
Q: Does a
condominium association board have an obligation to disclose
information to an owner about an individual who is
leasing a unit? If the lessee has a permanent guest with a criminal
background does the board have an obligation to disclose this to the
owner?
A: Typically, a condominium association in
New Jersey would not have an obligation to disclose information to an owner
about another resident who is renting a unit or is a guest in a unit. The New
Jersey Condominium Act sets forth the duties of a governing board of a
condominium association. With respect to disclosures, the Condominium Act
specifically requires the association to maintain accounting records, in
accordance with generally accepted accounting principles, open to inspection at reasonable times by unit owners. See N.J.S.A. 46:8B-14(g). Such records
include (i) a record of all receipts and expenditures and (ii) an account for
each unit setting forth any shares of common expenses or other charges due. The
Condominium Act further states that the board shall have such other duties as
set forth in the master deed or bylaws. N.J.S.A.
46:8B-14(i). Therefore, unless the master deed or bylaws set forth disclosure
obligations in addition to those above, there is generally no duty to disclose
information with respect to tenants.
Nevertheless, the Condominium Act still requires the
board to exercise its power and discharge its functions in a manner that
protects and furthers or is not inconsistent with the health, safety and
general welfare of the residents of the community. Thus, where there is a risk
of foreseeable criminal harm, an association has an obligation to take
reasonable action. What that reasonable
action may be depends on the particular facts. Therefore, the board must
balance the possibility that any specific notice to other residents of the
community may result in the resident that lawfully resides in the community being
harassed by other residents, thereby creating a potential liability for the
association. This is a very complex balancing act for the board and it should
not be undertaken without the advice of the association’s attorney.
It would be a rare case in which notice of past
criminal history of a resident should be reported to the other owners in the community.
That determination should be made in consult with the association’s attorney
and consider the type of crime committed (such as whether the crime was violent
in nature), the age of the person at the time the crime was committed, the
length of time since the crime was committed, and the amount of time during
which the person has not been subject to incarceration and has not committed
another crime. Even where the decision to disclose such matters is made, the
board should ensure that the notice is limited to purely factual matters.
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