Courts at Beachgate v. Bird

• Decision Date: 29 January 1988
• Parties: . David H. BIRD, IV, and Carol Bird, jointly, severally and in the alternative, Defendants. Superior Court of New Jersey, Chancery Division, Atlantic County
• Court: New Jersey Superior Court

Page 631

226 N.J.Super. 631

545 A.2d 243

The COURTS AT BEACHGATE, A condominium, Plaintiff, v. David H. BIRD, IV, and Carol Bird, jointly, severally and in the alternative, Defendants.

Superior Court of New Jersey, Chancery Division Atlantic County.

Decided Jan. 29, 1988.

Brian J. Callaghan, Atlantic City, for plaintiff (Callaghan, D'Amico & Thompson, attorneys).

Robert E. Glaymon, Atlantic City, for defendants.

RIMM, J.T.C. (temporarily assigned).

This matter involves the enforceability of a provision in a condominium master deed relating to alterations to a condominium unit. Plaintiff, The Courts at Beachgate, a condominium association, (Beachgate) seeks a judgment against defendants, David H. Bird, IV, and Carol Bird, the owners of unit C-107, requiring them to remove and replace certain windows installed in the unit. There are no officially reported opinions in New Jersey dealing with the issue. ¹

Unit C-107 is part of The Courts at Beachgate, a condominium project established by a master deed in 1970. The project consists of various units in a number of garden-type apartment buildings. The master deed established the Association of Owners of The Courts at Beachgate. Among other things, the master deed contains the following provision:

FOURTEENTH: That each owner shall comply with the provisions of this Deed, the By-Laws, decisions and resolutions of the Association of Owners or its representative, rules and regulations, and the Regulatory Agreement, as lawfully amended from time to time, and failure to comply with any such provisions, decisions or resolutions, rules and regulations shall be grounds for an action to recover sums due, for damages, or for injunctive relief.

Article VIII, Section 3. (b), Obligations of the Owners, of the By-Laws of Beachgate provides as follows:

An owner shall not make structural modifications or alterations within his unit or installations located therein without previously notifying the Association in writing, through the management agent, if any, or through the President of the Board of Directors, if no management agent is employed, and obtaining the approval of the Association. The Association shall have the obligation to answer within thirty days and failure to do so within the stipulated time shall mean that there is no objection to the proposed modification or alteration.

The by-laws constitute exhibit B to the master deed. In New Jersey, a condominium unit owner's rights are both protected and limited by the master deed and the by-laws incorporated in it. "Condominium Act," N.J.S.A. 46:8B-1 et seq. (the act), specifically N.J.S.A. 46:8B-3(m) and 9(i).

Unit C-107 had been owned by Lillian E. Bird, the mother of defendant, David S. Bird, IV. While she owned the unit, she had the existing windows removed and replaced with white vinyl replacement windows. The work was completed on April 20, 1984. Mrs. Bird died on July 18, 1984, and title to unit C-107 ultimately vested in defendants in 1985.

Plaintiff's evidence showed that the windows in the condominium complex are milled aluminum slotted-type windows whereas the windows in defendants' unit are double-hung white vinyl windows. The president of the board of directors, who became a member of the board on October 14, 1984, testified that the board became aware of windows of a different type, material and color in defendants' unit in October or November, 1984. Prior to that time Beachgate had received neither a written notification of intent to replace the existing windows in unit C-107 nor any request, oral or written, for permission to replace the windows. The witness also testified that a request from another unit owner to replace windows had been denied by Beachgate because of safety considerations. He also testified that there had been other requests for permission to make changes in units. Among them were a request to install a fireplace which had been denied and a request to change electrical service which had been approved with conditions. Finally, the witness testified that, in deciding to seek injunctive relief against defendants, after requesting them to replace the windows, the board of directors of Beachgate was concerned about the following items:

1. The vinyl windows were a safety hazard in the event of fire because of distortion and fumes.

2. Double hung windows presented an escape problem in the event of fire as compared with the other windows in the complex.

3. The vinyl windows presented a maintenance problem and discolored to yellow. In this connection they also presented an esthetics problem voiding the complex's uniformity.

