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Condominium Associations continue to be “Residential” Despite Commercial Nature of Some Units.

December 1, 2017

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In New Jersey, residential property owners do not owe a duty to maintain public sidewalks abutting their properties, but commercial property owners do.  New Jersey courts have consistently followed this dichotomy since 1981, but much litigation has ensued as to what is “residential” as opposed to “commercial.”  Courts employ the “predominate use” test to determine whether a property is residential or commercial.
In <em>W<a href="https://www.law.com/njlawjournal/almID/1511409707NJA025716T/">aldier</a></em> v. <em>Piper 1 Townhouse Condominium Association</em>, the Appellate Division upheld a trial court’s dismissal of a Condominium Association on summary judgment.  In that case, plaintiff alleged that she was thrown from her bicycle and injured due to a defect in a sidewalk adjacent to the condominium complex.
The condominium complex consisted of thirteen units, and the Association was a not-for-profit entity.  The owners made up the Association.  The condominium’s Master Deed contained a restrictive covenant mandating that each unit be used as a private residence only.  However, unit owners were permitted to rent units.  Discovery revealed that two to four units were held for rent by their owners.  Only five of the units were owner-occupied all year.  Nonetheless, the trial court determined that the condominium complex was predominately residential and the appellate court agreed.
Thanks to Michael Noblett for his contribution to this post.
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