . .” The plaintiff in Berman argued that he was entitled to protection because, although subsections (i) and (ii) protect disclosures to the SEC, subsection (iii) includes disclosures to supervisors. Judge Woods remained unpersuaded. In dismissing the plaintiff’s claim, Judge Woods noted that the provision’s language was clear: In order to be a “whistleblower” under the Act, the individual must provide the information “to the Commission,” i.e., the SEC.

District courts that have allowed Dodd-Frank whistleblower protection for individuals who report violations to their employers have essentially followed the plaintiff’s reasoning. Despite the plain language definition of a “whistleblower” under the statue, they have held that subsection (iii) is a narrow exception to the definition and encompasses protection for individuals who report to supervisors.

The Second Circuit is expected to hand down its decision later this year. Although the Fifth Circuit is the only circuit to already decide the issue (holding that whistleblowers must report violations to the SEC in order to sue), district courts across the U.S. are in disagreement. Regardless of how the court in one’s jurisdiction rules, however, the law is still subject to change. If courts continue to disagree, it is likely that the Supreme Court will take up the issue in the future. Until the High Court decides the issue, employers must be aware of the fact that they may be subject to liability under Dodd-Frank’s whistleblower provision once their employees report violations internally.

Florida Construction Law Authority

Keeping ‘Green’ Contracts Clear

02/21/2017 Mark J. Stempler

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The green building industry is arguably more popular than ever. The number of certified green buildings grows every day across all sectors of the building industry. Unfortunately, the contracts for sustainable projects are sometimes behind the times. Standard construction contracts are often not tailored to address the numerous issues and nuances that may come up on sustainable projects. This potentially puts all contracting parties at greater risk of uncertainty if disputes arise on the job site. Preparation on the front end of a green building is usually the best way to alleviate problems later on, and it starts with the contract. This is true whether the project is one for new construction or for renovations or retro-fitting.

First, the contract should be as clear and specific as possible about what the green goal is. Simply using terms like “green building,” “sustainable building” or “high-performing building” are not enough, because it is unclear what the precise goal is. For example, the goal may be to reduce electricity costs, and the owner may have a specific energy saving cost or usage goal in mind. That should be identified in the contract. In addition, an owner may require a third-party green rating certification. That could mean LEED certification, but LEED alone has multiple levels. Or, it could mean Green Globes, the WELL Building Standard, or a handful of other third-party rating agencies. If so, then specificity is needed. If the goal is not achieved, there will be no confusion as to what the goal was. Related to this issue is which party will bear the costs for certification fees, inspections and tests that may be necessary to the green certification. Again, this is best addressed in the contract.

Second, the contract should reflect who is responsible for achieving the project’s green goals. That might be a design professional like the architect or an engineer. Or it may be general contractor, sub-contractors, suppliers, a sustainability coordinator or a combination of construction professionals. Each segment of the construction project should be aware of what responsibilities it is undertaking in the green building process. The person or entity that is responsible also may want to get paid more for taking on the added risk.

Making Guarantees

All contracting parties should be aware of what guarantees they are making or receiving in terms of sustainable performance or certification. For instance, if a contract requires LEED Gold certification, but the final product does not achieve that, the contract should be clear about what the repercussions are. Similarly, the contract can address what happens when a component such as a solar energy system or a HVAC unit does not achieve the level of performance a contractor or otherwise represented.

An alternative to a guaranty is a performance bonus or bonuses based on the certification or performance levels achieved. In other words, a contract will describe a base fee for services on the project and then allow for additional compensation depending on the level of certification the building gets or based on the level of performance of the building after occupancy. This is helpful because it can be difficult to guaranty these levels on certain projects. Green building warranties may also be provided, but carry greater obligation or risk to the warranty provider.

The parties can also tie final completion benchmarks to the achievement of the sustainable goal, depending on the type of project. Money may be held back on a project pending the receipt of the green rating. However, when a rating will be bestowed by the rating agency is not always certain, and cannot be entirely controlled by the contracting parties.

