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Lomolino v. Errico

A-6574-96T3 ( N.J. Super. App. Div. 1998) (Unpublished)

CONDOMINIUMS; DAMAGES—Even if a condominium developer is later relieved of a municipal obligation, it may be statutorily liable to unit owners for damages if it didn’t disclose the obligation in its offering materials and doesn’t remedy a dangerous condition that the obligation was intended to cure.

A property owner developed condominium townhouses. The variance it obtained made reference to a set of retaining walls. In order to develop the land, blasting into adjacent cliffs was required. Each townhouse unit had a rear deck that extended toward the base of the remaining cliff. A wooden planter was installed at the base of the cliff to catch falling rocks. After moving into a unit, one of the unit owners discovered what she described as a “continual situation” of rocks of different sizes coming down from the cliff and landing on the patio deck. The unit owner reviewed the project’s original site plans and approval resolutions and found that the variance was subject to various approvals, including the retaining walls. Subsequently, the municipality’s enforcement bureau cited the developer for an unsafe structure, but pursuant to a subsequent settlement, the municipality’s zoning board approved an amendment to the original site plan, substituting a wire mesh retention system for the retaining wall. The unit owner sought relief in the courts and the developer was found to be in violation of both the Planned Real Estate Development Act and the Consumer Fraud Act, notwithstanding that the developer had obtained revisions to the conditions that were imposed with the original variance. According to the Court, the developer was required under the original approvals to build the retaining walls. Its failure to do so, and failure to reveal the condition in its marketing materials, constituted a violation of both Acts and did not merely constitute a breach of implied warranties of fitness for intended use or of habitability. Consequently, the unit owner received a small amount on account of damages (which was then trebled), but also received a substantial award of attorney’s fees.


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