New Jersey Law Blog

Governor Corzine signs bill creating Solar and Wind Energy Commission

Vincent J. Mangini — Mon, 08 Feb 2010 08:56:55 -0500

Among the several pieces of “green” legislation, that Governor Jon Corzine signed just prior to leaving office was a bill (A3218) that creates a new, temporary 11-member public body to be known as the Solar and Wind Energy Commission. This new law - approved as P.L. 2009, c. 239 - authorizes the Commission “to conduct a thorough and comprehensive study to examine State owned property and determine where solar and wind energy installations would be feasible[,]” which shall include a discussion of the financial implications of such installations, projected energy and financial savings, potential use of net metering and a host of other topics. Although there is no limit to the number of documents that the Commission may produce under the statute relating to this study, it must submit to the Governor and the Legislature and make available to the public a final report containing its findings, conclusions and recommendations within one year after its organization. Thirty days thereafter, the Commission shall expire. It will be interesting to see what this year-long effort will generate.

Stark & Stark Employment Group Chair Comments on Protocol for Broker Recruiting

Stark & Stark — Thu, 04 Feb 2010 09:27:00 -0500

Stark & Stark Employment Group Chair, Thomas B. Lewis, was quoted in the January 20, 2010 RIABiz.com article, Broker protocol may be endangered by complexities as membership starts to explode.

Although recently, a large number of firms have joined the Protocol for Broker Recruiting, three big companies have put limits on the extent to which the no-fault poaching truce applies to them. Though the restrictions have so far been fairly minimal, the number of signatories and the addendum letters by Merrill Lynch, LPL and Ameriprise are raising questions in some lawyers’ minds about whether the Protocol may eventually become difficult to use.

Mr. Lewis states, “You have such an explosion of members, it’s become unwieldy. What’s happening now is that there are certain companies that are trying to limit their exposure under the Protocol, which makes it even more unwieldy.”

You can read the full article here. (PDF)

Governor Corzine Signs Solar Farm Bill

Vincent J. Mangini — Thu, 04 Feb 2010 08:37:42 -0500

On January 16, 2010, just prior to leaving office as Governor, Jon Corzine signed into law what I am going to refer to as the "solar farm bill" (P.L. 2009, c. 213), which authorizes a person who owns preserved farmland to install and operate biomass, solar or wind energy generation facilities, structures and equipment on the farm for the purpose of generating power or heat. Among other things, this bill also adds to the list of permitted activities that may be conducted on commercial farms "the generation of power or heat from biomass, solar, or wind energy" and, as such, it will serve as a nice companion to a recent amendment to the Municipal Land Use Law (P.L. 2009, c. 35), which allows a “renewable energy facility” to be located on a parcel or parcels of land owned by the same person comprising at least 20 contiguous acres within every municipal industrial zoning district, signed into law by the former Governor in March of last year.

Summertime Family Law Issues

Stark & Stark — Wed, 03 Feb 2010 08:00:51 -0500

In this installment of Legal Lines, Stark & Stark Divorce attorney, David Beaver, addresses various issues that commonly arise between divorced individuals during the summer months. These tips will hopefully help keep the potential tension level between parties lower than the rising summer temperatures. Some of the most common problems include:

Work Related Child Care Expenses
Summer Camp Enrollment and Expense Allocation
Vacation Parenting Time Requests
Child Support Reductions During Summer Months

If you have any additional questions, feel free to contact the Stark & Stark Divorce Group at 1-877-678-Divorce.

Oppressed Minority Shareholders Should Be Afforded Protection

Stark & Stark — Tue, 02 Feb 2010 10:22:10 -0500

Stark & Stark Litigation Shareholder, Scott I. Unger, authored the article, Oppressed Minority Shareholders Should Be Afforded Protection: An argument for a revision of the Limited Liability Act, for the February 1, 2010 edition of the New Jersey Law Journal.

The article discusses the fact that the minority oppression statute, which prohibits majority shareholders in closely held corporations from oppressing minority shareholders, was not specifically incorporated in the statutes governing limited liability corporations. Mr. Unger states that the business section of the New Jersey State Bar Association is considering recommending changes to statutes governing limited liability corporations, one major change would be to specifically state that minority members in an limited liability corporation may sue if they are oppressed. Mr. Unger goes on to discuss the importance of the incorporation of those protections and believes that Court's of Equity should utilize and apply the minority oppression statute to limited liability companies.

