New Jersey Law Blog

Death During Divorce Proceedings

mesmith@stark-stark.com (Megan E. Smith) — Fri, 10 Jul 2009 08:05:03 -0500

Usually, when a spouse dies in the midst of divorce litigation, significant problems arise. The first is that upon the death of a spouse prior to entry of Final Judgment effectively terminates the divorce proceedings. See Carr v. Carr, 120 N.J. 336, 339 - 340 (1990). Thus, any right of the surviving spouse to equitable distribution under the divorce statute is extinguished. The result is that the surviving spouse is left to pursue his or her share of the marital assets through the probate code by way of exercise of elective share if he or she has been disinherited or the decedent was intestate.

The second problem arises in that the probate code explicitly denies the election share option to a surviving spouse if: (a) at the time of death the decedent and surviving spouse were living separate and apart in separate habitations; or (b) the decedent and surviving spouse had ceased to cohabit as man and wife as a result of circumstances that would give rise to a cause of action for divorce in New Jersey. N.J.S.A. 3B:8-1. Thus, the surviving spouse is left to pursue relief by way of a constructive trust under quasi-contractual law, which may be established by the Court as a vehicle by which equity may be accomplished.

If your spouse or civil union partner should pre-decease you immediately preceding the commencement of divorce/dissolution litigation or in the midst thereof, it is strongly advised that you seek the advise of an attorney to ensure that your property rights are upheld and you receive proper distribution of the marital assets.

Stark & Stark Condominium Client Places into Rent Receivership an Affordable Housing Unit in Foreclosure

dbyrne@stark-stark.com (David J. Byrne) — Thu, 09 Jul 2009 08:04:08 -0500

A Stark & Stark Community Association Group client recently defeated both the related municipality and unit's mortgagee and put an affordable housing unit into rent receivership. The condominium unit in question was abandoned by the owner; a low income woman who had qualified for the purchase of an affordable housing unit, as governed by New Jersey's Fair Housing Act and Council on Affordable Housing ("COAH"). Both the condominium and the condominium unit's mortgagee, Mortgage Lenders Network Home Equity Loan Trust (the "Bank") had filed separate foreclosure complaints against the owner. The condominium's foreclosure was completed first, with a judgment entered (the Bank having not yet secured a foreclosure judgment). Once the condominium learned that the owner had abandoned the unit, it filed a motion seeking the appointment of a rent receiver. The rent receiver, the condominium hoped, would identify and install a tenant, who would then pay monthly rent to the condominium, in an effort to offset the amounts in assessments, left unpaid by the owner.

The municipality opposed the condominium's motion arguing that the installation of a tenant would slow its attempts to ensure the unit's ultimate ownership by a low or moderate income family. Thus, the municipality argued, the unit should remain vacant until the Bank's sheriff's sale and ultimate purchase by the municipality. The Bank opposed the motion arguing that the installation of a tenant would slow its efforts to complete its foreclosure and sheriff's sale and that, if there is to be rent receiver, the Bank and not the condominium should be the recipient of the funds.

The condominium countered that it was and remains wholly inequitable for the condominium and its middle class neighbors to preserve this asset valued so highly by the municipality (it must ensure the continuation of this as an "affordable unit" to ensure compliance with COAH regulations) and the Bank (it intended to sell the unit after foreclosure for the amount of the unpaid mortgage, thereby recouping some of the Bank's losses) without any contribution from the unit's owner, the municipality or the Bank. Further, if the Bank was to be the beneficiary of the rent receivership, so be it, but then the Bank better start paying monthly assessments.

The court agreed with the condominium, ordering that a rent receivership be created. She further ordered that the municipality to identify persons qualified under COAH regulations to reside in an affordable unit. The Court ruled as well that the only way the Bank and/or the municipality could avoid the receivership and tenancy is if they pay the condominium's regular monthly fees.

The condominium's success here further illustrates how condominiums and associations must continue to be aggressive and creative to collect unpaid assessments and safeguard their rights during these difficult and challenging economic times. For further information on associations and rent receiverships, or collections in general, please contact David J. Byrne, Esquire, Co-Chair of the Community Association Group.

