A COUNTRY PLACE CONDOMINIUM ASSOCIATION VS. MAROECHEABDELHAK(DC-12065-14, OCEAN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0145-15T4
A COUNTRY PLACE CONDOMINIUM
ASSOCIATION,
Plaintiff-Respondent,
v.
MAROECHE ABDELHAK,
Defendant-Appellant.
_____________________________________
Argued October 6, 2016 – Decided June 6, 2017
Before Judges Leone and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Special Civil Part, Ocean
County, Docket No. DC-12065-14.
Daniel Louis Grossman argued the cause for
appellant.
Philip D. Tobolsky argued the cause for
respondent.
PER CURIAM
Defendant Maroeche Abdelhak appeals a July 16, 2015 order
awarding maintenance fees, counsel fees, and costs to plaintiff,
A Country Place Condominium Association. We affirm in part, vacate
in part, and remand.
I.
Unless otherwise indicated, the following facts were found
by the trial court. Defendant owned a unit in plaintiff's 376-
unit condominium complex in Lakewood. He was pleased with the
services until management of the property was taken over by Ocean
Management Group.
Defendant took issue with the growth of roots in the yards
in front and in back of his unit. During the dispute, defendant
stopped paying his monthly maintenance fees to plaintiff. He also
accrued late fees, counsel fees, and other fees.
Defendant and plaintiff entered into an agreement that
plaintiff would perform work on the front and back yards, and
defendant would pay around $3000. Under the agreement, defendant
would pay half in advance and half when the work was finished.
Defendant paid $1505 in advance. The work on the back yard was
done to defendant's satisfaction. However, the work on the front
yard was never done.
Defendant testified that, as a result, he never paid the
other half of the $3000. Plaintiff's property manager testified
that, after being credited for paying the $1505 in June 2013,
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defendant never paid his monthly maintenance fee, resulting in a
balance of $6615 by the June 2015 trial.
Defendant's complaint about the roots in the yards was only
one of his complaints about plaintiff's care of the common areas.
He testified plaintiff failed to properly cut the grass or power
wash mildew from the exterior of the roof. He also testified
that, as a result of the dispute, plaintiff did not plow, shovel,
salt, or sand snow and ice on his driveway and walkway as promptly
as it did for his neighbors, leaving him "trapped" in his house
for days. Plaintiff's former officer manager testified that "it
was my experience that there were a few homeowners that were due
services and being they were behind on their maintenance payments,
the services were not provided," and that it was "a possibility"
that was why defendant's unit was not fully serviced.
Plaintiff filed a complaint in the Special Civil Part seeking
maintenance fees, late fees, and counsel fees defendant was
required to pay under the master deed and bylaws. Defendant filed
a counterclaim alleging plaintiff failed to provide the services
and unit maintenance required by the master deed and bylaws.1
1
Nonetheless, the parties have failed to provide the master deed,
or any portion of the bylaws other than the counsel fee provision.
3 A-0145-15T4
The trial court found defendant should have paid the
management fees in full. The court awarded plaintiff $6615.2 The
court declined to award the $950 in late fees requested by
plaintiff but ultimately granted plaintiff $2435.12 in counsel
fees. The court dismissed defendant's counterclaim. He appeals.
II.
We must hew to our "deferential standard" of review.
D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013). "'Final
determinations made by the trial court sitting in a non-jury case
are subject to a limited and well-established scope of review[.]'"
Ibid. (citation omitted). "'[W]e do not disturb the factual
findings and legal conclusions of the trial judge unless we are
convinced that they are so manifestly unsupported by or
inconsistent with the competent, relevant and reasonably credible
evidence as to offend the interests of justice . . . .'" Ibid.
(citation omitted). "To the extent that the trial court's decision
constitutes a legal determination, we review it de novo." Ibid.
III.
The trial court could properly find defendant owed $6615 in
unpaid maintenance fees he withheld during the dispute. During
his testimony, defendant admitted he was unaware of anything in
2
The transcript shows the trial court initially ordered defendant
to pay $6650, but that appears to be a transcription error.
4 A-0145-15T4
the master deed or bylaws which allowed him to withhold his monthly
payments if he was unhappy with the services he received. Absent
such a provision, we are unaware of any authority allowing
defendant to withhold his maintenance fees because he was
dissatisfied with the services.
No such authority is provided in the Condominium Act, N.J.S.A.
46:8B-1 to -38. A condominium association "shall be responsible
for the performance of [its] duties," including "[t]he
maintenance, repair, replacement, cleaning and sanitation of the
common elements." N.J.S.A. 46:8B-14(a). "[T]he costs of [doing
those duties] shall be common expenses[.]" N.J.S.A. 46:8B-14.
"The association may levy and collect assessments duly made by the
association for a share of common expenses or otherwise, . . .
together with interest thereon, late fees and reasonable
attorneys' fees, if authorized by the master deed or bylaws."
N.J.S.A. 46:8B-15(e).