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

Alternatives to Divorce Litigation: Mediation, Arbitration, Collaborative Divorce and Four-Way Conferences

Maria P. Imbalzano — Mon, 01 Feb 2010 08:15:42 -0500

Divorce is difficult; emotionally, physically and financially. The issues in divorce lend themselves to intense feelings, which even on a good day, can interfere with the process. Yet, many divorce cases can be resolved in a fair and equitable manner without the need to battle it out to the bitter end through the court system.

Currently, our family court system is over-burdened. There are not enough judges to hear the thousands of new cases that are filed in our State every year. Therefore, in order to move your case along, you may wish to consider alternatives to the litigation process, or avenues you can access to supplement the process, thereby making the system work better for you.

Mediation. Mediation is a process in which two parties (with or without lawyers) meet with a third party, the facilitator or mediator, to help resolve disputes. This meeting takes place in an informal setting, where those involved frame the issues and discuss alternatives for settlement, all with the help of the mediator. The issues are discussed, one by one, until an agreement is reached. The mediator does not determine the outcome; the parties do. When all issues are resolved, the mediator drafts a Memorandum of Understanding which the parties take to their attorneys for review. The intent of the process is to reach agreements that will be placed into a formal Interspousal Agreement signed by both parties.

Arbitration. Different from mediation, arbitration is similar to a trial; however, it is a less formal process that takes place before an arbitrator, not a judge, in a conference room as opposed to a courtroom. Many times the arbitrator chosen by the parties is a retired judge or attorney who has expertise in the area of family law. The arbitrator listens to the testimony of each party and their witnesses through the questioning of the attorneys. Documentation is also presented to bolster each party’s position. Once each side has presented their case, the arbitrator makes a decision. While similar to a trial, the key differences are: (1) the process is less formal and more flexible; (2) the parties choose the arbitrator, whereas you cannot choose your judge; (3) the parties, along with the arbitrator and attorneys set the schedule, so that you’re not beholden to the limited time schedule of the court; and (4) a decision will be made promptly.

Collaborative Divorce. This is a fairly new approach to divorce, wherein, the parties and their attorneys sign a Participation Agreement committing to resolve all divorce issues through negotiation and not litigation. The attorneys assist their clients in resolving conflicts through cooperative techniques rather than adversarial strategies. This is accomplished through a series of conferences in which the parties work together toward a negotiated settlement. In the event the process is not successful, the attorneys must withdraw from the representation of their respective clients, and the parties must hire new counsel before proceeding with litigation.

Four-Way Conferences. While the above methods are less formal than trial, an even more informal method for resolving differences is the four way conference. This generally takes place during the litigation process, but before you are too deeply into case. The parties and their
attorneys meet to discuss the outstanding issues in the case with a view towards solving, or at least narrowing, the issues before going to court.

All issues in a divorce case can be resolved by using any of the above methods; however, both parties must agree to engage in any one of these forms of alternate dispute resolution before proceeding in this manner.

Expiration of Permits Extended by Amendment to Permit Extension Act

Dolores R. Roberts — Mon, 25 Jan 2010 09:24:38 -0500

On Monday, January 18, 2010, as one of his last acts before leaving office, former Governor Corzine signed an Amendment to the Permit Extension Act (A4347) (the “PEA Amendment”) further extending the validity of most land use and construction approvals and permits (hereinafter “Approvals”), which would otherwise expire, until at least December 31, 2012. Due to the recession, the Permit Extension Act of 2008, N.J.S 40:55D-136.1, et seq., (the “PEA”) was initially adopted in 2008 to provide for a tolling of expiration for specified Approvals through at least July 1, 2010 (together with additional extensions thereafter that might apply). In order for the validity of an Approval to be extended under the PEA, it must have been valid or issued on or after January 1, 2007.