Stark & Stark Blogs Featured in Mercer Business Magazine Article

rdeluca@stark-stark.com (Stark & Stark) — Wed, 08 Jul 2009 08:00:39 -0500

Stark & Stark Shareholder, Timothy P. Duggan, and Directory of Business Development, Richard C. DeLuca, were featured in the July 2009 issue of Mercer Business Magazine in the article, Who Let the Blawgs Out?

The article discusses the recent rise in law firms who have taken to blogging as a result of their appeal as an inexpensive and effective marketing tool, and as a terrific way for presenting information on a wide range of legal matters to current and potential clients. Stark & Stark’s New Jersey Law Blog was noted as one of the most prolific blawgers in the state since its inception in 2004. Mr. DeLuca states, “Blogs are a way to stay in touch with our existing and potential client base. We’ve integrated all of our electronic communications—blogs, Website, e-mail, e-marketing—all into one package."

Stark & Stark Bankruptcy & Creditors’ Rights Shareholder, Timothy P. Duggan, was also quoted in the article as saying, “It’s interesting how people are finding lawyers and how many people are accustomed to throwing in names or ideas into Google. Today, people can find you in all different ways.”

You can read the full article online here. (PDF)

Recent Case Law Under the Employee Polygraph Protection Act

rdeluca@stark-stark.com (Stark & Stark) — Mon, 06 Jul 2009 08:05:07 -0500

Michael J. Brittan, member of Stark & Stark’s Employment group, co-authored the article Recent Case Law Under the Employee Polygraph Protection Act: A Practical Review, for the June 2009 issue of the Privacy & Data Security Law Journal.

The article discusses the most recent case law relating to the Employee Polygraph Protection Act (EPPA) and provides employers guidelines for complying with the EPPA. You can read the full article online here.

Recent Fannie Mae and Freddie Mac Regulations Impact the Sale of Condominiums

dbyrne@stark-stark.com (David J. Byrne) — Thu, 02 Jul 2009 08:30:26 -0500

Fannie Mae and Freddie Mac (along with the Federal Housing Administration) purchase or guarantee the vast majority of mortgages in this country. Obviously then, any toughening of their lending standards could have a major impact on the housing market. As we have seen over the past few years though, standards that are too lax could leave Fannie Mae and Freddie Mac with bad loans, ultimately becoming the responsibility of United States taxpayers. In March, 2009, Fannie Mae advised that it would no longer guarantee mortgages on condominiums in associations where fewer than 70% of the units have been sold. The previous percentage was 51%. Fannie Mae also declared that it will not purchase mortgages in associations where 15% of the owners are delinquent in the payment of assessments, or where one (1) owners has more than 10% of the units. Fannie Mae believes that these are evidence of an association that may soon have financial trouble. It is expected that Freddie Mac will implement similar policies this July. Fannie Mae and Freddie Mac has also increased fees on mortgages for condominiums. Prospective buyers without a minimum 25% down payment must pay closing-cost fees equal to 0.75% of their loan, regardless of their credit score (exceptions are pending with respect to cooperatives and detached condominiums).

There are caveats and/or exceptions to these policies and/or rules. According to Fannie Mae, the 70% rule does not apply to loan applications suubmitted through an underwriting program used by major lenders. Fannie Mae added that hundreds of projects submitted through that exception since March 1, 2009 have been approved even though their sales levels are below 70%. Further, developers can seek exemptions with respect to loans that are manually underwritten.

Debates in Congress are ongoing with respect to whether these policies ought to be further amended, as everyone continues to try to find the right balance between the need to facilitate the creation and purchase of housing, and the need to avoid another round of mortgages for individuals that cannot afford them.

Forensic Computer Investigations For Your Divorce

jeory@stark-stark.com (John S. Eory) — Wed, 01 Jul 2009 08:06:55 -0500

Legal Briefs On Divorce is a video podcast series providing viewers with a discussion on timely news and insight on current trends impacting divorce. This installment of Legal Briefs On Divorce is an interview with John S. Eory, Shareholder in Stark & Stark's Divorce Group, and Rob Kleeger, Managing Director of the Intelligence Group.

