Community Association Law

The ABCs of Mandatory ADR for New Jersey HOAs

Ansell Grimm November 8, 2024

For homeowners and condominium associations (“Community Associations”), disputes among owners or between owners and boards are as inevitable – and undesirable – as special assessments. They can lead to tension and hostility and, if not handled properly and diplomatically, can metastasize into costly and disruptive litigation that leaves a sour taste in everyone’s mouth.

New Jersey law recognizes that such conflicts are bound to happen and that litigation is rarely, if ever, the most productive way to resolve such issues. That is why both the New Jersey Condominium Act, N.J.S.A. 46:8B-1 et seq., and the Planned Real Estate Development Full Disclosure Act (“PREDFDA”), N.J.S.A. 45:22A-21 et seq., require that Community Associations provide a “fair and efficient” alternative dispute resolution (ADR) mechanism for unit owners to resolve “housing-related” disputes between each other or with the board.

Specifically, as stated in Section 14 of the Condominium Act (and in parallel language in PREDFDA):

An association shall provide a fair and efficient procedure for the resolution of housing-related disputes between individual unit owners and the association, and between unit owners, which shall be readily available as an alternative to litigation. A person other than an officer of the association, a member of the governing board or a unit owner involved in the dispute shall be made available to resolve the dispute. A unit owner may notify the Commissioner of Community Affairs if an association does not comply with this subsection. The commissioner shall have the power to order the association to provide a fair and efficient procedure for the resolution of disputes.

Importantly, a board must participate if an owner requests ADR based on a housing-related dispute. However, while a board must make ADR available to quarreling owners, a unit owner cannot compel another unit owner to participate in ADR.

What Is a “Housing-Related” Dispute?

Community Association boards are not expected to be clearing houses for every possible gripe and grievance a unit owner has. Instead, as noted, the mandatory ADR procedures that boards must establish are only applicable and available to resolve “housing-related” disputes. Citing New Jersey public policy that favors arbitration over litigation whenever possible, courts have interpreted that term broadly, though not limitlessly.

In Bell Tower Condo. Ass’n v. Haffert, the court stated that “the term ‘housing-related disputes’ signifies that only disputes that arise from the parties’ condominium relationship are subject to the arbitration provisions” of the law. It noted several examples of matters that fall outside that definition, including:

An auto accident in the condominium parking lot;
A commercial dispute arising from a failed business venture between two unit owners;
A palimony claim asserted by one unit owner against another;
A legal or medical malpractice claim against another unit owner;
A crime or disorderly persons offense committed by one owner against another; or
Any other dispute that does not arise directly from the parties’ condominium relationship.

What Does Providing a “Fair and Efficient Procedure” Mean?

To satisfy the ADR requirement, boards can offer either mediation or arbitration. Both processes are overseen and conducted by an unbiased neutral third party who has no personal stake in the outcome. As such, neither the board nor any of its agents or employees can act as the neutral third party.

In a mediation, the neutral cannot impose a resolution on the disputing parties but can only work with them collectively and individually to bridge their differences and hopefully reach an agreed-upon solution. In an arbitration, the parties grant the neutral the authority to decide how the matter should be resolved.

The neutral third-party arbitrator reviews evidence, hears arguments from the parties, and hears testimony from witnesses. Though the rules of evidence and procedure are typically less stringent than at a trial, they are often similar to those of a case tried in a court of law. Arbitration can be binding or non-binding.

What ADR Can’t Do

ADR is not a means to secure an order to stop a board from taking action or to force a board to act. That kind of relief can only be obtained through appropriate court proceedings. Similarly, ADR is not the means to obtain monetary damages against an association.

Additionally, matters within a board’s legitimate discretion are not subject to ADR because a court will not substitute its judgment for that of a board. Only alleged violations of governing documents or other legal obligations can be the subject of an ADR demand against a board.

If your Community Association board needs assistance or guidance regarding its ADR policies, programs, and procedures, please contact Nicole Miller or Elysa Bergenfeld at Ansell.Law.

