
-
July 15, 2010
Residential Condominium Does Not Have Duty to Maintain Sidewalk
A residential condominium association with common property that abuts a public sidewalk has no common law duty to maintain that sidewalk, the Appellate Division of New Jersey’s Superior Court has ruled. This holding means that residential condominium associations are not equated with commercial property owners and therefore do not have the enhanced maintenance obligations imposed upon commercial entities.
The case, Luchejko v. City of Hoboken, involved a lawsuit brought by Richard Luchejko, who slipped and fell on ice on a public sidewalk in front of the Skyline Condominium Association in Hoboken. Luchejko sued the association, its managing agent and its snow-clearing contractor, as well as the City of Hoboken. Prior to trial, the plaintiff settled with the contractor but pursued the other defendants, including the association.
Luchejko argued that the condominium association was a commercial entity and therefore had a duty under New Jersey law to maintain the public sidewalk adjacent to the condominium property. Prior to 1981, the general rule had been that an owner of property abutting a public sidewalk was immune from liability for claims arising out of the condition of the sidewalk.
However, the New Jersey Supreme Court modified that rule in 1981 with respect to commercial owners. In Stewart v. 104 Wallace St., Inc., the Court held that commercial establishments have a legal duty to maintain the paved sidewalks in front of their buildings. The Court determined that while the walks may be for the primary benefit of the general public, they are so beneficially related to the operation of the abutting businesses that imposing the duty to maintain them upon commercial owners was compelling.
Subsequent decisions have further justified this obligation by pointing out that commercial owners can spread the risk of loss through higher charges for their goods and services.
The Stewart holding was later extended to require that commercial owners reasonably remove snow and ice from abutting sidewalks. Luchejko characterized the condominium association as a commercial entity and therefore subject to this duty of care. The appellate court, though, rejected this assertion after examining the nature of the association and reviewing prior cases defining “commercial” and “residential” properties. The court focused on the ownership of the property, whether the property is predominantly owner-occupied, and whether the property is capable of generating income.
Skyline Condominium, the court observed, has no retail space on the premises and is operated as a residential building for the benefit of its residents. The association is a nonprofit corporation, whose members are solely the complex’ unit owners. The members pay assessments, but they are only for the maintenance of the property, so no profit is realized.
Although the association’s expenses are shared by the owners, the association is not able to spread the risk of loss as intended by the courts in dealing with commercial entities, by charging the public higher prices for goods and services. Thus, the court found that the policy considerations driving the imposition of liability upon commercial property owners did not exist.
Moreover, the court concluded that although Hoboken’s ordinance establishes a duty for property owners to clear snow and ice from adjacent sidewalks, it did not create a standard for conduct in this case. The court noted that the ordinance does not indicate it is intended to protect pedestrians like Luchejko. Therefore, the existence of the ordinance did not support plaintiff’s claim.
Thus, an exclusively residential non-profit condominium that is predominantly owner-occupied will not be equated with commercial properties and will not be deemed to have a common law duty to maintain abutting public sidewalks. However, each association should check its municipal ordinances and consult with counsel to determine if a local ordinance may create such a duty.
Hill Wallack LLP's Community Associations Group
The Community Associations Group of Hill Wallack LLP is recognized for providing insight and innovation in the representation of community associations throughout New Jersey and Eastern Pennsylvania. We represent condominium and homeowner associations, cooperatives and real estate developers, and work closely with association governing boards and committees, management companies and other professionals.
Our experience extends to management and collections matters; transitions; administrative, legislative & regulatory issues; insurance coverage and litigation. We work with colleagues knowledgeable in employment and labor law, environmental law, creditor's rights/bankruptcy and other areas to provide comprehensive support. We do more than advise on the law--we create solutions.
For more information, contact one of the attorneys who work in this area. In New Jersey contact Ronald L. Perl, Esq., Michael S. Karpoff, Esq., Terry A. Kessler, Esq., Suzanne M. Marasco, Esq. or Brian J. McIntyre, Esq.. In Pennsylvania contact Jeffrey G. DiAmico, Esq.,
This article provides information of general interest and is not intended, and should not be used, as a substitute for consultation with legal counsel. Any questions regarding the specific issues raised in this article should be directed to the authors or to your contacts at Hill Wallack LLP.