Mr. Kleeger conducts digital forensic investigations for divorcing parties in order to gather electronically stored information and put it in a format useful to a divorce case. Mr. Eory and Mr. Kleeger discuss the reasons for digital forensic investigations and what type of information can be gathered for a divorce case.

Legal Briefs On Divorce With John Eory & Rob Kleeger from Stark & Stark on Vimeo.

Stark & Stark Shareholder Comments on Madoff Sentencing

rdeluca@stark-stark.com (Stark & Stark) — Tue, 30 Jun 2009 09:35:48 -0500

Bill Singer, Shareholder in Stark & Stark’s Securities group, was interviewed yesterday on CBC News. Mr. Singer commented on the 150-year sentence delivered to Bernard Madoff in response to the tens of billions of dollars he stole from hundreds of investors in his Ponzi scheme.

Mr. Singer states that while he is happy that Madoff received the maximum sentence possible, it will do little to change the ways of criminal Wall Street investors. Mr. Singer warns that regulation of our securities markets has to be preemptive and focused on prevention instead of punishment in order to prevent another similar situation from occurring again in the next five to ten years.

You can watch the full interview online here.

The Status of Affordable Housing Units After a Foreclosure and Involuntary Sale

rdeluca@stark-stark.com (Stark & Stark) — Tue, 30 Jun 2009 08:09:19 -0500

David J. Byrne, Shareholder and Co-Chair of Stark & Stark’s Community Association group, authored the article, The Status of Affordable Housing Units After a Foreclosure and Involuntary Sale, for the June 22, 2009 edition of the New Jersey Law Journal. The article discusses how the recent economic downturn and troubled real estate market downtown affect mortgages and affordable housing agreements following a foreclosure.

You can read the full article here. (PDF)

The Impacts of Family Leave Insurance

gfaber@stark-stark.com (Gerald Faber) — Mon, 29 Jun 2009 08:05:33 -0500

With the advent of the newest employee benefit in New Jersey, business owners ask what impact Family Leave Insurance will have on the employer’s discretion to terminate employment due to business conditions or other considerations. The Legislature has made it clear that the amendments to the Temporary Disability Benefits law, commonly known as the “Paid Family Leave Act”, confer a monetary benefit, but not a leave entitlement. In other words, this law does not further erode the “At-Will” concept of employment, that the employer is free to change the working conditions or terminate the employment of a worker with or without notice and with or without good cause for the termination.

Of course, appropriate law limits this discretion where there is a written contract specifying a certain duration of employment or if the employer’s action violates applicable laws (These laws include Family Leave Acts, Discrimination Laws, implied promises contained in written or oral policies, and New Jersey’s Conscientious Employees Protection Act.) In the context of Family Leave laws, those employers who are covered under the Federal or New Jersey State Acts (Under Federal law, covered employers are those who employ 50 or more employees for each working day during 20 or more calendar weeks in the current or preceding calendar year, either at the main work site or without 75 miles of that work site. The New Jersey law applies to employers with 50 or more employees.) Must still comply with the laws and regulations promulgated under these Acts. However, these amendments do not confer additional leave rights to employees.

Must the employer pay the employee’s wages for this paid leave period? Family Leave Insurance benefits are fully funded by employee contributions through payroll deductions, which began on January 1, 2009. The employer will not be required to contribute to this plan. In addition, an employer can require an employee to use up to two weeks of any paid sick leave, vacation time or other leave as full pay, if made available by the employer, prior to utilizing Family Leave Insurance benefits.

For what reasons may an employee claim these benefits? Benefits shall be granted for an employee to bond with a child during the first twelve months after the child’s birth, if the covered individual or the domestic partner or civil union partner of the covered individual, is a biological parent of the child, or for the first twelve months after the placement of the child for adoption with the covered individual. In addition, benefits can be claimed to care for a “family member” with a serious health condition as defined in the law. Benefits are NOT available due to the serious health condition of the covered employee.