Ansell.Law Welcomes Catherine Brennan

Ansell Grimm September 27, 2024

Ansell.Law is pleased to announce that Catherine M. Brennan has joined the Firm as a partner in the Community Association Department. She brings extensive experience representing homeowners associations, condominiums, and cooperative communities, enhancing the capabilities of the thriving practice.

With a strong background in litigation and advisory roles, Brennan will supervise and carry out the Department’s litigations, including lawsuits filed by clients, and defend those clients and their board members against lawsuits filed by others. Throughout her career, she has deftly navigated this legal area’s complexities, guiding clients on governance, dispute resolution, community transition, construction defects, and regulatory compliance matters.

“Cathy’s depth of knowledge across all facets of community association law is spectacular,” said Partner and Community Association Department Chair David J. Byrne. “A gifted litigator and counselor, we’re thrilled to have Cathy on our team.”

Before joining the Firm, Brennan amassed three decades of commercial litigation experience through her work at prominent national and regional law firms. She is based in Ansell.Law’s Princeton office.

In Victory Obtained by Ansell.Law’s Community Assoc. Attorneys, Court Rules Non-Disabled Husband of a Disabled Condo Owner Has No Separate Law Against Discrimination Claim

Ansell Grimm September 26, 2024

Every community association board in New Jersey needs at least a basic working understanding of the state’s Law Against Discrimination (LAD). LAD is most relevant to community associations in concern of residents who claim to be disabled. In this regard, LAD may require community associations to make “reasonable accommodations” in that community’s rules when that accommodation is necessary to afford the resident equal use and enjoyment of his dwelling.

However, as illustrated by a significant victory recently obtained by Ansell.Law’s David Byrne and Nicole Miller, the protections and rights that LAD provides to disabled individuals are not transferable. Specifically, in Player’s Place II Condominium Association, Inc. v. Pozniewski, et al., the Superior Court held that a disabled resident’s non-disabled spouse does not have a LAD claim because he may have been negatively impacted by the alleged discrimination against the disabled individual.

Ansell.Law represented the condo association with respect to its handling of or its dog-related rule in connection with a disabled resident. The resident sought an entitlement with respect to her dog, that the resident characterized as an emotional support animal (ESA).

After Ansell was successful at trial, the litigation ended up before the New Jersey Supreme Court. In its opinion, the Supreme Court discussed the issue of ESAs in New Jersey condominiums generally:

“A resident of a condominium complex is entitled under state and federal law to request an accommodation to a pet policy in order to keep an emotional support animal. The individual must first demonstrate they have a disability under the LAD. In addition, they must show that the requested accommodation may be necessary to afford them an ‘equal opportunity to use and enjoy a dwelling.’ The housing provider then has the burden to prove the requested accommodation is unreasonable.”

Even though he is not disabled, the disabled resident’s spouse also sought money in relation to LAD. However, the spouse’s LAD claim was not based on anything related to him. It rested entirely on his wife’s LAD claim. The spouse suffered no actual, personal harm concerning anything contemplated by LAD.

Following the Supreme Court decision and on behalf of the association, Byrne and Miller filed a motion for summary judgment as to the spouse’s LAD claim. The Superior Court granted that motion. The court agreed with the association that the LAD is not applicable to him. Additionally, the court concurred that just because a spouse, sibling, or parent may be “sorely distressed” by discrimination suffered by their family member, that distress does not make the spouse the functional equivalent of an aggrieved person who can bring a claim under LAD.

If you have any questions about this decision or how LAD applies to your New Jersey community association, please contact Nicole Miller or David Byrne at Ansell.Law.