The time period for validity of Approvals is now further extended by the PEA Amendment until at least December 31, 2012 before the time begins to run on the validity of an Approval. Subsequent to December 31, 2012, permits and approvals have a phased expiration whereby any unexpired portion of the term of the Approval further extends the Approval, limited to up to six (6) months from December 31, 2012, i.e., no later than June 30, 2013. In addition to the foregoing, a developer may exercise any unexercised extension applicable to such Approval. For example, if a developer were issued a permit on November 30, 2010 that was valid for two (2) years with the right to an additional one (1) year extension, the PEA Amendment would stop the clock on the expiration of this permit that would otherwise expire on November 30, 2012 and extend the expiration of the permit from November 30, 2012 to June 30, 2013. Should the developer be timely granted the one (1) year extension applicable under this scenario, the June 30, 2013 expiration would thereby be extended until June 30, 2014.

The Amendment is applicable to most municipal, county, regional and state development permits and approvals, but sets forth specific exceptions and limitations. Property owners and developers with permits and approvals that are effective on or after January 1, 2007 should seek legal advice to determine the effect the PEA and the PEA Amendment may have on their development rights.

Recently Passed New Jersey Foreclosure Fairness Act Effective January 26, 2010 and February 16, 2010

Bari J. Gambacorta — Fri, 22 Jan 2010 12:04:40 -0500

The State of New Jersey recently (on January 17, 2010) passed the New Jersey Foreclosure Fairness Act (the “Act”) which will effect how foreclosures cases are handled in the State of New Jersey. The Act becomes effective February 16, 2010, however, certain notice requirements become effective January 26, 2010 as noted below.

RESIDENTIAL UNITS WITH TENANTS
A person who takes title to a residential property containing tenants by way of a sheriff’s sale or deed in lieu of foreclosure, must provide notice no later than five (5) business days after the sale, to any tenants of the property informing them that ownership has changed hands and that the tenants are not required to vacate the premises.

This notice must be served by the new owner on the tenants by regular and certified mail, must be in both English and Spanish, must contain contact information to whom future rent is due and include a basic explanation of the tenant’s rights under the “Anti-Eviction Act”. There is a particular form of notice required that the Department of Community Affairs will make available on its website in a printable English and Spanish format that may be used. (see www.state.nj.us/dca/ search Foreclosure Fairness Act)

The notice must also be posted prominently on the front door of each tenant’s unit. If the property contains ten (10) or more units, the new owner must post the notice in a common area of each residential building or structure on the property.

A similar notice with some additional information is also required if a summons and complaint or initial communication by a foreclosing creditor who seeks the tenant to vacate prior to the transfer of the property.

There must be no communication meant to persuade the tenant to vacate the premises except by way of a bona fide monetary offer, which must be in a made in a specific manner, and from which the tenant would have five (5) business days from receipt of the offer to accept and vacate or reject the offer. Acceptance must be in writing. No person or person’s agent may (1) make any misrepresentations of the rights of the tenant under the “Anti-Eviction Act” in order to induce the tenant to vacate the property; (2) state actions the owner may take against the tenant or imply the tenant is obligated to accept the offer; or, (3) any other form of harassment, such as failure to maintain the premises or rent increase in violation of municipal rent control or rent increase in violation of the Anti-Eviction Act or any other State, Federal or Municipal ordinance.

Any violation of the notice requirements or treatment of the tenants may result in triple damages or damages in the amount of $2,000.00 per violation plus attorney’s fees and costs. Further civil or criminal actions may also be commenced against the creditor who violates this Act.

NOTICE REQUIREMENTS EFFECTIVE JANUARY 27, 2010
This Act requires that creditors serving foreclosures summons and complaints on residential property must within ten (10) days of service of the summons and complaint, notify the municipal clerk where the property is located. This will also affect any foreclosures filed 30 days before February 16, 2010 which must also be reported to the respective municipal clerks. The creditor must also notify the municipality if the owner of a residential property vacates or abandons a property on which a foreclosure action has been initiated. There is also a requirement to specify in the Foreclosure Complaint and notify the municipal Clerk with specified Act defined details if the property being foreclosed is an “Affordable Housing” unit. This notice must also be supplied to the municipal clerk within 10 days of the summons and complaint’s service.