“Serious Health Condition” means an “illness, injury, impairment or physical or mental condition”, which includes any of the following:

1.    In-patient care or continuing treatment by a health-care provider, including any period of incapacity or subsequent treatment in connection with in-patient care. (a) “Period of incapacity” means inability to work, attend school or perform other regular daily activities due the serious health condition, treatment therefore, or recovery there from. OR

2.    Continuing treatment by a health-care provider, which involves one or more of the following: (a)    A period of incapacity (inability to attend work, school, etc.) for more than three consecutive calendar days, that also involves.
(i)    Treatment two or more times by a health-care provider.
OR
(ii)    Treatment by a health-care provider on at least one occasion, which results in a regime of continued treatment. Treatment includes prescription drugs, such as antibiotics. Regimes, such as resting, drinking fluids, taking aspirin, which can be initiated without visiting a health-care provider, are not sufficient.

3.    Any incapacity due to pregnancy or pre-natal care.

4.    Conditions not currently incapacitating but which require multiple treatments.

5.    Any period of incapacity or treatment for such incapacity due to chronic serious health condition.

6.    A period of incapacity, which is permanent or long-term due to a condition for which treatment may not be effective.

The above-listed inclusions are broadly stated and there are refinements and exclusions, which should be evaluated in any given situation.

Who is eligible for Family Leave Insurance benefits? An employee can collect benefits if he or she is currently employed in “covered employment” or out of “covered employment” for less than two weeks. Employment, including employment with governmental entities, covered under the New Jersey Unemployment Compensation Law is covered with respect to Family Leave Insurance.

Notwithstanding the above, an employee is not qualified for any period that:

The employee receives temporary disability benefits from any source;
The employee receives unemployment insurance benefits;
The employee receives full salary or paid time off;
The employee is working;
The employee is under family leave, which did not start while the claimant was a covered individual or within fourteen days of the claimant’s last date of work;
The employee was on family leave for the care of a family member and the care recipient was not under the care or supervision of the health-care provider;
The employee is out of work due to a stoppage of work, which exists because of labor dispute at the claimant’s place of employment; or
The employee has been discharged by the most recent employer for gross misconduct under applicable unemployment compensation law.

How much is the benefit and for how long does it last? An employee can receive a maximum of six weeks of Family Leave Insurance benefits in a twelve-month period, which is denoted as the three hundred sixty-five consecutive days that begins with the first day that the employee establishes a valid first claim for Family Leave Insurance benefits. An employee may re-establish a claim within the same period for a different care recipient, or a claim during or following employment with a different employer. However, the employee cannot receive more than six weeks of benefits during the twelve-month period. In the event of care for a family member with a serious health condition, claims may alternatively be filed for intermittent weeks or for forty-two intermittent days during the twelve-month period.

The weekly benefit rate is based on the employee’s average weekly wage in the eight calendar weeks immediately before the week in which the benefit commences. The rate is two-thirds of this wage, up to a maximum of Five Hundred Forty-Six ($546.00) Dollars.

What steps must an employee take to apply for these benefits? If an employee intends to take the benefits to participate in providing care for a family member with a serious health condition, he or she must give the employer reasonable and practicable notice, unless the time of the leave is unexpected or the time of the leave changes for unforeseeable reasons. The request must be supported by a medical certification. In addition, a reasonable effort must be made to schedule the leave so as not to unduly disrupt the operations of the employer. If possible, the employee will be required to provide a schedule of the required leave days. In the case of an employee who intends to claim insurance benefits to bond with a newborn or newly adopted child, thirty days prior notice must be given, except if the leave is unforeseeable. Failure to do so will result in a loss of two days leave.

This analysis is intended to highlight the most salient provisions of the Family Leave Insurance benefits law, and has been derived from the Family Leave Insurance Fact Sheet published by the Department of Labor as well as other sources. Details and interpretations of the law will be published in the New Jersey Administrative Code. If there are any questions relative to the application of this new benefits law, an employer should consult counsel so as to ensure proper compliance.

Stark & Stark's Community Association Group Secures Another Municipal Services Victory

dbyrne@stark-stark.com (David J. Byrne) — Fri, 26 Jun 2009 08:06:18 -0500

Trial Court Rules that Mendham Must Provide Municipal Services with respect to A Condominium's Access Road

The Mendham Knolls Condominium Association is a small condominium situated in Mendham. Access to the condominium is achieved only via Boundary Oak Lane, an approximately 156 foot long road that empties into the condominium's parking area. New Jersey's Municipal Act provides for certain enumerated services or reimbursement for the cost of services to a qualified private community in "the same fashion as the municipality provides these services on public roads and streets." Mendham argued that it need not provide either services, or reimbursements, in relation to Boundary Oak Lane as it was more akin to a driveway and Mendham does not provide any services in relation to driveways. The condominium argued that Boundary Oak Lane is a road and eligible for services or reimbursements as Mendham does provide services on township roads.

