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Greenhouse Condominium Association, Inc. v. Silverman

2005 WL 1593602 (N.J. Super. Ch. Div. 2005) (Unpublished)

CONDOMINIUMS; LIMITED COMMON ELEMENTS — Under the New Jersey Condominium Act, limited common elements are owned and controlled by the condominium association and their use by unit owners is subject to association rules.

A married couple owned a penthouse apartment in a condominium building. The building contained numerous terraces, all of which were “limited common areas” under the condominium’s master deed. The couple was permitted to use a terrace, adjacent to their apartment, on which they placed amenities such as a fountain, potted trees, and a platform. When the condominium association sought to replace the roof of the building, the couple’s items had to be removed from the terrace. The association sent a letter to them requesting that they remove their personal property so that work could begin on the roof. The couple refused, asserting that it was the association’s duty to remove them. The parties could not reach an agreement and, as a result, the association sued the couple to compel them to remove the items from the terrace.

The Court held that the couple was responsible for removing the items from the terrace. In reaching its conclusion, it discussed the provisions of the New Jersey Condominium Act. The Act defines areas that unit owners share in common as “common elements.” Examples of common elements are common hallways, stairs, elevators, and surrounding land. Under the Act, there is a special category of common elements called “limited common elements.” Limited common elements are common elements which are for the use of one or more specified units to the exclusion of other units. Examples of limited common elements are parking spaces, garages, and as in this case, terraces. Under the Act, common elements are owned and controlled by the condominium association. In applying these principles, the Court found that a unit owner’s use of an area designated as common element subject to the paramount ownership rights of the condominium association. In this case, it found that the couple’s use of the terrace was subject to the ownership rights of the condominium association and regulations imposed by it. The Court held that the regulations imposed by the condominium association with respect to the common elements must be reasonable. It found that in this case, the regulations regarding terraces being imposed by the association were reasonable. As a result, it concluded that the couple was responsible for the removal of the items from the terrace because they placed the items on the terrace without the consent of the association as required pursuant to the master deed. It further found that it was implied from the master deed that unit owners would remove items from the terraces in the event repairs needed to be performed.

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