A COUNTRY PLACE CONDOMINIUM ASSOCIATION VS. MAROECHEABDELHAK(DC-12065-14, OCEAN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0145-15T4

A COUNTRY PLACE CONDOMINIUM
ASSOCIATION,

Plaintiff-Respondent,

v.

MAROECHE ABDELHAK,

Defendant-Appellant.

_____________________________________

Argued October 6, 2016 – Decided June 6, 2017

Before Judges Leone and Vernoia.

On appeal from Superior Court of New Jersey,
Law Division, Special Civil Part, Ocean
County, Docket No. DC-12065-14.

Daniel Louis Grossman argued the cause for
appellant.

Philip D. Tobolsky argued the cause for
respondent.

PER CURIAM

Defendant Maroeche Abdelhak appeals a July 16, 2015 order

awarding maintenance fees, counsel fees, and costs to plaintiff,
A Country Place Condominium Association. We affirm in part, vacate

in part, and remand.

I.

Unless otherwise indicated, the following facts were found

by the trial court. Defendant owned a unit in plaintiff's 376-

unit condominium complex in Lakewood. He was pleased with the

services until management of the property was taken over by Ocean

Management Group.

Defendant took issue with the growth of roots in the yards

in front and in back of his unit. During the dispute, defendant

stopped paying his monthly maintenance fees to plaintiff. He also

accrued late fees, counsel fees, and other fees.

Defendant and plaintiff entered into an agreement that

plaintiff would perform work on the front and back yards, and

defendant would pay around $3000. Under the agreement, defendant

would pay half in advance and half when the work was finished.

Defendant paid $1505 in advance. The work on the back yard was

done to defendant's satisfaction. However, the work on the front

yard was never done.

Defendant testified that, as a result, he never paid the

other half of the $3000. Plaintiff's property manager testified

that, after being credited for paying the $1505 in June 2013,

2 A-0145-15T4
defendant never paid his monthly maintenance fee, resulting in a

balance of $6615 by the June 2015 trial.

Defendant's complaint about the roots in the yards was only

one of his complaints about plaintiff's care of the common areas.

He testified plaintiff failed to properly cut the grass or power

wash mildew from the exterior of the roof. He also testified

that, as a result of the dispute, plaintiff did not plow, shovel,

salt, or sand snow and ice on his driveway and walkway as promptly

as it did for his neighbors, leaving him "trapped" in his house

for days. Plaintiff's former officer manager testified that "it

was my experience that there were a few homeowners that were due

services and being they were behind on their maintenance payments,

the services were not provided," and that it was "a possibility"

that was why defendant's unit was not fully serviced.

Plaintiff filed a complaint in the Special Civil Part seeking

maintenance fees, late fees, and counsel fees defendant was

required to pay under the master deed and bylaws. Defendant filed

a counterclaim alleging plaintiff failed to provide the services

and unit maintenance required by the master deed and bylaws.1

1
Nonetheless, the parties have failed to provide the master deed,
or any portion of the bylaws other than the counsel fee provision.

3 A-0145-15T4
 The trial court found defendant should have paid the

management fees in full. The court awarded plaintiff $6615.2 The

court declined to award the $950 in late fees requested by

plaintiff but ultimately granted plaintiff $2435.12 in counsel

fees. The court dismissed defendant's counterclaim. He appeals.

II.

We must hew to our "deferential standard" of review.

D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013). "'Final

determinations made by the trial court sitting in a non-jury case

are subject to a limited and well-established scope of review[.]'"

Ibid. (citation omitted). "'[W]e do not disturb the factual

findings and legal conclusions of the trial judge unless we are

convinced that they are so manifestly unsupported by or

inconsistent with the competent, relevant and reasonably credible

evidence as to offend the interests of justice . . . .'" Ibid.

(citation omitted). "To the extent that the trial court's decision

constitutes a legal determination, we review it de novo." Ibid.

III.

The trial court could properly find defendant owed $6615 in

unpaid maintenance fees he withheld during the dispute. During

his testimony, defendant admitted he was unaware of anything in

2
The transcript shows the trial court initially ordered defendant
to pay $6650, but that appears to be a transcription error.

4 A-0145-15T4
the master deed or bylaws which allowed him to withhold his monthly

payments if he was unhappy with the services he received. Absent

such a provision, we are unaware of any authority allowing

defendant to withhold his maintenance fees because he was

dissatisfied with the services.

No such authority is provided in the Condominium Act, N.J.S.A.

46:8B-1 to -38. A condominium association "shall be responsible

for the performance of [its] duties," including "[t]he

maintenance, repair, replacement, cleaning and sanitation of the

common elements." N.J.S.A. 46:8B-14(a). "[T]he costs of [doing

those duties] shall be common expenses[.]" N.J.S.A. 46:8B-14.

"The association may levy and collect assessments duly made by the

association for a share of common expenses or otherwise, . . .

together with interest thereon, late fees and reasonable

attorneys' fees, if authorized by the master deed or bylaws."

N.J.S.A. 46:8B-15(e).