"A unit owner shall, by acceptance of title, be conclusively
presumed to have agreed to pay his proportionate share of common
expenses accruing while he is the owner of a unit." N.J.S.A.
46:8B-17. "No unit owner may exempt himself from liability for
his share of common expenses by waiver of the enjoyment of the
right to use any of the common elements or by abandonment of his
unit or otherwise." Ibid.; accord Brandon Farms Prop. Owners
5 A-0145-15T4
Ass'n v. Brandon Farms Condo. Ass'n, 180 N.J. 361, 368 (2004);
Ocean Club Condo. Ass'n v. Gardner, 318 N.J. Super. 237, 240 (App.
Div. 1998).
"The obligation to pay condominium fees has been described
as 'unconditional.'" The Glen, Section I Condo. Ass'n v. June,
344 N.J. Super. 371, 376 (App. Div. 2001). In The Glen, unit
owner June was delinquent in paying maintenance assessments, and
the association suspended his privileges to use all common
elements, deliberately piled snow in his driveway in violation of
its duty of good faith and fair dealing, and exceeded its powers
by installing a "lolly" column to prevent use of his own garage.
Id. at 374, 378-80. Nonetheless, we rejected the trial court's
ruling that the association's acts "absolved June of his obligation
to pay the monthly assessments. The fact that June continued to
own a condominium unit results in membership in the Association,
and an attendant obligation to pay his share of the expenses."
Id. at 377-78.
If in The Glen the association's improper retaliatory acts
were inadequate to absolve the unit owner of his obligation to pay
monthly assessments, plaintiff's alleged failure to maintain some
common elements, or its allegedly retaliatory slowness in
addressing snow and ice, did not absolve defendant from his
obligation to pay his monthly assessments. We decline to create
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an exception to the unconditional statutory imperative in N.J.S.A.
46:8B-17. See High Point at Lakewood Condo. Ass'n v. Township of
Lakewood, 442 N.J. Super. 123, 142-43 (App. Div. 2015). Thus, we
reject defendant's argument that plaintiff's alleged "breach of a
material term of an agreement" by not performing maintenance
"relieved [him] of [his] obligations under the agreement[s]"
between the parties. Cf. Nolan v. Lee Ho, 120 N.J. 465, 472
(1990).3
In The Glen, supra, we also established the proper remedy
when a unit owner claims an association improperly denied services.
We remanded "for retrial limited to the issue of damages that June
suffered resulting from the Association's breach of its duty of
good faith and fair dealing by denying access to June's driveway
and garage." 344 N.J. Super. at 380. "Those damages are measured
by the reasonable value of the loss of use of June's driveway and
garage for the period he was deprived thereof. The amount found
3
We note the following is apparently a basic master deed
provision: "No Unit Owner may waive or otherwise avoid liability
for Common Expense Assessments . . . by reason of the Association's
failure to provide services to this Unit." Smith, Estis, & Li,
New Jersey Condominium & Community Association Law § 6:7.02, at
85 (2017).
7 A-0145-15T4
shall be set off against June's obligation for the common areas
assessments for the period in question[.]" Ibid.4
Here, defendant would be entitled to a setoff against his
assessment obligations for the period in question if he had proved
he was damaged because plaintiff breached the Condominium Act, the
master deed, the bylaws, or its duty of good faith and fair dealing
by improperly failing to provide services or by improperly
retaliating against defendant. Indeed, defendant brought a
counterclaim claiming such damages.
Generally, in claims for breach of contract,
[o]ur law imposes on a plaintiff the burden
to prove four elements: first, that "[t]he
parties entered into a contract containing
certain terms"; second, that "plaintiff[s] did
what the contract required [them] to do";
third, that "defendant[s] did not do what the
contract required [them] to do[,]" defined as
a "breach of the contract"; and fourth, that
"defendant[s'] breach, or failure to do what
the contract required, caused a loss to the
plaintiff[s]."
[Globe Motor Co. v. Igdalev, 225 N.J. 469, 482
(2016) (alterations in original) (quoting
Model Jury Charge (Civil) § 4.10A "The
Contract Claim—Generally" (May 1998)).]
4
This remedy resembles a remedy afforded tenants. "[I]n an action
by a landlord for unpaid rent a tenant may plead, by way of defense
and set off, a breach by the landlord of his continuing obligation
to maintain an adequate standard of habitability." Berzito v.
Gambino, 63 N.J. 460, 469 (1973). "This does not mean that the
tenant is relieved from the payment of rent so long as the landlord
fails to repair." Marini v. Ireland, 56 N.J. 130, 146-47 (1970).
8 A-0145-15T4
We now examine whether defendant as counterclaimant proved those
four elements.
Here, the parties entered into agreements, including the
agreement to perform service regarding the roots and payment of
$3000. Under that agreement, defendant "'did what the contract
required [him] to do'" when he made the $1505 initial payment.
Ibid. (citation omitted).5 However, it is unclear whether
defendant established the third and fourth elements.
