Page 20 - NJ Cooperator Fall 2020

20 THE NEW JERSEY COOPERATOR —FALL 2020 NJCOOPERATOR.COM 24/7 ACCESS Life can be unpredictable. You can count on us to be there for you, ensuring things happen promptly and efficiently, always with the objective of getting your life and business back to normal as quickly as possible. Our goal is to have your insurance information available at your fingertips. MACKOUL RISK SOLUTIONS | WWW.MACKOUL.COM | (866) MACKOUL | INFO@MACKOUL.COM CLIENT PORTAL Use our client portal to view your policies, request insurance cards, report a claim, pay a bill or print a certificate. MOBILE APP Our app allows you to report a claim while on site, access your client portal, chat with our staff or pay a bill, on the go! TO EVERYTHING YOU NEED WEBINARS Free online and customized classes for new & experienced board members. action was not ultra vires. When a con- dominium’s action is intra vires and not ultra vires , the former can be cured. See Port Liberte II v. New Liberty, 435 N.J. Su- per. 51 (App. Div. 2014) . A defense based upon the statute of repose (10 years) or adverse possession (20 years) could also be argued. “The homeowner relied upon the ap- parent approval of the board and the management company to his detriment. That board and management decision may have been ratified by the unit own- ers at the subsequent annual meeting. The question itself provides little factual information. On what authority does the current manager assert that the balcony must be changed? Has the current board made that determination? Perhaps if the current board can compensate the unit owner for the expense of changing to the original condition without any preju- dice to the unit owner, a remedy can be achieved.” Conflict of Interest? Q Can a newly-appointed vice pres- ident to the board, who is also a broker, sell units in his/her condo building? I would think that this would be a confl ict of interest since the board member has access to all personal information about individuals, and personal board informa- tion such as litigation against the board and other information which they cannot dis- close and they can be held liable. One can- not serve two masters. —Thinks This Is Inappropriate A Says Donald Onorato, an attorney based in Hacken- sack: “While one 'cannot serve two masters,' it is not uncommon for boards of directors to contain individ- uals who are also real estate agents. Al- though it would be prudent not to serve on a board in a community in which the individual acts as a real estate salesper- son or broker, the board member should avoid any conflict by recusing himself or herself from any decisions relative to a particular unit. “While lawsuits are public knowledge, financial information is also provided to any prudent buyer as part of due dili- gence, including but not limited to an audited financial statement and minutes of meetings. An informed purchaser re- quests this information as part of his or her due diligence. “Again, as long as the individual real- tor/board member avoids any decision with respect to a unit in which he or she has a financial interest, they should be free to conduct business. Of course, they Q&A continued from page 19 cannot disclose information which is only privy to the board and cannot uti- lize that information in pursuit of their realtor duties.” Common Elements vs. Individual Unit Elements Q I live in a condo association. Our master deed includes de- tailed and specific sections that list what items are included in a unit and further state that these items are the unit owner’s responsibility to maintain, re- pair, or replace at their own expense. Two of these items are: (1) doors, door frames and hardware, and (2) Any mechanical or other system that exclusively serves the unit. In fact, we have a formal Dryer Vent Cleaning Resolution that correctly cites both of these master deed sections, stating that the dryer vent system is part of the unit and, therefore, is the owner’s responsibility to clean, maintain, etc. In this situation, each unit owner must find their own contractor and pay them di- rectly for their charge. Conversely, how- ever, every four years or so, the associa- tion also repairs and/or repaints decks, columns, and all unit entrances including front doors. The contractor is paid from our maintenance fees. My overarching question is: Is it legal/proper to use our maintenance fees to maintain, repair, or replace something that is part of anoth- er unit? In other words, why should my maintenance fee be used to paint some- one else’s unit ? Management has told me it’s so each homeowner can have their front door painted at the reduced group rate, and besides, what’s the difference? An owner is essentially paying for it ei- ther way. Well, in my view there’s thou- sands of dollars of maintenance fees to be saved and spent on other important as- sociation things if we simply follow the master deed. Additionally, notwithstand- ing that some front doors are exposed directly to the elements and need paint- ing much more often than those doors that are protected from the elements and don’t need painting even every four years, regardless of their good intentions, can a board pick and choose what master deed declarations it wants to abide by and which ones it doesn’t’? —Whose is it ? A “The answer to this ques- tion lies in your associa- tion’s master deed, which details which elements are unit elements and which are common elements,” says Jessica Baker, Esq., attorney with Hill Wallack based in Princeton. “Each association’s governing documents are unique, and we would need to review the documents to determine if the exterior door is a unit element (which the unit owner is responsible to maintain) or a common ele- ment (which the association is responsible