After such notice if such property is found to be a nuisance or in violation of any applicable State or local code, the municipality must notify the creditor, whose responsibility it will be to correct the nuisance or violation. If the municipality expends public funds to abate a nuisance or correct a violation the municipality shall have the same recourse against the creditor as it would have against the “title owner”.

FORECLOSURE REPORTING REQUIREMENTS
Any creditor that initiates a mortgage foreclosure action in the Superior Court of New Jersey must report to the Department of Banking and Insurance, on a quarterly basis and in a specific format (organized by municipality), information about the number of mortgage foreclosures initiated by the creditor.

FORBEARANCE PERIOD FOR HIGH RISK MORTGAGE FORCLOSURES
If a foreclosure action is filed subject to the Fair Foreclosure Act, on a “high risk” mortgage loan, must grant the borrower a six (6) month forbearance upon request of the borrower to permit the borrower to pursue a work out, loan modification or refinance.

A “high risk loan” includes those loans that are interest only with a future reset rate; has a reset mortgage interest rate that increases the interest rate; contains payment option plan or “pick a payment” plan; contains a negative amortization schedule; is a subprime loan; contains an enforceable prepayment penalty; or, is a high cost home loan as defined by the New Jersey Home Ownership Security Act A subprime loan would include a consumer transaction secured by the consumer’s principal dwelling if it carries a rate of interest that exceeds the average prime offer rate as of the date the interest is set by 1.5 or more percentage points for loans secured by a first lien or 3.5 percentage points for loans secured by a subordinate lien. .

During this six (6) month period, the interest rate on the subject mortgage can not increase and the creditor may take no further action to pursue foreclosure. Notice of the forbearance right must be served with the summons and complaint. If the borrow requests such a forbearance, it shall begin upon receipt of the borrower’s request.

The forbearance notice must be include whether the loan is eligible to receive forbearance, that the borrower has the right to request forbearance no later than thirty (30) days after receipt of the summons and complaint; contact information as to where to send the request and that upon receipt of the request, the creditor shall inform the court to place a six (6) month stay on the foreclosure action. Once the forbearance period begins the borrower and creditor must participate in the foreclosure mediation process.

Should the borrower vacate the property anytime during the forbearance period, the forbearance period shall end. The forbearance right will only be effective until February 16, 2012 at which time this right shall expire.

Stark& Stark Shareholder Discusses Hamilton Square ShopRite Expansion Plans

Stark & Stark — Thu, 21 Jan 2010 09:01:13 -0500

Gary S. Forshner, Shareholder in Stark & Stark's Real Estate Zoning & Land Use Group, was quoted in the January 13, 2010 Trenton Times article, Developer shares plans for enlarged Hamilton ShopRite, and the January 14, 2010 Trenton Times article, ShopRite decision on hold in Hamilton.

The articles discuss the recent plan to renovate the ailing Hamilton Square Shopping Center and enlarge its ShopRite supermarket from 53,000 square feet to 85,789 square feet. The shopping center, located at the corner of Route 33 and Yardville-Hamilton Square Road, currently has a vacancy rate of 30 percent or more.

The plans were introduced last week to the township zoning board and a decision will be made after the board meets for a final vote on the proposal on January 26, 2010 at the Hamilton Township Municipal Building. Mr. Forshner who represents Levin Properties, which owns the site, states, "We need to make sure that the locations along Route 33 are up-to-date, well-tended and rehabilitated. You don't want to end up with a blight situation along Route 33."

Common Misconceptions of Divorce Law (Part Two)

Stark & Stark — Wed, 20 Jan 2010 08:06:49 -0500

In this installment of Legal Lines, Stark & Stark Divorce attorneys, Megan Smith and Joseph Visco, continue the discussion regarding some common misconceptions of divorce litigation. Joseph Visco primarily focuses his family law practice in Pennsylvania, and notes various distinctions between New Jersey and Pennsylvania family law. These differences are discussed by the panelists, and include:

Emancipation Differences In New Jersey And Pennsylvania
College Contribution Obligation Of Divorced Parents
Underemployment and Imputed Income
Payment of Child Support Arrearages
Setting Up A Child Support Probation Account

If you have any additional questions, feel free to contact the Stark & Stark Divorce Group at 1-877-678-Divorce.