4. The replacement windows might subject Beachgate to liability different from that imposed on it because of the use of aluminum windows.

5. Finally, if each unit owner did as he or she wished with regard to a unit, the condominium association would lose control over the condominium complex.

On cross-examination this witness testified that there had been some changes in the uniform appearance of the complex by the installation of bars over certain windows for security purposes and by the installation of some storm doors. The evidence was, however, that installation of bars had been specifically approved by Beachgate and the installation of storm doors had apparently also been approved. Further evidence was to the effect that only one unit other than defendants' had replaced windows. This installation was approved by Beachgate, and the windows installed were the same as the original windows except for the bronze color, the original color no longer being available.

Defendant, David H. Bird, IV, testified that his mother received oral permission in December 1983 or January 1984 to replace the existing windows in her unit. The permission, according to the witness, was given by Hans Horn who was the complex manager until 1985. This defendant acknowledged that no written request was made of the board of directors for permission to replace the windows; neither Mrs. Bird nor anyone on her behalf attended a board meeting to seek permission; no letter was ever received from Mr. Horn approving the installation; and Mr. Horn was supposed to have gone before the board to get approval for the new installation.

Rebuttal testimony was that the only other approval for the installation of replacement windows resulted from a letter to the board of directors written by Mr. Horn on behalf of the unit owner. This installation was only approved after the same type of aluminum windows as the original windows were to be used.

The primary basis of the defense in this matter is that defendants' predecessor in title received oral permission from the manager of the condominium complex to make the structural changes. Defendants rely on C.B. Snyder Realty Co. v. Nat. Newark & Essex Banking Co., 14 N.J. 146, 101 A.2d 544 (1953), from which they quote at length in their trial brief. That case iterates the rule that the principal, here the condominium association, is bound by the acts its agent, here the manager, Mr. Horn, within the apparent authority which the principal permits the agent to assume or which the principal holds out to the public as possessed by the agent. The question is whether the principal has placed the agent in such a position "that a person of ordinary prudence, conversant with business usages and the nature of the particular business, is justified in presuming that such agent has authority to perform the particular act in question." Id. at 154, 101 A.2d 544.

Defendants' position is untenable. There is not a scintilla of evidence on the basis of which defendants' predecessor in title would have been justified "in presuming" that the manager had the "authority to perform the particular act in question," that is, give permission to make a structural change in the unit. Further, the by-laws specify the procedure to be followed for obtaining permission to make a structural change in a unit. If defendants' predecessor did not have actual notice of the applicable provisions, she was certainly charged with constructive notice by virtue of the recording of the master deed and the by-laws. Cf. Leisuretowne Ass'n, Inc. v. McCarthy, 193 N.J.Super. 494, 501, 475 A.2d 62 (App.Div.1984).

Beyond that, the totality of the facts before the court do not support the defendants' position. On the only other occasion when windows were replaced by a unit owner, the very same manager submitted a written request to the board of directors for permission to install new windows.

The power to control structural changes must come from the by-laws. They provide the authority of a board of directors of a condominium for the administration and management of the condominium. N.J.S.A. 46:8B-13. In the present case, the by-laws specifically limit a unit owner's right to make structural changes to the unit. Similar provisions in the "Declaration" of an incorporated nonprofit homeowners' association have been considered valid. Bonner Properties, Inc. v. Franklin Tp. Plan. Bd., 185 N.J.Super. 553, 449 A.2d 1350 (Law Div.1982). By virtue of the court's comparison between, and discussion of, a homeowners' association and a condominium association, such restrictions are also valid in condominium by-laws. "Individual owners and residents are required to subordinate their own interests to those of the community at large." W. Smith, New Jersey Condominium Law 78 (1985), referring to Chelmsford Community Association v. Zane, 94 N.J. 523, 468 A.2d 179 (1983) and Leisuretown Ass'n., Inc. v. McCarthy, supra, (Foreclosure judgment entered to realize unpaid maintenance fees, court concluding that the restricting and protective covenants were binding on retirement village unit owners who had constructive notice of them.).

A condominium association has the authority to enforce provisions in the condominium's by-laws restricting structural changes in the units. If the by-laws so provide, application must...