Recently Filed Federal Lawsuit Seeks To Exempt Community Associations From the Corporate Transparency Act’s Mandatory Reporting Requirements

Ansell Grimm September 13, 2024

By Nicole D. Miller

As we discussed here, starting January 1, 2025, most existing homeowner and condominium associations (Community Associations) in New Jersey, and across the country, will be considered “reporting companies” that must comply with the extensive, detailed, and complex reporting requirements of the federal Corporate Transparency Act (CTA). Unless an association falls within one of the act’s 23 enumerated exemptions (and most don’t), the governing board members (Board) must provide “Beneficial Ownership Information” (BOI) to the Financial Crimes Enforcement Network (FinCEN) division of the U.S. Treasury Department by designated deadlines. Failure to comply with the CTA can result in substantial fines and penalties, including incarceration.

For boards composed primarily of volunteer homeowners, and associations with already stretched resources, sharing and reporting sensitive personal information to the federal government while parsing the language of a confusing and ambiguous statute presents significant burdens and challenges. This is why, on September 11, 2024, the country’s largest community association advocacy organization filed a federal lawsuit challenging the constitutionality of the CTA, seeking to exempt associations and boards from its reporting requirements, and seeking a preliminary injunction against its enforcement as to Community Associations and Boards. The motion hearing for the preliminary injunction is currently scheduled for October 11, 2024.

The lawsuit filed by the Community Associations Institute (CAI) against the United States Department of the Treasury in the U.S. District Court for the Eastern District of Virginia asserts that the CTA imposes excessive administrative and financial burdens on the more than 75.5 million Americans living in 365,000 community associations across the U.S.

In a press release, the CAI’s chief executive officer, Thomas M. Skiba, said, “Requiring community associations to comply with the Corporate Transparency Act not only diverts resources away from community governance and service but also poses a chilling effect on volunteerism. We are asking the court to recognize the constitutional violations, overreach of federal powers, and equal protection violations related to the Corporate Transparency Act and community associations.” However, CAI has stated that if the lawsuit is successful in exempting Community Associations from the CTA, “it is very possible the exemption will only apply to community associations that are members of CAI” given the decision in National Small Business United v. Yellen, which was discussed here.

Until and unless the court issues an injunction against enforcement of the CTA regarding community associations, boards must take steps to comply with the law’s reporting requirements by the following deadlines:

Associations formed during calendar year 2024 must submit their BOI report within 90 days after the date of the entity’s formation (i.e., the filing date of its Articles or Certificate).
Associations formed before January 1, 2024, must submit their BOI report on or before January 1, 2025 (one year after the effective date of the CTA).
Associations formed on or after January 1, 2025, must submit their BOI report within 30 days after its date of formation (i.e., the filing date of its Articles or Certificate).

If you have any questions about the CTA and its impact on Community Associations, please contact Nicole Miller at Ansell Grimm & Aaron.

Freedom From Clutter v. Freedom of Expression: What NJ Community Association Boards Can and Can’t Do About Political Signs This Election Season

Ansell Grimm September 12, 2024

By Nicole D. Miller

Labor Day 2024 has come and gone, which means that after a summer of dramatic developments, the final sprint to Election Day is here. It also means citizens in New Jersey and across the country will be more engaged in the political process and want to ensure their voices are heard. In addition to the ballots they cast, voters often like to declare their political preferences, and support their preferred candidates, by posting signs in their yards, windows, balconies, or other highly visible areas. Doing so is the essence of free speech as protected by the First Amendment to the U.S. Constitution and New Jersey’s Constitution. As the U.S. Supreme Court has said, political signs on one’s property are “a venerable means of communication that is both unique and important.”

But for New Jersey community associations, election season presents unique and tricky challenges that pit the covenants and rules that all owners agreed to abide by with their right to political expression. When owners display signs and other items that, on their face, appear to violate the rules and limitations outlined in the covenants, conditions, and restrictions (CC&Rs) that govern their community, it can add fuel to an already combustible political environment, leading to conflicts and lawsuits between boards and owners.

New Jersey’s Free Speech Protections Are Broader Than the First Amendment’s

No specific statutes govern or delineate the power of New Jersey community associations to ban or limit the size, number, and placement of political signs. Additionally, the First Amendment only limits the ability of government actors to restrict free speech. Since community associations are not government entities, the First Amendment doesn’t govern the actions or policies of community associations as to political signs.