Legal Lines - Episode 4 from Stark & Stark on Vimeo.

Bankruptcy Do's & Don'ts for Personal Injury Attorneys

Stark & Stark — Wed, 20 Jan 2010 08:04:17 -0500

Stark & Stark Bankruptcy & Creditor’s Rights Group Chair, Timothy P. Duggan, authored the January 18, 2010 New Jersey Law Journal article, Bankruptcy Do’s & Don’ts for Personal Injury Attorneys: Ease your pain with a useful road map for the system.

The article discusses the recent increase in consumer bankruptcy filings and how a bankruptcy filing can impact a personal injury lawsuit. Mr. Duggan offers several “Do’s & Don’ts” in order to assist personal injury lawyers through the United States Bankruptcy Code after their clients have been forced to file for bankruptcy.

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

Governor Corzine Prohibits Enforcement of Palimony Agreements Unless in Writing

Megan E. Smith — Tue, 19 Jan 2010 11:24:07 -0500

On his last night as Governor of the State of New Jersey, Governor Corzine has supposedly signed into law a bill prohibiting the enforcement of "palimony" agreements unless such agreements are in writing (S-2091/ACS for A4296, 3833 [Scutari, Cardinale, Stender,Carroll/Stender, Carroll]). The passage of this bill has an important impact on non-dissolution family law, where persons in long-term committed relationships sans "marriage" had the potential to make a palimony claim based upon a promise to support if the relationship went south. While palimony law is primarily contract based, the new bill will require any such "promise to support" to be set forth in writing. It will be interesting to see if a mere letter or email will meet this new requirement or if same will be reduced to terms similar to pre-nuptial agreements.

Stark & Stark Shareholder Comments on Citigroup's Motion To Dismiss In Bonus Pay Class Action

Stark & Stark — Fri, 15 Jan 2010 08:03:56 -0500

Thomas B. Lewis, Shareholder and Chair of Stark & Stark's Employment Group, was quoted in the January 14, 2010 RegisteredRep.com article, Citi Files Motion To Dismiss In Bonus Pay Class Action. The article discusses Citigroup's recent decision to file a motion to dismiss a class action lawsuit filed against the firm over the terms of its financial advisor bonus pay agreements. The motion was filed with the U.S. District Court for the Southern District of New York this past Monday, January 11, 2010.

Mr. Lewis states that there is a good chance that the court will dismiss the complaint, and goes on to say, “realistically it’s an issue that’s subject to FINRA’s jurisdiction. The plaintiffs tried to get out of the FINRA arbitration by getting class action status for the case. But courts are reluctant to get involved if there is FINRA jurisdiction.”

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

Real Estate Tax Revaluation in the Princetons

Barbara Strapp Nelson — Thu, 14 Jan 2010 11:14:29 -0500

As residents of Princeton Borough and Princeton Township are well aware, their municipalities have undertaken a revaluation of the real estate within their boundaries for tax assessment purposes. The last revaluation performed in Princeton Borough and Township was in 1996. Recently, each municipality notified property owners by first class mail of their preliminary assessments. The preliminary values were established by Appraisal Systems, Inc., an independent professional appraisal firm hired by the Princetons to perform their revaluations. The date of the property revaluation is as of October 1, 2009. These new values, once confirmed, will become a property’s new assessment, effective with the 2010 tax year.

The purpose of the revaluation is to cause the tax burden to be more fairly shared by the properties, based on new tax assessments resulting from current true values of properties.

The Mercer County Board of Taxation ordered the Princetons to undergo a revaluation of the real estate within their borders when the individual assessment - sales ratios varied too widely within each municipality. This ratio is determined by dividing the assessed value of a property by an accurate sales price, with the result being a percentage. For example, if a property is assessed at $100,000 and sold for $200,000, the assessment sales ratio is 50%. By 2008, these percentages were 40% in the Borough and 47% in the Township.

