by Jim Ritter, CMCA, PCAM, LSM - Community Manager, Greenbriar Oceanaire Community Association, Inc.
Should associations be responsible for injuries or the pain
and suffering that sometimes occurs on or within the common elements of the
community? After all the association board, elected by the homeowners, sets the
budget and guidelines of the maintenance program for the areas and injuries
occur even with well-maintained facilities.
Injuries especially those caused by trips and falls, are
common in homeowner associations. Association documents require the Board to
have insurance to protect the association and provide financial stability in
the event of a lawsuit.
Homeowner Associations in New Jersey have long enjoyed broad immunity
from tort liability due to the specific protections they are afforded by the
state's Torts Immunity Act. The immunity
provisions of the Torts Immunity Act have certainly proven valuable in
protecting homeowner associations against lawsuits.
The state feels that the homeowners should decide the
question of Tort Immunity on an individual association basis The associations that wish to avail
themselves of Tort Immunity must take a vote amend their bylaws to include the
provision for Tort Immunity. Builders/Sponsors are not allowed to
participate in the vote and the vote must have two thirds of the members vote
yes to be implemented.
Current indications show associations with Tort Immunity in
their by-laws enjoy lower insurance premiums due to fewer claims. Some associations find it very difficult and
expensive to obtain liability insurance because of its claims history. Some carriers will not write insurance for
associations that do not have Tort Immunity in place.
Will having Tort Immunity make all claims go away? The answer is no, however if approved it would
require proof in a lawsuit that the association was willful, wanton, or grossly
negligent in creating the situation in which the injury occurred. This is much more difficult to collect on a
claim than just filing a report that says, “I fell in the parking lot last week
and I was injured and by the way my significant other wants to be paid for loss
of services.”
The State of New
Jersey does not track which or how many communities
have the Tort Immunity provision in place.
Currently Tort Immunity does not extend to anyone other than members of
the association. There has been
legislation introduced to extend Tort Immunity to guest of members.
New Jersey State Statue concerning Tort Immunity
A:62A-12.
Definitions
As used in this
act:
a. "Association" means the entity
responsible for the administration of a common interest community in which 75%
or more units have been conveyed to unit owners other than the developer
pursuant to subsection a. of section 2 of P.L. 1979, c. 157 (C. 46:8B-12.1),
which association may be incorporated or unincorporated.
b. "Bylaws" mean the governing
regulations adopted by a common interest community for the administration and
management of the property.
c. "Common interest community" means
real estate with respect to which a person, by virtue of his ownership of a
unit, is obligated to pay for real estate taxes, insurance premiums,
maintenance or improvement of other real estate described in the
declaration. Ownership of a unit does
not include holding a leasehold interest of less than 20 years in a unit,
including renewal options. Common
interest communities shall include, but not be limited to, condominiums and
cooperatives.
d. "Declaration" means any
instrument, however denominated, which creates a common interest community,
including any amendment to that instrument.
e. "Bodily injury" means death or
bodily injury to a person.
f. "Qualified common interest
community" means a common interest community which is (1) residential and
(2) contains at least four units.
g. "Unit" means a physical part of a
common interest community designated for separate ownership or occupancy.
h. "Unit owner" means the person
owning a unit or that person's spouse.
L. 1989, c. 9, s.
1.
2A:62A-13. Limited
immunity for association
a. Where the bylaws of a qualified common
interest community specifically so provide, the association shall not be liable
in any civil action brought by or on behalf of a unit owner to respond in
damages as a result of bodily injury to the unit owner occurring on the premises
of the qualified common interest community.
b. Nothing in this act shall be deemed to grant
immunity to any association causing bodily injury to the unit owner on the
premises of the qualified common interest community by its willful, wanton or
grossly negligent act of commission or omission.
L. 1989, c. 9, s.
2.
2A:62A-14. Amendment
of bylaws
a. No bylaws shall be amended in accordance
with section 2 of this act unless the amendment is approved by the owners of at
least two-thirds of the units held by unit owners other than the developer in
the qualified common interest community.
b. Bylaws adopted in accordance with section 2 of this act
shall apply to actions for injuries sustained on or after the operative date of
the bylaws.