However, New Jersey’s constitution is unique in that its free speech protections go further than the First Amendment and do not just apply to the government. As New Jersey’s Supreme Court noted in its decision in Mazdabrook Commons Homeowners’ Ass’n v. Khan addressing the conflict between CCRs and the constitutional right to free expression, ” an individual’s affirmative right to speak freely is protected not only from abridgment by government, but also from unreasonably restrictive and oppressive conduct by private entities in certain situations.”

In that same case, the Court declared that a community association’s total ban on signs of any kind, other than “For Sale” signs but including political signs, “violates the free speech clause of the State Constitution.”

Reasonable Time, Place, and Manner Restrictions on Political Signs Are Permitted

Short of a total ban, courts in New Jersey have generally upheld the authority of community associations to enforce reasonable restrictions on political signs, provided these restrictions are: (i) clearly outlined in the governing documents; (ii) content-neutral; and (iii) applied uniformly. For instance, New Jersey courts have recognized that community associations have a legitimate interest in maintaining the aesthetic appearance of the community, which can justify certain restrictions on the display of political signs. However, these restrictions must be reasonable and not so broad as to effectively prohibit all forms of political expression.

One solution some New Jersey community associations have embraced is implementing rules that allow for the display of political signs but impose certain limitations. For example, an association might allow residents to display one political sign per candidate or issue, with restrictions on the size and placement of signs. This approach seeks to balance the homeowner’s desire for political expression with the association’s interest in maintaining an attractive, cohesive community environment.

If your community association board is facing an issue involving an owner’s display of political signs or has questions about its power to restrict such signage, please contact Nicole Miller at Ansell.Law.

Amendments to New Jersey’s Open Public Records Act May Prejudice Those Involved in Legal Disputes and Undermine the Law’s Purpose

Ansell Grimm September 4, 2024

By David J. Byrne and Nicole D. Miller

Every level of government possesses a treasure trove of information. Each New Jersey municipality and state agency is supposed to keep copious records relating to things like interactions with the public, police reports, permit applications, zoning variance requests as well as internal documents reflecting governmental decision-making. For many, many years, by virtue of New Jersey’s Open Public Records Act (“OPRA”), some of those records have been open to the public.

Recently, New Jersey’s legislature amended OPRA. Unfortunately, those amendments may make it much harder for parties anticipating, or involved in, legal disputes to get access to evidence they need to support their claims or defenses.

How OPRA Relates to Litigation and Legal Disputes

While not obvious at first glance, the recent amendments to OPRA are extremely significant to individuals and businesses involved in litigation, other legal proceedings, or potentially exposed to either.

Legal proceedings often involve “discovery.” “Discovery” is the process of requesting, and exchanging, information and documents relevant to the dispute. Discovery also often involves subpoenas or requests to third parties that may have documents or information that neither litigant possesses.

Sometimes, a local governmental body or state agency is such a third party. There are many types of matters in which governmental records can play a critical role: land use, real estate and/or development-related disputes and construction defect litigation, to name a few.

The Problem With the Recent Amendments to OPRA

Before the recent amendments to OPRA, a party involved in litigation could use OPRA to get such records. Now, such a party may be limited to the use of subpoenas.

For example, the revised OPRA, which goes into effect on September 3, 2024, provides, in part, that:

Parties to a legal proceeding are not entitled to government records via OPRA if the record sought is within the scope of any court order in that proceeding or is within the scope of a pending litigation discovery request.

Public agencies are not required to respond to a request if it “does not identify specific individuals or job title or accounts to be searched, a specific subject matter, and is not confined to a discrete and limited reasonable time period.” This creates a Catch-22 for requestors who likely could only obtain such detailed information from the very records they are seeking.