The valuation of properties must be performed in accordance with state law as set forth in N.J.S.A. 54:4-1 et seq. For every property, the revaluation appraiser creates a property record card which contains specific information about the physical attributes of the property (e.g., dimensions, age, condition of any buildings, etc.) and other information which may be of assistance to the appraiser (existing appraisals, recent sales, rent amounts, etc.). The card is created with information obtained based on an actual inspection of the individual premises. If entry onto the premises is not possible, the valuation will be an estimated one.

In the Princetons, the preliminary valuations have now been established and letters notifying taxpayers recently mailed. Each taxpayer will be provided with an opportunity to attend an individual informal review of the value proposed with a representative of Appraisal Systems, Inc. At such time, Appraisal Systems, Inc. may consider revisions to its proposed valuation which may increase or decrease (or result in no change to) the proposed assessment, based on additional input from the taxpayer.

Taxpayers will have until May 1, 2010 to file an appeal with the Mercer County Board of Taxation if they are not satisfied with their new assessment. Thereafter, an appeal can be taken to the State Tax Court within 45 days, with further appeals possible.

Once the revaluation is completed and new property assessments are made by the tax assessor, a new municipal tax rate will be determined. Taxpayers will then know to what extent, if any, their taxes will change due to their new assessment.

Expanding Your Business Through Franchising

Adam J. Siegelheim — Tue, 12 Jan 2010 08:38:41 -0500

This installment of the New Jersey Legal Update podcast is an interview with Adam J. Siegelheim, member of Stark & Stark's Franchise group, and Joseph D. Ornellas, President of Orion Franchise Consulting. Mr. Siegelheim and Mr. Ornellas discuss the most common question associated with franchising: Is my business franchise-able?

Mr. Siegelheim and Mr. Ornellas discuss key things to consider when you have decided to expand your business through franchising, including, intellectual property rights, how to determine your projected return on investment and the best way to set up your system of operation which will run your franchise and in the end make it profitable for you.

You can listen to the full podcast online here. (8.4 MB)

Claims against the makers of YAZ®, Yasmin® and Ocella® Will Be Consolidated Before Judge Moss in Philadelphia County, Pennsylvania

Martin P. Schrama — Tue, 12 Jan 2010 08:09:59 -0500

A large number of claims against the makers of defective birth control products, YAZ®, Yasmin® and Ocella®, for injuries ranging from internal organ damage to deep vein thrombosis have been designated as Mass Tort cases in state court, to be consolidated for case management and discovery purposes before Judge Moss in Philadelphia County, Pennsylvania. In the Mass Tort, counsel recently argued before Judge Moss regarding discovery issues.

Defendants seek information on Plaintiffs’ use of any forms of contraceptive devices or medications. Plaintiffs object to providing such information, as it would force minor Plaintiffs to reveal their sexual history, thus discouraging Plaintiffs from proceeding with litigation. Plaintiffs also argue information, such as the use of condoms, is not relevant to the injuries suffered allegedly from the use of YAZ®, Yasmin® and Ocella®. Those discovery issues remain to be decided.

If you, or someone you know, has suffered injuries as a result of taking YAZ®, Yasmin® or Ocella®) contact one of Stark & Stark’s Mass Tort Attorneys today for a free case review.

Why Record a Deed?

Barbara Strapp Nelson — Fri, 08 Jan 2010 08:01:37 -0500

Our recording system, having its roots in England, is basically a system for determining priority of legal claims against real estate. Thus, when one acquires title to real estate, or mortgages property, those instruments affecting title are usually recorded in the county clerk’s office.

N.J.S.A. 46:21-1 entitled, “Recorded deeds or instruments as notice to subsequent judgment creditors, purchasers and mortgagees,” makes clear the purpose of our recording statutes. It states:

Except as otherwise provided herein, whenever any deed or instrument of the nature or description set forth in section 46:16-1 of this title, which shall have been or shall be duly acknowledged or proved and certified, shall have been or shall be duly recorded or lodged for record with the county recording officer of the county in which the real estate or other property affected thereby is situated or located such record shall, from time to time, be notice to all subsequent judgment creditors, purchasers and mortgagees of the execution of the deed or instrument so recorded or of the contents thereof.