The court first found that the applicable road-related standards are those in place currently, not at the time of the road's original construction. The court then relied upon pictures of the road and neighborhood as well as how it had a "drive" for a name along with some other factors. It concluded and ruled that Mendham must comply with the Municipal Services Act with respect to Boundary Oak Lane. This condominium will now have the snow and ice removed from Boundary Oak Lane as well as have their related street lighting costs reimbursed. This will certainly help the community balance its budget in upcoming years, without assessments.

Condominiums and associations must assert their rights under the Municipal Services Act even in the face of often dismissive municipalities.

How to Immediately Cut Your Company's Energy Costs and Control Energy Expenses in the Future

rdeluca@stark-stark.com (Stark & Stark) — Thu, 25 Jun 2009 08:01:10 -0500

Vincent J. Mangini, Shareholder in Stark & Stark’s Real Estate, Zoning & Land Use group, will present a seminar entitled How to Immediately Cut Your Company’s Energy Costs and Control Energy Expenses in the Future in conjunction with New Jersey’s Clean Energy Program and its New Jersey SmartStart Buildings program. The seminar is hosted by CrunchEnergy, an energy services company dedicated to helping businesses reduce energy costs.

The seminar will be presented from 8:00 AM – 12:30 PM September 9, 2009 and September 10, 2009. The September 9th event will be held at The Villa in Mountain Lakes, New Jersey, and the September 10th event will be held at the Sheraton in Eatontown, New Jersey.

The seminar will provide actionable recommendations to cut energy costs immediately, while providing the insight to prepare for upcoming regulations and impending laws and current initiatives, like New Jersey’s Energy Master Plan. The material shared at the event will benefit New Jersey-based building owners, business owners, CFOs, energy managers and facilities managers - anyone who makes decisions about energy for buildings of 20K square feet or more.
Topics to be discussed include:

Quick and no-cost building upgrades to reduce energy consumption
Reducing peak demand
Emerging technologies and incentive opportunities
State Renewable Energy Tax Exemption
Grants and loans for energy efficient projects
Energy audits
NJ Smart Start Buildings Pay-for-Performance Programs
And other related topics.

Mr. Mangini will present the seminar with Joseph Carlamere of New Jersey SmartStart Buildings. Mr. Carlamere is involved in environmental consulting, company TRC’s design and development of the sector initiative of New Jersey’s Clean Energy Program as part of the team developing programmatic strategies that resonate to the following sectors: industrial, institutional, multi-family, higher education and hospitality. He also manages the Local Government Energy Audit Program for the NJOCE and the BPU.

Additional information and details on how to register for the events is available online here.

How Restrictive Covenants May Affect Your Property

bstrapp@stark-stark.com (Barbara Strapp Nelson) — Wed, 24 Jun 2009 08:10:46 -0500

Most transfers of title to real estate are made subject to "easement and restrictions of record, if any." Easements may be varied, but usually involve access rights for utilities, or perhaps a driveway easement to share a driveway with a neighbor. But what about those restrictions? What are they?

Most restrictions can be found as covenants contained in a deed, in a declaration of restrictions or on a legend on a filed map. Restrictions generally limit or otherwise affect how a property owner can use their lands. Perhaps they involve the distance a structure must be set back from a property line or other structure (unrelated to zoning setback requirements). Or, maybe they involve how a structure may be used (unrelated to land use ordinances). Or, they might even limit who can use the property. Some restrictions are referred to as nuisance restrictions because they prohibit the use of the property conveyed for any noxious or offensive purpose. Restrictions against public policy, such as those restricting use due to race, national origin, etc., are not enforceable.

Restrictions set forth in a deed transferring title, or those appearing in earlier deeds in the chain of title, are binding on a property owner. This is one of many reasons to perform a title search when buying a property - to determine if there are any recorded restrictions which will affect an owner's use of the property.