As noted, these amendments may unnecessarily increase the costs associated with procuring records from the government by forcing the use of subpoenas. These amendments also appear to undermine the public’s “right to know.” After the amendments to OPRA become effective in September, we will have a better sense of their impact on legal proceedings and the public in general.

If you have questions or concerns about OPRA and these recent amendments, please contact Nicole Miller or David Byrne at Ansell.Law.

Ansell.Law Obtains Huge NJ Supreme Court Victory for Condo Association In The Face of a Former Board Member Seeking Indemnification and Attorney’s Fees for a Lawsuit He Started

Ansell Grimm July 22, 2024

How To Interpret Indemnification Clauses As Well As Bylaws Provisions

Those who serve on condominium or community association boards must have indemnification with respect to lawsuits filed against them personally related to their board service. Most association bylaws contain provisions that provide such protections. However, most of those provisions are almost universally drafted as shields for board members, not as a vehicle for recovering attorney’s fees a board member incurs in a lawsuit they file against the board.

Such provisions were the subject of a recent New Jersey Supreme Court decision, Patrick Boyle v. Carol Huff, et al. In Boyle, Ansell.Law attorneys represented certain members of Ocean Club Condominium’s board, each of whom had been sued by Patrick Boyle. Ansell.Law attorneys also represented Ocean Club itself against Boyle’s attempt to have Ocean Club reimburse the attorney’s fees he incurred to secure reinstatement to the board. The Court’s ruling in Boyle v. Huff saved the condominium from a judgment that could have exceeded $750,000.00. The ruling also highlighted how indemnification-related provisions should be both amended and interpreted.

Case Background

Patrick Boyle, a unit owner of the Ocean Club Condominium in Atlantic City, was removed from the condominium board by the board’s other members, relying on new government regulations. Boyle successfully challenged his removal in court. He also sought indemnification for his attorney’s fees and costs incurred in order to make that challenge, relying upon the indemnification provision in the association’s bylaws.

That provision reads, in relevant part, as follows:

The Trustees and officers shall not be liable to the Unit Owners for any mistake of judgment, negligence or otherwise, except for their own individual willful misconduct or bad faith. The Association shall indemnify every Trustee and officer. . . against all loss, costs and expenses, including counsel fees, reasonably incurred by him in connection with any action, suit, or proceeding to which he may be a party by reason of his being or having been a Trustee or officer of the Association except as to matters as to which he shall be finally adjudged in such action, suit or proceeding to be liable for willful misconduct or bad faith.

The trial court interpreted that provision as allowing for Boyle’s recovery even though his fees and costs were incurred solely because of a lawsuit that he, himself, commenced and pursued. The appellate court affirmed, and on behalf of the association, Ansell.Law sought review by New Jersey’s Supreme Court.

Ambiguous Indemnity Provisions Exclude Coverage for First-Party Claims

The fundamental issue before the court was whether an indemnification provision provides for the recovery of attorneys’ fees in a first-party claim, such as here, where Boyle, the party to be indemnified, filed a claim against Ocean Club, the indemnifying party – as opposed to a lawsuit filed by a third party, like a unit owner suing Boyle agreeing to indemnify — as opposed to a claim involving a third party, where a unit owner sues Boyle with respect to his role as an Ocean Club trustee.

In Justice Noriega’s unanimous decision, the Court reversed the appellate court. It held that the indemnification provision at issue was ambiguous as to first-party claims. Under rules of contract construction, ambiguities in indemnification provisions must be strictly construed against the indemnitee (Boyle). Accordingly, the Court held that “Contrary to the conclusion reached by the Appellate Division, we cannot presume first-party coverage in the absence of language precluding it; rather, there must be affirmative indicia of the intent to indemnify to overcome the presumption that parties will each pay their own way.”

The Court concluded that “indemnification may also apply to first-party claims if that is the clear intent of the parties as expressed by their deliberate word choices when drafting contracts.” (emphasis added) It stated further that “Those word choices will govern whether an indemnification provision supports a first-or third-party claim for damages.”