"A unit owner shall, by acceptance of title, be conclusively

presumed to have agreed to pay his proportionate share of common

expenses accruing while he is the owner of a unit." N.J.S.A.

46:8B-17. "No unit owner may exempt himself from liability for

his share of common expenses by waiver of the enjoyment of the

right to use any of the common elements or by abandonment of his

unit or otherwise." Ibid.; accord Brandon Farms Prop. Owners

5 A-0145-15T4
Ass'n v. Brandon Farms Condo. Ass'n, 180 N.J. 361, 368 (2004);

Ocean Club Condo. Ass'n v. Gardner, 318 N.J. Super. 237, 240 (App.

Div. 1998).

"The obligation to pay condominium fees has been described

as 'unconditional.'" The Glen, Section I Condo. Ass'n v. June,

344 N.J. Super. 371, 376 (App. Div. 2001). In The Glen, unit

owner June was delinquent in paying maintenance assessments, and

the association suspended his privileges to use all common

elements, deliberately piled snow in his driveway in violation of

its duty of good faith and fair dealing, and exceeded its powers

by installing a "lolly" column to prevent use of his own garage.

Id. at 374, 378-80. Nonetheless, we rejected the trial court's

ruling that the association's acts "absolved June of his obligation

to pay the monthly assessments. The fact that June continued to

own a condominium unit results in membership in the Association,

and an attendant obligation to pay his share of the expenses."

Id. at 377-78.

If in The Glen the association's improper retaliatory acts

were inadequate to absolve the unit owner of his obligation to pay

monthly assessments, plaintiff's alleged failure to maintain some

common elements, or its allegedly retaliatory slowness in

addressing snow and ice, did not absolve defendant from his

obligation to pay his monthly assessments. We decline to create

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an exception to the unconditional statutory imperative in N.J.S.A.

46:8B-17. See High Point at Lakewood Condo. Ass'n v. Township of

Lakewood, 442 N.J. Super. 123, 142-43 (App. Div. 2015). Thus, we

reject defendant's argument that plaintiff's alleged "breach of a

material term of an agreement" by not performing maintenance

"relieved [him] of [his] obligations under the agreement[s]"

between the parties. Cf. Nolan v. Lee Ho, 120 N.J. 465, 472

(1990).3

In The Glen, supra, we also established the proper remedy

when a unit owner claims an association improperly denied services.

We remanded "for retrial limited to the issue of damages that June

suffered resulting from the Association's breach of its duty of

good faith and fair dealing by denying access to June's driveway

and garage." 344 N.J. Super. at 380. "Those damages are measured

by the reasonable value of the loss of use of June's driveway and

garage for the period he was deprived thereof. The amount found

3
We note the following is apparently a basic master deed
provision: "No Unit Owner may waive or otherwise avoid liability
for Common Expense Assessments . . . by reason of the Association's
failure to provide services to this Unit." Smith, Estis, & Li,
New Jersey Condominium & Community Association Law § 6:7.02, at
85 (2017).

7 A-0145-15T4
shall be set off against June's obligation for the common areas

assessments for the period in question[.]" Ibid.4

Here, defendant would be entitled to a setoff against his

assessment obligations for the period in question if he had proved

he was damaged because plaintiff breached the Condominium Act, the

master deed, the bylaws, or its duty of good faith and fair dealing

by improperly failing to provide services or by improperly

retaliating against defendant. Indeed, defendant brought a

counterclaim claiming such damages.

Generally, in claims for breach of contract,

[o]ur law imposes on a plaintiff the burden
to prove four elements: first, that "[t]he
parties entered into a contract containing
certain terms"; second, that "plaintiff[s] did
what the contract required [them] to do";
third, that "defendant[s] did not do what the
contract required [them] to do[,]" defined as
a "breach of the contract"; and fourth, that
"defendant[s'] breach, or failure to do what
the contract required, caused a loss to the
plaintiff[s]."

[Globe Motor Co. v. Igdalev, 225 N.J. 469, 482
(2016) (alterations in original) (quoting
Model Jury Charge (Civil) § 4.10A "The
Contract Claim—Generally" (May 1998)).]

4
This remedy resembles a remedy afforded tenants. "[I]n an action
by a landlord for unpaid rent a tenant may plead, by way of defense
and set off, a breach by the landlord of his continuing obligation
to maintain an adequate standard of habitability." Berzito v.
Gambino, 63 N.J. 460, 469 (1973). "This does not mean that the
tenant is relieved from the payment of rent so long as the landlord
fails to repair." Marini v. Ireland, 56 N.J. 130, 146-47 (1970).

8 A-0145-15T4
We now examine whether defendant as counterclaimant proved those

four elements.

Here, the parties entered into agreements, including the

agreement to perform service regarding the roots and payment of

$3000. Under that agreement, defendant "'did what the contract

required [him] to do'" when he made the $1505 initial payment.

Ibid. (citation omitted).5 However, it is unclear whether

defendant established the third and fourth elements.