Some of the more common restrictions involve a neighborhood plan which may impose limitations on the size and dimensions of lots, the location of structures on a lot or how the structures may be used. Many of these types of restrictions were originally imposed prior to the existence of local zoning ordinances. Thus, a land owner could impose his/her own restrictions on a tract which was to be developed. Sometimes, associations were created with authority to approve or disapprove new structures on the lots. In more recent times, developers impose restrictions on subdivisions which are meant to supplement existing zoning requirements, often imposing more extensive restrictions in an effort to preserve a particular neighborhood scheme as envisioned by the developer.

Restrictions can also be imposed by property owners conveying only a portion of their property who want to benefit or protect the remaining portion they are retaining. For example, a property owner who subdivides off part of his/her property may want to prevent anyone owning the newly created lot from building within a certain distance (which may exceed the local zoning requirements) from their remaining lot. The subdividing property owner may also want to impose a restriction to retain the right to approve any new structure on the new lot.

Unless a restriction is deemed to be personal to the grantor imposing it, or there is a specified termination date, the passage of time alone will not serve to terminate a restriction.

As a result of the binding characteristics of restrictions, it is important to review the back title to a property being purchased to ascertain what, if any, restrictions may affect ownership rights to the property.

Incapacity During Divorce Proceedings

mesmith@stark-stark.com (Megan E. Smith) — Tue, 23 Jun 2009 08:08:49 -0500

If a person becomes incapacitated during a divorce proceeding, a guardian should be appointed by the Court in order to properly to govern the individual and their property. See Kingsdorf v. Kingsdorf, 351 N.J. Super. 144, 146 (App. Div. 2002).

In order to do so, an application to the Court by the party who wishes to be come the guardian must be made. Generally, when parties are in the midst of divorce litigation, the competent spouse is prohibited from becoming the guardian as it is usually deemed to be a conflict of interest. Upon appointment of a guardian by the Court, the guardian may move forward on the incapacitated spouse’s behalf in order to negotiate and finalize the divorce proceedings. This includes, but is not limited to entering a Property Settlement Agreement and Final Judgment of Divorce. This may even include filing the complaint for divorce on behalf of the incapacitated spouse.

Friends of Peapack-Gladstone v. Borough of Peapack-Gladstone Land Use Board, et al. Tolling of Development Approvals under N.J.S.A. 40:55D-21

vmangini@stark-stark.com (Vincent J. Mangini) — Mon, 22 Jun 2009 08:03:35 -0500

Under N.J.S.A. 40:55D-21, if a developer is “barred or prevented, directly or indirectly,” from moving forward with an approval obtained pursuant to the Municipal Land Use Law (MLUL) “during the period of approval” on account of the institution of “a legal action” or the issuance of “a directive or order” by, among other government actors, a “political subdivision” for the purpose of “protect[ing] the public health or welfare” at a time when “the developer is otherwise ready, able and willing to proceed[,]” then - in such instance - the period of approval shall be suspended for so long as “said legal action is pending or such directive or order is in effect.”

Recently, in the matter of Friends of Peapack-Gladstone v. Borough of Peapack-Gladstone Land Use Board, et al., the Appellate Division of the New Jersey Superior Court interpreted this provision of the MLUL and decided, among other things, that the running of the period of approval for 18 golf cottages was tolled when a zoning officer declined to issue a building permit for the construction of the second such cottage, “because of his perception that the project was being advertised in a manner contrary to the Board’s prior approvals.” In the Court’s view, the zoning officer was “plainly” acting as an agent of the Borough, a political subdivision, in rendering this decision which, according to the Court, “was manifestly an effort on his part . . . to ‘protect the public health and welfare’ in the Borough [and] . . . had the direct and indirect effect of halting the developer’s work on the project, at a time at which the developer was evidently ‘ready, willing and able to proceed’ with the building of the next dwelling.”

The Appellate Division’s decision in Friends of Peapack-Gladstone v. Borough of Peapack-Gladstone Land Use Board, et al. may be viewed on WestLaw at 2009 WL 1643315 (N.J.Super. A.D.) and has been approved for publication.