Key Takeaways for Community Association Boards

Strict Construction Against Indemnitee: Ambiguous indemnification clauses will be construed strictly against the party seeking indemnification. This means that an indemnification clause will cover first-party claims only if the provision explicitly states so.
Importance of Clear Language: An indemnification provision must be clear and explicit. Any association seeking to allow board members to enjoy indemnification vis-à-vis lawsuits they start must amend their bylaws with specific language.
Limitation to Third-Party Claims: Absent explicit language otherwise, an indemnification clause will likely be limited to third-party claims, not disputes between trustees and the association itself. This aligns with the traditional view that indemnification is typically about third-party actions.

The victory obtained by Ansell.Law in this case highlights the importance of one’s bylaws’ specific text, especially the provisions forced upon an association by a developer via that association’s original bylaws (as was the case here). Associations should work with counsel to ensure language clearly reflects a community’s needs and expectations.

For more information or assistance in reviewing and updating your association’s bylaws, contact Nicole D. Miller in the firm’s Community Association Law practice group.

David Byrne and Nicole Miller To Speak at Cooperator Expo New Jersey

Ansell Grimm May 20, 2024

Nearly 2000 attendees will soon gather at the Meadowlands for the 2024 Cooperator Expo, New Jersey’s biggest condo, HOA, and apartment expo. The one-day event is on June 5, 2024.

Partners David J. Byrne and Nicole D. Miller are slated to speak with Corner Property Management’s CEO, Tony Nardone. Their program will address unpaid assessments and running elections – two significant issues that buildings and association boards routinely encounter. The speakers will provide practical management strategies boards can implement to handle these challenges.

Ansell.Law is a proud longtime sponsor of this key industry event and is one of 250 exhibitors. This must-attend expo is geared towards property managers, board members, apartment building owners, shareholders, and real estate professionals. Elysa D. Bergenfeld, Stacey R. Patterson, Anthony J. D’Artiglio, and Jonathan D. Sherman will also be in attendance.

The attorneys in our Community Association Law practice provide dynamic, creative, and effective representation to condominiums, community associations, cooperatives, and homeowners associations. We work with clients in New Jersey, New York, and Pennsylvania.

Recent Decision Finding CTA Unconstitutional Casts Doubt on Its Fate

Ansell Grimm April 10, 2024

By Nicole D. Miller

As we recently discussed in this blog post, homeowner and condominium associations (“Community Associations”), are subject to the detailed and complicated reporting requirements of the federal Corporate Transparency Act (CTA). The compliance deadlines for Community Associations to disclose their “beneficial ownership information” are approaching. However, a March 1 decision by a U.S. district court judge in Alabama, issued just 60 days after the CTA’s effective date, has called into question the ultimate enforceability and constitutionality of the law.

In National Small Business United v. Yellen, Judge Liles C. Burke granted summary judgment in favor of the plaintiffs, finding that “the CTA is unconstitutional because it ‘exceeds the Constitution’s limits on the legislative branch and lacks a sufficient nexus to any enumerated power to be a necessary or proper means of achieving Congress’ policy goals.'”

Critically, the court’s order enjoining enforcement of the CTA applies only to the plaintiffs, including the National Small Business Association (NSBA) and its approximately 60,000 members. While the decision is limited to the plaintiffs in the case, the decision is seen as a positive one from the perspective of Community Associations as it sets groundwork for other courts to follow suit concerning enforceability. Community Associations throughout the country have serious concerns about the intrusive reporting requirements of the CTA given that those who serve on the boards of associations are volunteer homeowners. The extensive and invasive reporting requirements of the CTA are likely to deter participation on Community Association boards. This decision provides some hope to Community Associations that the law will ultimately not be enforceable and/or will be amended as to those required to report.

Unsurprisingly, the U.S. Department of Justice and FinCEN, the government agency tasked with the CTA’s implementation and enforcement, quickly filed a notice of appeal to the U.S. Court of Appeals for the Eleventh Circuit. Whatever the appellate court decides, there is a decent chance that the CTA’s fate will wind up in the hands of the U.S. Supreme Court.

