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Mayer v. Riverwalk at Clifton Condominium Association, Inc.

A-1599-03T5 (N.J. Super. App. Div. 2004) (Unpublished)

CONDOMINIUMS—New Jersey’s Condominium Act prohibits material alteration to common elements if not authorized by the master deed, but “materiality” is not measured by the cost of a proposed improvement; rather, it is measured by the function of the proposed improvement.

A condominium association’s board voted to build a playground on vacant common area between two buildings in the development. The owner of a condominium unit adjacent to the proposed playground opposed the plan. She claimed that the playground would disturb her peace, and that such a change to the common elements required two-thirds approval of the unit owners.

The lower court held that whether the unit owner’s peace would be disturbed was irrelevant, and that the central issue was whether the proposed change to the common area was authorized by the association’s governing documents. New Jersey’s Condominium Act prohibits material alteration to common elements if not authorized by the master deed. Thus, the question was whether installing a large piece of playground equipment constituted a “material alteration.”

The Master Deed barred the Board from spending more than fifteen thousand dollars on a capital improvement without approval from two-thirds of the unit owners. The board claimed that it was not required to get such approval because it was not going to spend more than fifteen thousand dollars on the equipment, and therefore the alteration was not material. The Court, however, decided that this provision of the Master Deed was inapplicable. It held that the “materiality” dealt with function, not cost. The lower court further held that the affected common element area was intended to be available for passive recreation, and not for installation of substantial playground equipment. According to the lower court, the playground would draw a substantial number of children with the potential for noise and disruption.

The Appellate Division affirmed the lower court’s decision. It agreed that adding the playground equipment constituted a material change. For this reason, the Court held that absent authorization pursuant to the association’s governing documents, the board was without power to act, and that authorization to transform the open common area into a playground could not be gleaned from a provision in the Master Deed that governed only the expenditure of funds.

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