Stark & Stark Shareholder Comments on Senators' Amendments to Eminent Domain Legislation

rdeluca@stark-stark.com (Stark & Stark) — Fri, 19 Jun 2009 08:09:53 -0500

Timothy P. Duggan, Shareholder of Stark & Stark’s Condemnation group, was quoted in the June 16, 2009 NJ Biz article, Senators announce amendments to eminent domain legislation. The article discusses the recent amendments to State Senate majority leader Steve Sweeney (D-West Deptford) and State Senator Ronald Rice’s (D-Newark) previously proposed eminent domain legislation, which would allow redevelopment in the state while still providing protection and fair compensation to property owners if eminent domain is required.

Mr. Duggan states that you need a good compromise by making certain that redevelopment is allowed to go forward in some areas, such as inner cities, while curbing abuses in areas that are truly not blighted. Mr. Duggan also comments on effects the recent economy has had on several redevelopment plans in the area.

You can read the full article online here.

What Associations Need To Know When Considering Requests By Disabled Owners For A "Reasonable Accommodation"

dbyrne@stark-stark.com (David J. Byrne) — Thu, 18 Jun 2009 08:03:43 -0500

In general, the United States Fair Housing Act makes it unlawful for a condominium, cooperative and/or homeowners association to discriminate in the terms, conditions or privileges of the sale or rental of housing, or in the provision of services in connection with a dwelling, because of race, familial status, gender, religion or disability. When it comes to the "disabled", unlawful discrimination is further defined as the condominium's, cooperative's or homeowners association's failure to make a "reasonable accommodation" in its practices, policies, etc. so that an owner can have an "equal opportunity to use and/or enjoy a dwelling". Specifically, the applicable federal regulation provides: "(a) It shall be unlawful for any person to refuse to permit, at the expense of a handicapped person, reasonable modifications of existing premises, occupied or to be occupied by a handicapped person, if the proposed modifications may be necessary to afford the handicapped person full enjoyment of the premises of a dwelling". In this regard, condominiums, cooperatives and/or homeowners association often receive requests from disabled owners that they be allowed to modify a common facility, building component, etc., at their expense. For example, a disabled owner may ask for the right to install a ramp to her unit to allow for wheelchair access to the unit. When considering a "reasonable accommodation" request, as they are commonly called, the condominium, cooperative and/or homeowners association should not condition its approval of the request on the disabled person's promise or duty to restore the area in question back to its original condition. In fact, it is clear that only with request to rentals, not owners, can this be done. The applicable federal regulation provides: "In the case of a rental, the landlord may, where it is reasonable to do so, condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted."

Condominiums, cooperatives and homeowners associations should consult with counsel once it receives any owner or resident request for a "reasonable accommodation" pursuant to the United States Fair Housing Act.

New Jersey Judiciary Foreclosure Mediation Program Update

acofran@stark-stark.com (Allyson Cofran) — Wed, 17 Jun 2009 08:00:53 -0500

On May 18, 2009, the United States Bankruptcy Court for the District of New Jersey issued a General Order with respect to the New Jersey Judiciary Foreclosure Mediation Program. This Order clarifies that participation in the Foreclosure Mediation Program, where the homeowners have filed for Bankruptcy, does not violate the automatic stay. Furthermore, a mortgagee does not have to obtain relief from the automatic stay to participate in the Foreclosure Mediation Program.

In addition, this Order makes it clear that in Chapter 13 cases, the debtor is obligated to continue to make regular monthly mortgage payments as well as required payments to the Chapter 13 trustee during the time the mediation process is pending.

This Order further makes clear that if the automatic stay was in place during participation in the program, it remains in place. If the mortgagee wishes to continue with any foreclosure proceeding, relief from stay must be granted by the Bankruptcy Court.

Finally, this Order directs that any resolution or settlement, including any modification to the mortgage, must be approved by the Bankruptcy Court. If any settlement impacts a provision of a Chapter 13 Plan, a modified plan must be filed.

