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Breakwater Cove Condominium Association v. Chin

A-1420-09T3 (N.J. Super. App. Div. 2010) (Unpublished)

CONDOMINIUMS; PETS — Under New Jersey law, birds, reptiles or other animals that a person may lawfully keep in their home are domesticated household pets and pet restrictions in a condominium’s documents should be read liberally when those documents provide an exception for the keeping of household pets.

A condominium unit owner kept two African grey parrots as pets. The condominium association told the owner that she could not keep the birds because the association’s master deed said: “No bird, reptile, or animal of any kind shall be raised, bred, or kept in any Unit … except that dogs, cats, or other household pets are permitted, not to exceed two in the aggregate… .” She kept the birds, and the association gave her formal notice of suspension of membership privileges and imposed fines. Informal mediation between the parties was unsuccessful, and without initiating formal mediation, the association filed for emergent legal relief. The lower court process began with non-binding arbitration, in which the court ruled for the association, finding that parrots did not qualify under an exception for “household pets,” as all birds were prohibited under the restrictive covenant. Testimony followed in the summary judgment phase where the writer of the restrictive covenant testified that the position of the association was consistent with his intent as the writer of the document that no bird was permitted within the unit. The unit owner argued that the language of the covenant meant that all animals were prohibited, but for those that are kept as household pets. The owner also argued that the parol evidence rule prohibited the lower court from considering the writer’s testimony as to the intended meaning of the restrictive covenant. The lower court concluded that it was satisfied that “no birds” meant “no birds,” and found for the association, ordering the owner to remove the birds within 45 days and to reimburse the association for its costs and counsel fees. The motion to bar the writer’s testimony was denied. The owner appealed.

In that appeal, the Appellate Division reversed, finding that the restrictive covenant permitted “household pets” and that term is commonly understood to include birds. It held that restrictive covenants are treated as contracts, and a contractual term is ambiguous if reasonably susceptible of two meanings. In this matter, the Court found the restrictive covenant was readily susceptible to the unit owner’s interpretation, and the language of the covenant had to be evaluated from the perspective of a buyer of a condominium unit. It concluded that the master deed allowed the keeping of dogs, cats or other household pet as the term “household pet” was commonly understood. Under governing New Jersey law, birds, reptiles or other animals that a person may lawfully keep in their home are domesticated, household pets. Thus, the African grey parrots could be kept as a household pets.

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