Defendant complains the trial court's factual findings in
this area were "oblique" or non-existent and violated Rule 1:7-
4(a). A trial court must "find the facts and state its conclusions
of law thereon in all actions tried without a jury." R. 1:7-4(a).
"[T]he trial court is required to make findings of fact and to
state specific reasons in support of its conclusion." Gnall v.
Gnall, 222 N.J. 414, 428 (2015). "Failure to make explicit
findings and clear statements of reasoning '"constitutes a
5
Otherwise, it is dubious whether defendant did what he was
required to do, as he failed to pay his monthly maintenance
assessment. Because we decide the appeal on other grounds, we
need not decide whether defendant's failure to pay assessments
relieves plaintiff of its obligation to maintain the common
elements associated with his unit, or whether plaintiff's duty to
perform maintenance of the common elements under N.J.S.A. 46:8B-
14(a) is as unconditional as defendant's duty to pay maintenance
assessments under N.J.S.A. 46:8B-17. Cf. The Glen, supra, 344
N.J. Super. at 377 (finding that "[t]he master deed . . .
explicitly empowers the Association to suspend a member's
enjoyment of the common elements until such fees are paid").
9 A-0145-15T4
disservice to the litigants, the attorneys, and the appellate
court."'" Ibid. (citation omitted).
The trial court found "there was an agreement and some work
that was supposed to be done has not been done." The court also
found:
I don't know if it's been proven by a
preponderance of the evidence, but there
certainly has been implication that some other
work that should have been done, like the
appropriate removal of snow from the grounds,
which is part of the responsibility of the
association, there's some overhanging trees
that have left some markings and residue on
the roof of the particular condominium and
those issues have not been addressed by the
homeowners association.
Finally, the court found: "There was some testimony that I also
find credible, that there is a possibility, but not a definite
possibility that when people don't pay their homeowners
association dues, they don't get the top service."
In this regard, the trial court failed to "'state clearly its
factual findings and correlate them with the relevant legal
conclusions.'" Ibid. (citation omitted). The court's first
finding suggests defendant proved plaintiff breached the agreement
to provide service regarding the roots in the front yard. The
court was unclear regarding whether it found by a preponderance
that plaintiff failed to perform proper service regarding snow
10 A-0145-15T4
removal and roof maintenance, or that plaintiff retaliated against
defendant by providing inferior service.
Defendant argues the defense testimony about these alleged
failings was undisputed and must have been found as fact because
the trial court stated: "The testimony that was given by all of
the witnesses, the Court does deem to and finds it to be credible."
However, we do not read the court's statement to mean it found as
fact every single statement every witness uttered. The contrary
is indicated by the court's explicit factual findings on specific
topics and by its statements about "implications" and
"possibilit[ies]."
The trial court's inadequate findings are harmless if there
was no evidence of damages. "Defendant had the burden of proof
to establish all elements of its cause of action, including
damages." Cumberland Cty. Improvement Auth. v. GSP Recycling Co.,
358 N.J. Super. 484, 503 (App. Div.), cert. denied, 177 N.J. 222
(2003). Defendant failed to offer any proof of damages for most
of his claims raising failure to maintain and retaliation. He
asked plaintiff's maintenance supervisor about its lawn mowing and
snow plowing costs but produced no information the trial court
could use to calculate damages. Because "the trial judge was left
to speculate on the extent of defendant's damages" regarding those
claims, they were properly dismissed. Ibid.
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Defendant did prove that plaintiff and he agreed he would pay
approximately $3000 if plaintiff performed service regarding the
roots in the front and back yards, that defendant paid $1505 up
front, and that plaintiff performed the service on the back yard
but not on the front yard. The trial court stated maintenance
regarding the front and back yards "would cost around $3,000," but
defendant and plaintiff's former office manager testified the
$3000 simply represented the back maintenance fees defendant owed
at that time. The court posed the question "how much is that
agreement, in terms of an economic level, worth?" However, the
court failed to answer that question. Because the court did not
determine the value of the service plaintiff failed to perform on
the front yard, a remand for findings is necessary.
If the $1500 was an estimate of the cost of that service, it
constituted evidence of damages that the trial court should have
considered in determining whether to offset some or all of that
amount against the $6615 in maintenance assessments owed by
defendant. Even if the $1500 was just half of defendant's unpaid
maintenance assessments, the agreement made defendant's payment
of the $1500 contingent on the performance of the maintenance and
thus entitled defendant to setoff the cost of such maintenance if
not performed.
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Accordingly, we affirm the trial court's award of $6615 in
unpaid common expenses and $2435.12 in counsel fees and costs. We
vacate the dismissal of defendant's counterclaim and remand to the
trial court to make findings of fact regarding whether defendant
should be credited with a setoff of some or all of the
approximately $1500 due to plaintiff's failure to perform the
requisite maintenance on the roots in the front yard. The court
may permit submission of further evidence on that issue in its
discretion. We do not retain jurisdiction.
Affirmed in part, vacated in part, and remanded.
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