Until then, or there is an amendment to the CTA, Community Associations should presume they will need to report their beneficial ownership information to FinCEN by the dates outlined in our earlier blog post.

For further information and assistance with your Community Association’s CTA compliance, please contact Nicole Miller in Ansell.Law’s Community Association practice group.

New Jersey Supreme Court Affirms Condominium’s Ability to Limit Alleged “Emotional Support Animals,” Clarifying the Process To Be Used For ESA Accommodations

Ansell Grimm March 18, 2024

By David J. Byrne

On Wednesday, March 13th, New Jersey’s Supreme Court released its long-awaited decision in the Players Place II Condominium Association v. K.P. case. In 2018, a resident claiming to be disabled for New Jersey’s Law Against Discrimination (“LAD”) adopted a dog that would ultimately weigh almost 65 lbs. despite Players Place II’s rule prohibiting dogs weighing more than 30 lbs. The association rejected the request, concluding that the resident did not need accommodation because she could have adopted a dog that weighed less than 30 lbs. (in which case, issues connected with disability and LAD would have been irrelevant). Further, the association concluded that the resident was neither “disabled” for the purposes of LAD nor was this particular 60+ lb. dog necessary to afford her equal use and enjoyment of her unit. The association prevailed at trial concerning LAD, establishing that its 30 lb. weight limit rule was reasonable and that the resident was not disabled for LAD. The association also prevailed on appeal, with the appellate court concluding that while the resident may be disabled, the particular dog in question was not necessary to afford the resident’s equal use and enjoyment of her unit.

The New Jersey Supreme Court decision focused on two (2) things. First, it clarified for everyone going forward how emotional support animal requests made by residents claiming to be disabled must be handled by both the resident and the housing provider (whether a condominium, apartment complex or otherwise). If possible, the parties should engage in a good-faith collaborative discussion before the actual adoption of the animal in question. The court set forth how LAD should be applied in these situations, what the resident must demonstrate, and what the housing provider must demonstrate. The court interpreted the relevant parts of the LAD so that relevant words, such as “disability,” are more easily understood. The court ruled that an ESA doesn’t necessarily need to have been “prescribed” by a health care professional. The court articulated the factors a housing provider must consider when deciding whether a request can be reasonably accommodated.

Second, the Supreme Court focused on the particular facts of the dispute between Players Place II and K.P. More specifically, whether an association must always grant the accommodation request of one claiming to be disabled, how the LAD must be applied in the face of an accommodation request, and whether Players Place II’s rejection of this resident’s request constituted a violation of LAD. In this regard, the Supreme Court agreed with Players Place II that the resident bears the overall burden of proof. The resident must prove that she is, in fact, disabled as “disabled” as defined by LAD and that the accommodation desired is necessary to alleviate at least one (1) symptom of the resident’s disability. Only then must an association establish that the request cannot be reasonably accommodated. The Supreme Court concluded that the association and the resident should proceed back to the original court where another trial should take place, a trial that decides whether this resident needs this particular animal to afford equal use and enjoyment of her unit and, if so, whether Players Place II can reasonably accommodate the animal.

Ultimately, the New Jersey Supreme Court’s decision should help New Jersey’s association better understand the law and how to apply it when faced with an ESA request. The decision also confirmed that associations, depending upon the circumstance, may very well have the right to reject an ESA request. Lastly, the Supreme Court’s decision leaves open, to be decided at a 2nd trial, whether it can deny this accommodation request without violating the LAD.

Department Chair David Byrne discusses the case with Law360 (subscription required) and Bloomberg Law.

All condo and co-op boards in New Jersey should consult with experienced community association counsel to ensure compliance. If you have questions or concerns, please contact David Byrne or one of the attorneys in our Community Association Law practice group.

Community Association Law

Recent Posts