Defendant complains the trial court's factual findings in

this area were "oblique" or non-existent and violated Rule 1:7-

4(a). A trial court must "find the facts and state its conclusions

of law thereon in all actions tried without a jury." R. 1:7-4(a).

"[T]he trial court is required to make findings of fact and to

state specific reasons in support of its conclusion." Gnall v.

Gnall, 222 N.J. 414, 428 (2015). "Failure to make explicit

findings and clear statements of reasoning '"constitutes a

5
Otherwise, it is dubious whether defendant did what he was
required to do, as he failed to pay his monthly maintenance
assessment. Because we decide the appeal on other grounds, we
need not decide whether defendant's failure to pay assessments
relieves plaintiff of its obligation to maintain the common
elements associated with his unit, or whether plaintiff's duty to
perform maintenance of the common elements under N.J.S.A. 46:8B-
14(a) is as unconditional as defendant's duty to pay maintenance
assessments under N.J.S.A. 46:8B-17. Cf. The Glen, supra, 344
N.J. Super. at 377 (finding that "[t]he master deed . . .
explicitly empowers the Association to suspend a member's
enjoyment of the common elements until such fees are paid").

9 A-0145-15T4
disservice to the litigants, the attorneys, and the appellate

court."'" Ibid. (citation omitted).

The trial court found "there was an agreement and some work

that was supposed to be done has not been done." The court also

found:

I don't know if it's been proven by a
preponderance of the evidence, but there
certainly has been implication that some other
work that should have been done, like the
appropriate removal of snow from the grounds,
which is part of the responsibility of the
association, there's some overhanging trees
that have left some markings and residue on
the roof of the particular condominium and
those issues have not been addressed by the
homeowners association.

Finally, the court found: "There was some testimony that I also

find credible, that there is a possibility, but not a definite

possibility that when people don't pay their homeowners

association dues, they don't get the top service."

In this regard, the trial court failed to "'state clearly its

factual findings and correlate them with the relevant legal

conclusions.'" Ibid. (citation omitted). The court's first

finding suggests defendant proved plaintiff breached the agreement

to provide service regarding the roots in the front yard. The

court was unclear regarding whether it found by a preponderance

that plaintiff failed to perform proper service regarding snow

10 A-0145-15T4
removal and roof maintenance, or that plaintiff retaliated against

defendant by providing inferior service.

Defendant argues the defense testimony about these alleged

failings was undisputed and must have been found as fact because

the trial court stated: "The testimony that was given by all of

the witnesses, the Court does deem to and finds it to be credible."

However, we do not read the court's statement to mean it found as

fact every single statement every witness uttered. The contrary

is indicated by the court's explicit factual findings on specific

topics and by its statements about "implications" and

"possibilit[ies]."

The trial court's inadequate findings are harmless if there

was no evidence of damages. "Defendant had the burden of proof

to establish all elements of its cause of action, including

damages." Cumberland Cty. Improvement Auth. v. GSP Recycling Co.,

358 N.J. Super. 484, 503 (App. Div.), cert. denied, 177 N.J. 222

(2003). Defendant failed to offer any proof of damages for most

of his claims raising failure to maintain and retaliation. He

asked plaintiff's maintenance supervisor about its lawn mowing and

snow plowing costs but produced no information the trial court

could use to calculate damages. Because "the trial judge was left

to speculate on the extent of defendant's damages" regarding those

claims, they were properly dismissed. Ibid.

11 A-0145-15T4
 Defendant did prove that plaintiff and he agreed he would pay

approximately $3000 if plaintiff performed service regarding the

roots in the front and back yards, that defendant paid $1505 up

front, and that plaintiff performed the service on the back yard

but not on the front yard. The trial court stated maintenance

regarding the front and back yards "would cost around $3,000," but

defendant and plaintiff's former office manager testified the

$3000 simply represented the back maintenance fees defendant owed

at that time. The court posed the question "how much is that

agreement, in terms of an economic level, worth?" However, the

court failed to answer that question. Because the court did not

determine the value of the service plaintiff failed to perform on

the front yard, a remand for findings is necessary.

If the $1500 was an estimate of the cost of that service, it

constituted evidence of damages that the trial court should have

considered in determining whether to offset some or all of that

amount against the $6615 in maintenance assessments owed by

defendant. Even if the $1500 was just half of defendant's unpaid

maintenance assessments, the agreement made defendant's payment

of the $1500 contingent on the performance of the maintenance and

thus entitled defendant to setoff the cost of such maintenance if

not performed.

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 Accordingly, we affirm the trial court's award of $6615 in

unpaid common expenses and $2435.12 in counsel fees and costs. We

vacate the dismissal of defendant's counterclaim and remand to the

trial court to make findings of fact regarding whether defendant

should be credited with a setoff of some or all of the

approximately $1500 due to plaintiff's failure to perform the

requisite maintenance on the roots in the front yard. The court

may permit submission of further evidence on that issue in its

discretion. We do not retain jurisdiction.

Affirmed in part, vacated in part, and remanded.

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