A contract can also address the types of damages that may be obtained if the project fails to achieve the agreed-upon sustainability goals. For example, if the purpose of building green was to achieve certain tax credits, and those credits

are not achieved, they may become the measure of damages. Damages may be more difficult to ascertain in other performance metrics. Contracting parties may also want to consider capping those damages, or setting forth a method to measure them.

When it comes to green building contracts, there is no one size that fits all. Goals, methods, specifications and components can greatly vary. However, all parties involved in a sustainable building project have added incentive to consider and address the unique issues that may appear. Reliance on the standard building contract may not suffice. If the issues are not properly addressed upfront, the chances for dispute and litigation will significantly increase. As the old saying goes, an ounce of prevention is worth a pound of cure.

Mark J. Stempler is a Florida shareholder with the law firm Becker & Poliakoff. He is board certified in construction law, is certified as a LEED Green Associate and focuses his practice in the areas of construction litigation, government law, and civil litigation. He may be reached at mstempler@bplegal.com.

Getting Started with Public Bidding

11/11/2015 William J. Cea

Do you provide goods or services that public agencies purchase? Do you want to pursue public contract awards? Do you know how to get started? These are questions that you may have asked yourself. If you are looking to bid on public contracts, then there are some steps that you can take to put a plan into action.

First, you should identify public agencies that need your goods and services. Some agencies may have purchasing cycles for particular goods and services and knowing when those opportunities will be advertised is critical. Most agencies maintain websites with links to their purchasing departments and/or purchasing procedures. They may also have representatives that can provide guidance on doing business with the agency and whether there are any registration or pre-qualifications requirements. The websites may also list the pending advertisements and bidding deadlines. Prior to contacting an agency, however, be mindful that there may be cones of silence or other restrictions on who you may speak with to get information about a particular contract. There are also private companies that compile bidding opportunities that you may be able to subscribe to.

Once you have identified a public agency that is in need of your goods or services, then make sure that you can meet the agency’s standard contractual terms and conditions. These would include the types of licensure, insurance, bonding, and payment terms, for example, that the agency may require for its contracts and purchase orders. After you know what agencies need your services, and that you are prepared to meet their standard terms and conditions, you have to be prepared to submit a responsive bid by whatever submittal deadline is established by the advertisement. A responsive bid is generally defined as one that conforms in all material respects to the requirements of the solicitation. For example, it is important to provide all  of the required information, price terms and bid forms required by the agency. Dotting the i’s and crossing the t’s is critical when it comes to submitting a bid to a public agency.

Public procurement is a highly specialized area of the law and each contract advertisement and award must be reviewed on a case by case basis. To optimize your chances of success, it is important to carefully review each and every advertisement and to make sure that your bid conforms to the specific requirements. Clerical oversights may be the difference between landing a profitable contract and rejection. For specific questions and concerns with respect to bidding on a particular contract or award related challenges or “bid protests”, legal counsel should be consulted as early in the process as possible.

Florida Condo & HOA Law Blog

Florida Condo Associations Cannot Waive Year-End Audits for More than Three Consecutive Years

02/24/2017 David G. Muller
Question: Our annual budget is always over $500,000 and requires a year-end audit unless waived by the owners, which I understand cannot be done more than three consecutive years. Is there a penalty and what could happen if the association obtains owner approval to waive the audit for more than...

This is a summary only. Visit http://www.floridacondohoalawblog.com or click the post title for the full entry.

Departing Condominium Board Member Must Relinquish Keys Within Five Days

02/23/2017 David G. Muller
Question: Recently, our association’s president resigned and took a job with our management company at another complex. While our office manager was on vacation this former president was in her office for a few hours. If he resigned doesn’t he have to turn in his key to the office. He has no...

This is a summary only. Visit http://www.floridacondohoalawblog.com or click the post title for the full entry.