Schmidhausler v. Planning Board of Borough of Lake Como: Remedy for Vote by Ineligible Board Member

vmangini@stark-stark.com (Vincent J. Mangini) — Tue, 16 Jun 2009 08:08:29 -0500

Recently, in the matter of Schmidhausler v. Planning Board of Borough of Lake Como, the Appellate Division of the New Jersey Superior Court addressed, among other issues, what the remedy for an aggrieved party should be when a municipal board renders a decision on an application for development under the Municipal Land Use Law that is tainted by the failure of one of its members to read or listen to the testimony presented on the matter during a prior meeting in violation of N.J.S.A. 40:55D-10.2. In this case, the planning board voted to approve an application for a subdivision with variance relief by a narrow one-vote margin. The plaintiffs argued that the remedy in such instance should be the striking of the disobedient board member’s vote. The Appellate Division, however, was not persuaded by plaintiffs’ suggestion, especially here, where such action “would result in a tie vote and . . . an automatic denial of the application.” Instead, the Court opted to remand the matter to the planning board for another round of deliberation and a new vote after “those who had not attended one or all of the hearings in this matter review the transcript of any meeting or meetings that they may have missed[ and] certify they have done so[.]” According to the Court, this course of action was preferable to “denying the application outright or putting all of the parties to the cost and expense of an entire new hearing[.]”

By this case, the Appellate Division has provided a clear message to all parties involved in the prosecution and disposition of applications for development under the MLUL that a failure on the part of municipal board members to abide by N.J.S.A. 40:55D-10.2 - while not triggering a new hearing - will likely cause the board’s decision to be deliberated and voted on anew. The Appellate Division’s decision in Schmidhausler v. Planning Board of Borough of Lake Como may be viewed on WestLaw at 2009 WL 1491306 (N.J.Super. A.D.) and has been approved for publication.

FDA Issues Hydroxycut® Warning, Makers Issue Voluntary Recall

khart@stark-stark.com (Kevin M. Hart) — Mon, 15 Jun 2009 08:08:57 -0500

Hydroxycut®, the group of dietary supplements which claim to be fitness and weight loss aids, have recently been linked to severe, and sometimes life threatening injuries. Recent reports state that these injuries include damage to the liver, kidneys and other internal organs, rhabdomyolysis (severe muscle damage), cardiovascular disorders and even death. On May 1, 2009, the United States Food and Drug Administration (FDA) issued a warning urging consumers to discontinue the use of the supplements due to the severe health dangers associated with Hydroxycut®. Following the warning from the FDA, the makers of Hydroxycut® issued a voluntary recall of the supplements.

These supplements include Hydroxycut® Regular Rapid Release Caplets, Hydroxycut® Caffeine-Free Rapid Release Caplets, Hydroxycut® Hardcore Liquid Capsules, Hydroxycut® Max Liquid Capsules, Hydroxycut® Regular Drink Packets, Hydroxycut® Caffeine-Free Drink Packets, Hydroxycut® Hardcore Drink Packets (Ignition Stix), Hydroxycut® Max Drink Packets, Hydroxycut® Liquid Shots, Hydroxycut® Hardcore RTDs (Ready-to-Drink), Hydroxycut® Max Aqua Shed, Hydroxycut® 24, Hydroxycut® Carb Control and Hydroxycut® Natural. Hydroxycut® supplements are manufactured and distributed by Iovate Health Sciences and MuscleTech Research and Development, Inc.

Stark & Stark Shareholder Presents Seminar on Minimizing Risk, Avoiding Litigation and Alternative Dispute Resolution

rdeluca@stark-stark.com (Stark & Stark) — Fri, 12 Jun 2009 08:33:42 -0500

David J. Byrne, Shareholder and Co-Chairperson of Stark & Stark's Community Association Group presented materials related to minimizing risk, avoiding litigation and alternative dispute resolution, in conjunction with Donald B. Brenner, Esquire, during a seminar entitled "Managing Costs and Risks in Challenging and Uncertain Economic Times". The presentation was held at the Meadowlands Exposition Center in Secaucus, New Jersey on Wednesday, May 13, 2009.

Mr. Byrne focused his presentation on how condominiums, homeowners associations and cooperatives can avoid and/or resolve conflicts through alternative dispute resolution, as well as comply with New Jersey in respect of alternative dispute resolution. He discussed mediation, arbitration and ADR. Mr. Byrne also discussed how to best employ ADR in the context of community associations, to best ensure rule compliance, dispute resolution and the absence of litigation.