N.J.S.A. 46:16-1 sets forth a non-exclusive list of instruments entitled to be recorded. While, the recording of a document does not affect it’s validity as between the parties to the document, the consequences of not recording is set forth in N.J.S.A. 46:22-1:

Every deed or instrument of the nature or description set forth in section 46:16-1 of this title shall, until duly recorded or lodged for record in the office of the county recording officer in which the affected real estate or other property is situate, be void and of no effect against subsequent judgment creditors without notice, and against all subsequent bona fide purchasers and mortgagees for valuable consideration, not having notice thereof, whose deed shall have been first duly recorded or whose mortgage shall have been first duly recorded or registered; but any such deed or instrument shall be valid and operative, although not recorded, except as against such subsequent judgment creditors, purchasers and mortgagees.

Thus, the principal purpose of New Jersey’s Recording Act is to protect subsequent judgment creditors, bona fide purchasers, and bona fide mortgagees against assertion of prior claims to land based upon unrecorded instruments.

This statutory scheme, is referred to as a “race-notice” system. A party who is a bona fide purchaser, mortgage holder, etc., for value and without any actual or constructive notice of adverse interests, is entitled to the protection of this statute.

The requirements for recording an instrument affecting title or an interest in real estate are not onerous; the instrument needs only to:

be in English or accompanied by an English translation;
bear a signature;
be acknowledged or proved as required by statute;
have the names appear typed, printed or stamped beneath the signatures of any parties to the instrument and the officer before whom it was acknowledged or proved;
have the required recording fee paid;
include the name and signature of its preparer on the first page and the tax block and lot number if the instrument is a deed conveying real property

If the instrument meets all the requirements for recording, the county recording officer will then copy it into the record and return the original document to the person submitting it for recording.

It becomes important to record all instruments affecting title to real estate to protect the recording party, as it will be generally presumed that all persons who deal with the property after that will do so with knowledge of the recorded instrument.

Common Misconceptions of Divorce Law

Stark & Stark — Thu, 07 Jan 2010 08:00:49 -0500

In this installment of Legal Lines, Stark & Stark Divorce attorneys, David Beaver and Megan Smith, devote the episode to tackling some common misconceptions of divorce litigation. If you are involved in divorce litigation, this is a “must see” episode, as many of the myths surrounding New Family law are debunked. Some of the topics covered in this episode include:

Alimony – Discussion of tax-related issues
Emancipation of children
True effect of marital fault in a NJ divorce proceeding
Inherited funds – Subject to distribution?

If you have any additional questions, feel free to contact the Stark & Stark Divorce Group at 1-877-678-Divorce.

Legal Lines - Episode 3 from Stark & Stark on Vimeo.

Community Association Managers to Require Certification?

Mark M. Wiechnik — Wed, 06 Jan 2010 08:09:08 -0500

Community Association Property Managers ("CAPM") are much different than their "property manager" brethren. In general, real estate property managers are responsible for ensuring that the apartment or condo building that they are charged with is functioning properly, much like a superintendent. CAPM's on the other hand are fiduciaries of the properties that they manage. They act on behalf of the Board on a myriad of issues. They are the first line of defense and in some cases are the face of the community. CAPM's contact, interview and bid contractors. They enter into contracts on behalf of the Association. They are responsible for the Association's finances, from tracking delinquent owners to paying vendors. They are sometimes thrust into the role of mediator in attempting to settle homeowner disputes. They are generally responsible for guiding volunteer board members in the procedures of the Association, and they are sometimes called on to interpret or explain the Association's governing documents or the law under which the Association is governed. And yet, with all of this responsibility, community association property managers in New Jersey are not required to be licensed or certified. There is no state-wide standard required for managers, no required training, no background checks, and no governing body charged with ensuring that managers have a minium amount of knowledge and/or experience.

In 2008 Senator Christopher Bateman sponsored a bill (S-759) that would certify Community Association Managers (anyone managing a condo, co-op or homeowners association), and would require anyone in the business of property management for common interest communities to be certified under standards created by the Department of Community Affairs consistent with already existing national standards. The bill would not require certification, but would prohibit those without the certification from holding themselves out as being "certified" in the field of property management. The act would also require all Associations in New Jersey to hire only certified managers, and would require that the contract between the Association and the manager include the insurance, bonding and certification requirements.

