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Aqua Beach Condominium Assoc. v. Dept. of Community Affairs, Bureau of Homeowner Protection

A-1413-02T1 (N.J. Super. App. Div. 2005) (Unpublished)

HOMEOWNER WARRANTIES—Claim of emergency or not, when, without permission from a court or from the Homeowner Protection Bureau, an owner repairs an item that it claims should be covered by the new construction warranty, it waives its claim.

A homeowners association sued the Homeowner Protection Bureau for repairs needed to correct structural defects in the common elements of its buildings. The Bureau contended that a percentage of the building units were not under warranty and disagreed with the extent to which the buildings were structurally defective. Prior to the conclusion of the proceedings in the lower court and prior to receiving approval from the Bureau, the association repaired the common elements in dispute, claiming that it was necessary to do since the defects posed a serious risk of injury, thus creating an emergency. The Bureau consequently argued that the association had waived its claim against it since the association began making repairs before obtaining the Bureau’s approval.

The Appellate Division agreed with the Bureau, holding that there was no proof that an emergency led the association to make the repairs without the Bureau’s permission, and that there was nothing arbitrary or unreasonable about the Bureau’s proceedings that frustrated the association’s ability to obtain authorization. The association neither applied for emergent relief pursuant to New Jersey statute nor did it notify the bureau or the lower court of the fact that an emergency required that repairs be made right away. Thus, the Court held that the association significantly contributed to the delay in obtaining authorization from the Bureau and found that there was nothing unfair or inequitable in denying the association’s claim.

Affirmed by New Jersey Supreme Court, 2006 WL 120142.

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