MARY E. BRESLIN, Plаintiff-Appellant, v. NORTHGATE CONDOMINIUM ASSOCIATION, INC.; THE BOARD OF TRUSTEES OF NORTHGATE CONDOMINIUM, INC.; and WILKIN MANAGEMENT GROUP, Defendants-Respondents.
DOCKET NO. A-3464-16T2
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
November 30, 2018
Before Judges Haas, Sumners and Mitterhoff.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION.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. Submitted November 1, 2018. On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C-000276-15. Michael J. Breslin, Jr., attorney for appellant. Kates Nussman Ellis Farhi & Earle LLP, attorneys for respоndents (Mariya Gonor, of counsel and on the brief).
By way of background, the Northgate Condominiums are seventy-one units located in Washington Township, New Jersey. They were established in 1984 by the recording of the Master Deed in the Bergen County Clerk‘s Office in accordance with the New Jersey Condominium Act,
In October 2001 the Assoсiation learned of a proposal by Caliber Builders (“Caliber“) to construct senior citizen housing on an adjacent property. The Board determined that water runoff from the proposed development would damage Northgate‘s common elements and thereby diminish property values. The Northgate unit owners vehemently opposed the proposed construction and
In 2008, the Board filed suit against Caliber after the municipality approved the project. In 2013, the Board announced that it requirеd an additional assessment of $1500 per owner to “refund the reserves” from which $130,000 had been withdrawn to pay legal fees for the ongoing litigation. Less than a year later, plaintiff purchased her unit. By the time the years-long Cаliber litigation settled, the Association had incurred substantial legal and engineering fees. Accordingly, on April 28, 2015 the Board voted to impose an equal $10,000 “annual/common assessment” on each unit owner to be paid in six installments through 2018.
On September 16, 2015, Plaintiff instituted this action. The issue at trial was whether the Board had the authority to impose a $10,000 assessment on each unit owner. Plaintiff‘s position was that the assessment imposed was a
After a six-day trial, the judge entered an order of judgmеnt in favor of defendants. In her accompanying opinion, the trial judge found that the Association‘s involvement in the Caliber litigation was rooted in its duty to protect condominium property under
This appeal ensued. On appeal, plaintiff argues that the trial court erred in concluding that the assessment was a common, rather than a special, assessment.
Those negotiations resulted in a very favorable proposed reduction of Beattie‘s fees from $605,633.99 to $262,496.03. The Board, however, was concerned that the settlement would be paid using funds from the recently imposed $710,000 common assessment because the Board‘s imposition of the common assessments are subject tо attack in this appeal. Accordingly, the Board decided to request that the unit owners approve and ratify as “special assessments” all of the prior assessments and that portion of the $710,000 assessment sufficient to cover the settlement.
In that regard, on July 25, 2018 an informational “Town Hall” meeting was held wherein legal counsel presented the proposed settlement with Beattie and outlined the strategy of seeking unit owner ratification and approval of the prior assessments so as to moot this appeal. On August 14, 2018, a Notice of Special Meeting of the unit owners was mailed to all unit owners of record, scheduling a Special Meeting for September 13, 2018, for the sole purpose of
On September 13, 2018, the unit owners voted by an overwhelming margin (48 in favor, 14 against) to approve and ratify the old Board‘s assessments as “special assessments,” and to fund the legal fee settlement with Beattie. Immediately following the announcement of the results, the Board held a Board meeting open to attendance by unit owners, which was noticed in accordance with
With this development, the issues presented in this appeal are now clearly moot. “A case is moot if the disputed issue has been resolved, at leаst with respect to the parties who instituted the litigation.” Caput Mortuum, L.L.C. v. S&S Crown Servs., Ltd., 366 N.J. Super. 323, 330 (App. Div. 2004) (citation omitted). “[C]ontroversies which have become moot or academic prior to judicial resolution ordinarily will be dismissed.” Cinque v. N.J. Dep’t of Corr., 261 N.J. Super. 242, 243 (App. Div. 1993) (citation omitted). Dismissal for mootness is appropriate where “a judgment cannot grant effective relief, or there
Here, plaintiff‘s concern that the assessments were in fact special assessments has been resolved by virtue of the unit owners’ retroactive approval and ratification of the prior assessments as speciаl assessments. It is well established that even if the acts of a corporate board were infra vires due to a failure to obtain shareholder approval and/or failure to follow procedural formalities, such as voting in a properly noticed board meeting, same can be ratified after the fact.
“Acts that are ultra vires are void and may not be ratified, while infra vires acts may be. An act is ultra vires if the municipality [was] utterly without capacity to act. On the other hand, an intra vires act is one that is merely voidable for want of authority.”
[Grimes v. City of E. Orange, 288 N.J. Super. 275, 279 (App. Div. 1996) (internal citations omitted).]
The ability to retroactively ratify an infra vires act has expressly been extended to Condominium Associations. See Port Liberte II Condo. Ass‘n, Inc. v. New Liberty Residential Urban Renewal Co., LLC, 435 N.J. Super. 51, 66 (App. Div. 2014).
Ratification must be accomplished with the same formalities required for the original exercise of power. If so accоmplished, the ratification relates back to the date of the original action.
[Ibid. (internal quotations and citations omitted).]
In this case, Article VI, Section 7 of the bylaws states, in pertinent part, that
[T]he Board is authorized to levy, in any assessment year, a sрecial assessment(s) applicable to that year only, for any lawful purpose necessary for the benefit of The Condominium or the health, safety or welfare of the Unit Owners, provided said special assessment has first been approved by a majority of the members present and voting at a members meeting at which a quorum is present. Written notice of said meeting shall have been sent to all Unit Owners at least thirty days in advаnce . . . .
Because the required thirty-day notice was provided, and the overwhelming majority of the unit owners were present and voted in favor of the special assessments, the approval and ratification of the special assessments were validly adopted and relate back to the date of the first and all subsequent assessments. Therefore, this appeal is now moot.
Plaintiff asserts that if we do not decide the merits of the appeal, future unit owners may be subject to improper assessments, and, therefore, she asks
Dismissed.
CLERK OF THE APPELLATE DIVISION