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Ritz Condominium Association, Inc. v. Thomas

A-0021-10T3 (N.J. Super. App. Div. 2011) (Unpublished)

CONDOMINIUMS — Absent a showing of bad faith or the presentation of a genuine and material issue of fact, a unit owner cannot successfully challenge a condominium board’s determination that an emergency condition exists and that an emergency assessment is needed.

A condominium association hired a consulting engineer to inspect and report on the condition of a pool deck and steel supporting structure at the property. Based upon his reports, the association’s board closed the pool. Later, the engineer opined that portions of the structure were so damaged that there was a danger of imminent collapse and recommended that the entire pool be demolished and replaced. The board unanimously approved the emergency pool project and assessed the membership for the cost.

One unit owner did not agree that there was a genuine emergency to justify the emergency assessment and did not pay the assessment. The association sued to collect the outstanding assessment. The unit owner filed a motion to dismiss, and the association filed a cross-motion for summary judgment, seeking the assessment plus counsel fees pursuant to the condominium’s bylaws. The lower court granted the association’s motion.

On appeal, the unit owner argued that there were genuine and material issues of fact, specifically as to whether an actual emergency existed. However, in affirming, the Appellate Division noted that the unit owner was required to present competent affirmative evidence and show that there is a genuine issue for trial. In addition to failing to present any competent evidence to challenge the engineer’s opinion, the unit owner failed to present any evidence to show bad faith on the part of the board in concluding that an emergency existed.

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