The two year certification would require a mix of schooling and experience, and would then require that the applicant pass a written examination. Each certified manger would have to be bonded in the amount of $3,000.

The requirements of the training and exam are likely to be similar to the National Board of Certification for Community Association Managers (NBC-CAM) which has created a certification for community association property managers. This certification requires classroom study and an exam involving subjects such as governance and legal matters, budgets, reserves and assessments, risk management and insurance, maintenance, contracting and human resource management. This certification, while obviously not a guarantee of superior service or compliance with each and every standard, at least sets a minium standard for those who enter this field. The certification also requires that managers:

Be knowledgeable, act, and encourage clients to act in accordance with any and all federal, state, and local laws applicable to community association management and operations.
Be knowledgeable, comply and encourage clients to comply with the applicable governing documents, policies and procedures of the Client Association(s) to the extent permitted by that Client.
Not knowingly misrepresent materials facts, make inaccurate statements or act in any fraudulent manner while representing Client Association(s) or acting as a CMCA.
Not provide legal advice to Client Association(s) or any of its members, or otherwise engage in the unlicenced practice of law.
Promptly disclose to Client Association(s) any actual or potential conflicts of interest that may involve the manager.
Refuse to accept any form of gratuity or other remuneration from individuals or companies that could be viewed as an improper inducement to influence the manager.
Participate in continuing professional education and satisfy all requirements to maintain the certification.

Manager certification has been an issue since at least 1999 when the Assembly Local Government and Housing Committee discussed the pros and cons of such a certification, related to the proposed Uniform Common Interest Ownership Act. The current bill is presently being debated in committee, and mirrors a similar bill introduced by then Assemblyman Bateman in 2006. The 2006 bill was abandoned before being put up to a vote of the Assembly. However, now more than ever, this certification may be a necessary step in the field of community management. There are new and larger associations cropping up across New Jersey, and more and more management companies being created to service these companies, some of which have no experience with condominiums, townhouses or cooperatives. While obviously not a panacea, it would be extremely helpful to give the Board of Trustees a comfort level that the manager they wish to hire has studied specific issues and subjects that will enhance their ability to serve the community. This is essential for volunteer, part-time Board Members who are often times unable to separate the good from the bad in the ever growing property management world. It may also allow the quality CAPM's out there to further distinguish themselves from those who do not fully understand the full breadth of their position, or who are unable to properly service their community.

New Jersey Clean Energy Program: Pay for Performance

Vincent J. Mangini — Wed, 06 Jan 2010 08:08:22 -0500

The New Jersey Clean Energy Program administered by the New Jersey Board of Public Utilities through its Office of Clean Energy offers a host of financial incentives. Among these is the Pay for Performance Program, which is funded by the societal benefits charge authorized by the New Jersey Electric Discount and Energy Competition Act. Under this program, a qualifying utility customer may receive up to 50% of the total cost of energy-efficient measures recommended by an energy efficiency expert, also known as a program “partner,” who the customer selects from a pre-approved list, provided that the implementation of such measures will achieve an energy savings of at least 15%. A customer participating in the Pay for Performance Program may also receive funds to offset the cost of the program partner’s services at a rate of $0.10 per square foot up to a maximum of $50,000 or 50% of the annual energy cost of the building or facility that is the subject of the application for benefits, whichever is less. There are also advanced measure incentives for combined heat and power under the program.

In order to be eligible for the Pay for Performance Program, (1) an applicant must be a customer of a regulated electric utility and/or gas utility in New Jersey, including Atlantic City Electric, Jersey Central Power & Light, Rockland Electric Company, New Jersey Natural Gas, Elizabethtown Gas, PSE&G and South Jersey Gas, and (2) the project for which an application is made must consist of one or more commercial, industrial, institutional or multi-family residential structures having over 200 kW average annual peak demand electrical usage (if the buildings are preexisting) or having at least 50,000 square feet or more of planned conditioned space (if the project calls for new construction). Individual buildings, as well as multiple buildings in complexes owned by a single person or entity, may qualify for benefits under the program provided that they meet the above criteria. Condominium associations may also be eligible to receive incentives for energy-efficient measures relating to common elements under this program.