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Dept. of Community Affairs, Bureau of Housing Inspection v. 122-128 Myrtle Avenue, Irvington

OAL Dkt. No. CAF 9605-02 (Department of Community Affairs 2004) (Unpublished)

MULTIPLE DWELLINGS—The exemption from housing inspection for certain multiple dwellings applies only to condominium units and cooperative apartments even though similarly constructed rental units remain subject to inspection.

The Bureau of Housing Inspection (BHI) inspected a four unit dwelling and issued an “Inspection Report and Orders of the Commissioner” reciting forty-eight violations of the Hotel and Multiple Dwelling Law (Act) and BHI’s Regulations for the Maintenance of Hotels and Multiple Dwellings. After a reinspection, the BHI found that violations remained.

The property owner contended that its property did not fall within the statutory definition of a “multiple dwelling,” pursuant to N.J.S.A. 55:13A-3(k). This section provides an exception for buildings containing not more than four dwelling units, provided: (a) the building has at least two exterior walls unattached to any adjoining building section; (b) the dwelling units are separated exclusively by walls of such fire-resistant rating as comports with the State Uniform Construction Code Act; and (c) the building is held under a condominium or cooperative form of ownership, or an owner occupies one of the units. The owner argued that it was exempt because its building only contained four dwelling units, the building had all four exterior walls unattached to other buildings, and the units were separated in accordance with the required fire resistant rating.

The Administrative Law Judge (ALJ) disagreed because the building failed to satisfy all parts of the exception. Even if the premises met the first conditions, it was not exempted from the definition of “multiple dwelling” unless the building was held under a condominium or cooperative form of ownership. The owner neither contended nor proved that its building was under such ownership, nor that any of the units were occupied by an owner. Therefore, The ALJ held that the premises fell within the statutory definition of a “multiple dwelling,” and concluded that the BHI had the authority to assure compliance with the Act. The ALJ also found that the owner had thus violated the Act by failing to comply with the Inspection Report and Orders of Commissioner. The Commission adopted the ALJ’s decision.

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