CAI-NJ November 2020

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to N.J.S.A. § 46:8B-3, which defines common elements to include “any improvement, the foundations, structural and bearing parts, supports, main walls, roofs, basements, halls, corridors, lobbies, stairways, elevators, entrances, exits and other means of access, excluding any specifically reserved or limited to a particular unit or group of units.” So what to do? Amending provisions of master deeds and bylaws is not always possible. The Act itself has the answer. N.J.S.A. § 46:8B-7, “Invalidity of contrary agree- ments,” provides that “[a]ny agreement contrary to the pro- visions of this act shall be void.” Surprisingly, there are not many cases where courts have specifically cited 46:8B-7 in striking down a governing document provision. There are several, however, that tell us how the courts will approach challenges to provisions like those discussed above. The New Jersey Supreme Court in Brandon Farms Prop. Owners Ass’n v. Brandon Farms Condo. Ass’n, 180 N.J. 361 (2004), for example, relied on 46:8B-7, to declare provisions of a condominium’s governing documents void as contrary to the Act. The developer of the Brandon Farms drafted the governing documents in a way that required a condominium association to be responsible for assessments

ical master deeds of days-gone-by tracked the language of the Act and defined a unit by defining a cube of space with sides, top and bottom usually beginning at the exte- rior studding, ceiling joints and floor slab, and extending inward. Improvements appurtenant to the unit that served the unit alone, such as HVAC components, plumbing, etc, were also typically defined as part of the unit. Common elements, to the contrary, were typically defined to include those construction elements that were not specific to one unit such as the roofing, siding, foundations, etc. New Jersey law has been clear for years that a unit owner only has standing to sue over items included in the unit and that the association only has standing to sue over common elements. Provisions like the one above threaten the viability of con- struction defect claims by attempting to re-define the idea of a common element to exclude construction components that are clearly common elements, such as roofs, siding and foundations. This kind of provision is directly contrary

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