Tuesday, February 9, 2016

Homeowners Awarded Treble Damages for Developer’s Failure to Disclose

On February 4, 2016, the Appellate Division affirmed an award of treble damages to three new home purchasers, where the developer knew, but failed to disclose, that the garage could not practically fit a normal-sized sedan.[1]  Plaintiffs purchased model homes with a two-car garage, but the garage bay on the left side was not able to fit a normal-sized sedan.  The residential developer and others involved in the construction and sale of the homes were aware of this issue and failed to disclose it to the purchasers.  Plaintiffs filed an action alleging a breach of the New Jersey Consumer Fraud Act (CFA) and sought damages to repair the condition.  

The CFA prohibits, amongst other fraudulent conduct, the knowing concealment, suppression, or omission of any material fact in connection with the sale or advertisement of real estate.  A violation of the CFA may result in the award of three times the damages caused thereby and attorney’s fees.  Here, the Court found that the inability to park a car in a garage was a material fact required to be disclosed under the CFA because a reasonable person would attach importance to such information in purchasing a home.  Therefore, because the Developer knew, but did not disclose this condition to the plaintiff purchasers, the Court found that the Developer violated the CFA and awarded damages of $9,200 to each plaintiff, which was trebled to $27,600 each.  The Court also awarded plaintiffs approximately $102,000 in attorney’s fees.   

The decision should be of particular interest to all new home purchasers because it sets forth that the CFA does not require the violation of a building code before the omission of material information constitutes consumer fraud.  If a reasonable person would attach importance to the existence of certain information in determining whether or not to purchase, and the developer knew, but failed to disclose such information, the developer may be liable for treble damages under the CFA.  We recommend that you consult with an attorney if your condominium association has discovered that the developer or others involved in the design and construction of the property failed to disclose certain material facts in connection with the sale or advertising thereof.

[1] See Hazaray, et al. v. The Estates at Bordens Crossing, LLC, et al.,  Docket No. A-5135-13T3 (http://www.judiciary.state.nj.us/opinions/a5135-13.pdf)

Tuesday, February 2, 2016

The Discovery Rule May Defer Statute of Limitations Applicable to Construction Defect Claims Filed by Condominium Associations in New Jersey

In a recent decision the New Jersey Appellate Court held that a lawsuit by a condominium association against the developer and other parties responsible for the negligent design and construction of a condominium, that was filed more than six years after substantial completion of construction, was not barred because the six year statute of limitations that runs from substantial completion was deferred until the association received a report from its engineer identifying the various construction defects in the property.[1]  While prior decisions of the New Jersey courts have held that such claims are, at a minimum, deferred until the unit owners gain control of the Board,[2] the Palisades Court found that the association was entitled to the benefit of the “discovery rule,” which defers the limitations period until a party knew, or should have discovered by reasonable diligence, that a claim exists.

The statute of limitations for construction defect claims generally begins to run upon substantial completion, but the equitable principle of tolling may be applied to condominium associations’ claims to defer the running of the limitations period.  For example, in Palisades, construction was substantially complete on May 1, 2002.  The unit owners, however, did not gain full control of the Board until July 2006.  Shortly after gaining control, the board retained an engineering company to undertake an evaluation of the property and in June 2007 a report was supplied to the board identifying various construction defects.

On March 12, 2009, the association filed a complaint in the Superior Court of New Jersey against the construction defendants based on the findings in the June 2007 report.  The construction defendants sought dismissal of the complaint arguing that at the time the engineering report was produced one year still remained on the six year limitations period and therefore the association had ample amount of time to seek recourse and equitable tolling ought not to apply.  On appeal, the Appellate Division reversed the decision of trial and rejected the argument of the defendants, finding that the discovery rule deferred the limitations period until the engineering report was supplied because that is when the board first discovered, through reasonable diligence, that a claim existed.

The decision in Palisades is significant because it affirms that the discovery rule applies to construction defect claims by a condominium association.[3] It is important that associations act with reasonable diligence to discover potential construction defects and timely assert any claims for damages.  If your condominium has recently transitioned from developer to unit owner control, we suggest that you immediately consult with an attorney.

[1] See The Palisades at Fort Lee Condominium Ass’n Inc. v. 100 Old Palisade LLC, Docket No. A-4292-13T3 at http://www.judiciary.state.nj.us/opinions/a4292-13.pdf

[2] See e.g., Terrace Condominium v. Midlantic National Bank, 268 N.J. Super. 488, 503 (Law Div. 1993) (limitations period tolled when unit owners are not in control of board ); accord Skyline Condominium Assoc. v. Falkin, Nos. A-3913-98, A-3860-98, A-3792-98 (App. Div. Sept. 10, 2001) (inability of association to commence action until unit owners acquired control of association mitigates barring complaint as untimely).

[3] See also Belmont Condo. Ass'n, Inc. v. Geibel, 432 N.J. Super. 52 (App. Div. 2013) (pursuant to discovery rule, statute of limitations on condominium association's Consumer Fraud Act (CFA) claim against developer was tolled until property manager had reason to believe that it had suffered an ascertainable loss from water leaks).

Fear Not the Dreaded Legal Fees: Part Two

BY:  ANGELA M. MORISCO, ESQ. Very often boards of condominiums and other community associations hesitate to engage in litigation ag...