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Milides v. Brielle Landing Condominium Association, Inc.

A-292-99T5 (N.J. Super. App. Div. 2000) (Unpublished)

CONDOMINIUMS; COMMON AREAS—Alterations made by a unit owner, even those made without association permission, must be viewed by the association under a rule of reasonableness where the alterations make no substantial impact on the property as a whole or on the rights and expectations of the other unit owners.

A condominium unit owner, without seeking permission from the condominium association, hired a contractor to lay ceramic tile on his exterior wooden deck. The tile was laid in an effort to eliminate rainwater which previously had puddled and run toward the unit. When the association learned of this tile work, it wrote to the owner advising it that the deck should not have been tiled without prior, written permission from the association and that the owner would now be held responsible for any damage or repairs related to the tiling. The owner responded that it was unaware of the prohibition against tiling and that it would assume all responsibility for the decking. Approximately one month later, the association wrote a second letter to the owner requiring it to remove the tiles within 30 days. When the owner refused to remove the tiles, the association began imposing daily fines and filed a lien against the unit. Unable to reach a settlement with the association, the owner filed suit in the Chancery Division seeking vacation of the fines and the lien. The association counterclaimed, seeking restoration of the deck to its original condition and payment of the accumulated fines. The lower court held that the alteration to the deck was neither material nor substantial and the association’s basis for requiring removal, (that the owner failed to obtain approval for the tiling work,) was unreasonable. The court held that “where an alteration is made to a limited common element without prior permission and that alteration has no substantial impact on the condominium property as a whole or on the rights and expectations of all other unit owners then the condominium association’s response to that alteration must be guided by the rule of reasonableness.” The court ordered vacation of the fines and discharged the lien. The association appealed, but the appellate division found sufficient credible evidence in the record to support the lower court’s holding, even though the owner should have sought the association’s prior permission.

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