Recent Updates

  • February 1, 2012 8:08 AM
    Trespass Actions Under the Tort Claims ActAn action for trespass arises upon the unauthorized entry onto another's property, real or personal. A trespass on property, whether real or personal, is actionable, irrespective of any appreciable injury. Under a trespass theory, a plaintiff may "assert a claim for whatever damages the facts may lawfully warrant." Thus, a plaintiff may claim damages from the loss in value to the land trespassed upon, as well as consequential damages such as property taxes and loss of profits.
  • January 27, 2012 8:30 AM
    When Can Individual Association Board Members Be Held Personally Liable For Actions of the Collective Board? Part 4A Board that acts in reliance upon advice of its experts and legal professionals cannot be held liable for negligence or breach of fiduciary duty if that advice turns out to be wrong.
  • January 25, 2012 8:02 AM
    When Can An Action for Nuisance Be Brought Against a Public Entity?An action for nuisance may be brought against a public entity unhampered by the TCA. Private nuisance is but one possible theory for recovery of damages caused by the invasion of one's interest in the private use and enjoyment of...
  • January 20, 2012 8:25 AM
    When Can Individual Association Board Members Be Held Personally Liable For Actions of the Collective Board? Part 4When liability for any of these breaches is imposed on an individual director or trustee, the issue of indemnification arises. In New Jersey, because condominium associations are generally organized as not-for-profit corporations under the Nonprofit Corporation Act, indemnification may be available to an officer of an entity organized under this Act provided that the officer (1) “acted in good faith and in a manner which the [officer] reasonably believed to be in or not opposed to the best interests of the corporation,” and (2) “with respect to an criminal proceeding, the [officer] had no reasonable cause to believe the conduct was unlawful.”
  • January 18, 2012 8:09 AM
    Design and Plan ImmunityThe immunity principle espoused by the Barney’s Furniture court (concluding that the city could not be held liable in damages for floods resulting from a gradually increasing functional incapacity of the sewer system) is codified as the planning and design immunity provision of the TCA. See N.J.S.A. 59:4-6.
  • January 13, 2012 8:58 AM
    When Can Individual Association Board Members Be Held Personally Liable For Actions of the Collective Board? Part 3New Jersey courts that have considered the application of the business judgment rule have concluded that the scope of judicial review of condominium association decisions is limited to a two-pronged test: (1) whether an association's action was authorized by statute or its own bylaws and, if so, (2) whether the action was fraudulent, self-dealing or unconscionable. Thanasoulis, supra, 110 N.J. at 655; see also Chin v. Coventry Square Condo, 270 N.J. Super. 323, 328-29, (App. Div. 1994); Siller, supra, 93 N.J. at 382; Papalexiou v. Tower West Condo, 167 N.J. Super. 516, 527 (Ch. Div. 1979).
  • January 11, 2012 8:01 AM
    Discretionary Immunity and Negligent OperationSubsection (a) concerns the "exercise of judgment or discretion" in making basic policy -- the type made at the planning, rather than the operational level of decision-making. Moreover, immunity is contingent upon proof that discretion was actually exercised at that level by an official who, faced with alternative approaches, weighed the competing policy considerations and made a conscious choice.
  • January 6, 2012 8:55 AM
    When Can Individual Association Board Members Be Held Personally Liable For Actions of the Collective Board? Part 2Since condominium associations are generally organized as non-profit corporations under N.J.S.A. 15A:1-1 et seq., the New Jersey Nonprofit Corporation Act is quite instructive on a Board member’s standard of care.
  • January 4, 2012 8:05 AM
    Inside the Tort Claims ActThe New Jersey Tort Claims Act (the “TCA” or the “Act”) provides that "a public entity is not liable for an injury" caused by an act or omission "[e]xcept as otherwise provided by this act." N.J.S.A. 59:2-1a. Under the TCA, immunity is the rule and liability is the exception. The TCA defines public entities to include counties and municipalities, and therefore townships also fall within the scope of the TCA. N.J.S.A. 59:1-3.
  • December 30, 2011 8:07 AM
    When Can Individual Association Board Members Be Held Personally Liable For Actions of the Collective Board? Part 1Like directors of corporations, members of association Boards enjoy various protections for the consequences of their business decisions. Essentially, in order for a Board member to be personally liable for an act of the Board, the Plaintiff would have to prove either (1) that the Board acted without authorization from the association’s governing documents, Condominium Act or other statute; or (2) that an authorized act of the Board was fraudulent, unconscionable or resulted in self-dealing. Generally, as long as a Board member acts in good-faith and makes informed decisions, he will be protected from personal liability by operation of the business judgment rule.

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