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Society Hill at Jersey City II Condominium Association, Inc. v. Julien

A-7087-97T1, (N.J. Super. App. Div. 1999) (Unpublished)

CONDOMINIUMS; DISPUTE RESOLUTION—Where an association failed to provide a required alternative dispute resolution procedure, it was denied an award of attorneys fees even though its success in a court action would otherwise have permitted such an award.

A condominium association, upon discovering that a unit owner was installing a fireplace without the association’s approval, obtained a temporary restraining order to stop the work. In fact, however, the work had stopped the day before issuance of the Order. The dispute was subsequently resolved, but the association sought counsel fees pursuant to its By-laws. Those By-laws provided for counsel fees upon a failure to comply with its sections governing the common elements, including where injunctive relief is required. Although the lower court initially awarded counsel fees, upon reconsideration, it revoked the award based upon that section of the By-laws that required the use of alternative dispute resolution. It held that because the By-laws required an alternate procedure to litigation for resolution of disputes, there would never have been a law suit if the parties used that procedure, and therefore that the litigation had been unnecessary. The Appellate Division “wholeheartedly” agreed with the lower court because of its feeling that an award of counsel fees would defeat the entire purpose of allowing for alternate dispute resolution in lieu of litigation.


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