Condominium Associations Should Take Care To Carefully Draft Documents

December 2010Newsletters In the Zone

In Breakwater Cove Condominium Association v. Mary Chin, et al., 2010 WL 4878779, N.J. Super. A.D., December 2, 2010 (No. A-1420-09T3), the Appellate Division dealt with a question of interpretation of condominium documents.

Breakwater involved a dispute between a condominium association and the owner of one of the units. The master deed contained the following restriction relating to animals kept in condominium units:

No bird, reptile, or animal of any kind shall be raised, bred, or kept in any Unit or anywhere else upon the Property except that dogs, cats or other household pets are permitted, not to exceed two in the aggregate, provided that they are not kept, bred or maintained for any commercial purpose, are housed within the Unit and abide by all applicable Rules and Regulations. No outside dog pens, runs or yards shall be permitted.

Chin had two birds in her unit.

The first question presented by the case is whether the two birds were in violation of the restriction.

The restriction is ambiguous and can be read two ways. The first way, which is the way the condominium association read it, is that no birds may be kept in any unit and the reference to “household pets” is not intended to include birds.

The other way the restriction can be read is that birds are not prohibited since they fall within the definition of “household pets” and, in this case, were only two in number.

In addition, the association presented testimony that the birds were noisy and disturbing neighboring unit owners. The noise was characterized as a “nuisance.” The association’s bylaws provided that no “obnoxious or offensive activities shall be carried on … which may be or become an annoyance or nuisance to the other residents.” Thus, the association argued that the birds were a nuisance because of the noise resulting in complaints from the neighbors.

After much litigation, including the imposition of significant fines on Chin, the trial court ruled in favor of the association, and this dispute ended up in the Appellate Division.

The Appellate Division held that ambiguous language in a master deed is to be construed strictly “in favor of the owner’s unrestricted use.” Thus, the Appellate Division held the ambiguity must be construed in favor of the defendant unit owner, allowing the birds to remain as household pets.

However, the Appellate Division, while reversing the decision of the trial court, which had ordered the birds removed, did not deal with the question of whether the birds constituted a nuisance. The Appellate Division stated the “remaining issues presented by defendants are without sufficient merit to warrant discussion.

It is not clear what the Appellate Division meant by this. It would seem the prohibition on creating a nuisance contained in the bylaws would be an independent requirement. For example, even though dogs were explicitly permitted to be kept in a unit, if a dog created a nuisance by constantly barking, it would seem reasonable for a condominium association to order the dog to be removed—not because dogs were prohibited, but because the dog’s parking constituted a nuisance.

In this case, at least some of the neighbors in the condominium complained that the noise created by the birds constituted a nuisance. For whatever reason, the Appellate Division was not willing to address this issue.

The bottom line in this case is that when drafting condominium documents, the draftsman must exercise care in what those documents provide. Had the draftsman intended to prohibit birds, it could have easily defined “household pets” as not including birds. Its failure to do so resulted in this case.

For more information, please contact Melvyn J. Tarnopol at 609.572.2212 or [email protected].