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Smolen v. Belcourt at Hidden Lake Condominium Association, Inc.

A-5207-01T5 (N.J. Super. App. Div. 2003) (Unpublished)

CONDOMINIUMS; COMMON ELEMENTS—A branch of a water line that passes through common areas and under other units is still a common element even though the branch serves only one unit.

At a residential condominium complex, a water line branched off from the main water system in the street and continued to an individual owner’s unit, going under common areas and other foundations. The break was caused by “the growth of a tree root originally planted by the developer and now maintained by the Association as a common element responsibility.” The tree had been properly maintained.

The association did not consider the pipe to be common element. The unit owner therefore repaired the pipe and sued the association for the cost. “No other unit was affected by the repairs or otherwise had [its] water service interrupted.” The Court looked at both the Condominium Act and the Condominium’s master deed. Under the statute, “common elements” means a number of things including “installations of all central services and utilities, ... [and] such other elements and facilities as are designated in the master deed as common elements.” The master deed said that no pipes that “were not removable without jeopardizing the soundness, safety or usefulness of the remainder of the building, shall be deemed to be part of any Unit.” Therefore, under both the statutory definition and the master deed’s language, “the water pipe servicing the [Unit was] a common element.” It was “an extension of the water system servicing the multi-unit building.” It could not be removed without jeopardizing the remainder of the building. The lower court distinguished this pipe from an oil tank that served only one unit as described in a 1997 case pointing out that the only reason “the break in the water line became an issue in this case, [was] because the damage to the water line was after the point at which the water line separated to the line that went only to the [particular] unit. After the point where the break occurred, the water line ran underneath a number of other units before entering [this particular] unit.” The affected unit owner had no right to enter any of the other units and had the break occurred under the floor of one of those units, only the association could have made the necessary repairs. With that analysis, the Court held that the water line in question was a common element.

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