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Kieffer v. David Demeo, Individually, Prudential Fox & Roach Realtors, Constance Sandmann, Individually, Taunton Trace Homeowners Ass'n, Inc.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Mar 23, 2016
DOCKET NO. A-4621-13T3 (App. Div. Mar. 23, 2016)

Opinion

DOCKET NO. A-4621-13T3

03-23-2016

RITA KIEFFER, Plaintiff-Appellant, v. DAVID DEMEO, individually, PRUDENTIAL FOX & ROACH REALTORS, CONSTANCE SANDMANN, individually, TAUNTON TRACE HOMEOWNERS ASSOCIATION, INC., HW PROPERTY MANAGEMENT SERVICES, DELORES DEAN, individually, EUGENE BARRA, individually, and TRACY LANOZA, individually, Defendants-Respondents, and TARGET PROPERTY INSPECTIONS, SCOTT FREEMAN, individually, Defendants.

Rita Kieffer, appellant, argued the cause pro se. Francis T. McDevitt argued the cause for respondent David DeMeo (Naulty, Scaricamazza & McDevitt, attorneys; Mr. McDevitt, on the brief). Richard M. Darnall argued the cause for respondents Prudential Fox & Roach Realtors and Constance Sandmann (Reger Rizzo & Darnall, attorneys; Mr. Darnall and Thomas Krick, on the brief). Brian J. McIntyre argued the cause for respondents Taunton Trace Homeowners Association, Inc., HW Property Management Services, Delores Dean, Eugene Barra, and Tracy Lanoza (Hueston McNulty, P.C., attorneys; Samuel J. McNulty, of counsel and on the brief; Mr. McIntyre and Jennifer L. Moran, on the brief).


NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Ostrer, and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2722-11. Rita Kieffer, appellant, argued the cause pro se. Francis T. McDevitt argued the cause for respondent David DeMeo (Naulty, Scaricamazza & McDevitt, attorneys; Mr. McDevitt, on the brief). Richard M. Darnall argued the cause for respondents Prudential Fox & Roach Realtors and Constance Sandmann (Reger Rizzo & Darnall, attorneys; Mr. Darnall and Thomas Krick, on the brief). Brian J. McIntyre argued the cause for respondents Taunton Trace Homeowners Association, Inc., HW Property Management Services, Delores Dean, Eugene Barra, and Tracy Lanoza (Hueston McNulty, P.C., attorneys; Samuel J. McNulty, of counsel and on the brief; Mr. McIntyre and Jennifer L. Moran, on the brief). PER CURIAM

Plaintiff Rita Kieffer, who is self-represented, appeals from the December 19, 2013 and January 10, 2014 summary judgment dismissal of her claims against defendants David DeMeo, Prudential Fox & Roach Realtors, Constance Sandmann, and Taunton Trace Homeowners Association, Inc. The Law Division judge also barred Kieffer's engineering expert Frank Vinciguerra. The court denied Kieffer's March 14, 2014 motion for reconsideration of the summary judgment orders. In her complaint, Kieffer sought damages arising from her purchase of a two-story, three-bedroom townhouse in the Taunton Trace condominium development.

Kieffer settled her claims with the home inspection defendants on April 21, 2014: Target Property Inspections and Scott Freeman. Kieffer does not appeal the summary judgment decision as to defendant HW Property Management Services or defendants Delores Dean, Eugene Barra, and Tracy Lenoza, individual members of the Taunton Trace Homeowners Association.

Kieffer does not appeal the court's bar of a second engineering expert Fawzy Salib.

Because defendants did not meet the summary judgment standard, we reverse. We also conclude that Vinciguerra's opinion was not excludable and therefore reverse on that point as well. However, we affirm the judge's dismissal of statutory fraud and breach of duty to warn claims against the Association.

I.

DeMeo owned the townhouse in question, number 8, since 1979. The rear yard behind the unit extends into a common area, approximately thirty-seven feet wide, which separates the east and west side of the development. A twenty-foot-wide sanitary sewer easement is centered in this common area. Three man-made lakes function as water retention basins.

DeMeo, a licensed real estate broker since 1981, manages and leases his own properties, including number 8 and several other units in the development. DeMeo lived in number 8 in 1981.

On July 7, 2005, DeMeo listed number 8 for sale with Sandmann of Prudential Fox & Roach. She and DeMeo had been acquainted for approximately sixty years. Sandmann acted as the leasing agent for the unit for about eighteen years before the sale to Kieffer. A handwritten notation along the left side of Sandmann's listing agreement states: "Twenty-five percent of in-house commission will be paid to DeMeo Realty."

Kieffer was shown the property in July 2005 by Steven Dooling, who had never sold a home in that development. Kieffer made an offer, but after a pipe burst in the unit, she waited to sign the agreement of sale until repairs were made to the sheetrock, carpet, sink, floor, and cabinet in a downstairs bathroom. The agreement was signed August 18, 2005.

On July 7, 2005, Kieffer was presented with DeMeo's completed disclosure form. Its prefatory paragraph read:

The purpose of this Disclosure Statement is to disclose, to the best of Seller's knowledge, the condition of the Property as of the date set forth below. The Seller is aware that he or she is under an obligation to disclose any known material defects in the Property even if not addressed in this printed form. Seller alone is the source of all information contained in this form. All prospective buyers of the Property are cautioned to carefully inspect the Property and to carefully inspect the surrounding area for any off-site conditions that may adversely affect the Property. Moreover, this Disclosure Statement is not intended to be a substitute for prospective buyer's hiring of qualified experts to inspect the Property.

In the section on "ATTICS, BASEMENTS AND CRAWL SPACES," DeMeo marked "No" to each of the following questions:

9. Are you aware of any water leakage, accumulation or dampness within the basement or crawl spaces or any other
areas within any of the structures on the property?

9a. Are you aware of the presence of any mold or similar natural substance within the basement or crawl spaces or any other areas within any of the structures on the property?

10. Are you aware of any repairs or other attempts to control any water or dampness problem in the basement or crawl space? If "yes," describe the location, nature and date of the repairs: __________

Adjoining sections on the disclosure form entitled "STRUCTURAL ITEMS" and "ADDITIONS/REMODELS," with DeMeo's responses, read as follows:

STRUCTURAL ITEMS
Yes No Unknown
X 22. Are you aware of any movement, shifting, or other problems with walls, floors, or foundations, including any restrictions on how any space, other than the attic or roof, may be used as a result of the manner in which it was constructed?

X 23. Are you aware if the property or any of the structures on it have ever been damaged by fire, smoke, wind or flood?

. . . .
X 25. Are you aware of any current or past problems with driveways, walkways, patios, sinkholes or retaining walls on the property?

X 26. Are you aware of any present or past efforts made to repair any problems with the items in this section?

27. Explain any "yes" answers that you give in this section. Please describe the location and nature of the problem.

Entire Kitchen Floor Replaced. Replaced Living Room Floor & Rear Patio Kitchen Floor Joists Sistered

ADDITIONS/REMODELS
Yes No Unknown
X 28. Are you aware of any additions, structural changes or other alterations to the structures on the property made by any present or past owners?

[no checkmarks]29. Were the proper building permits and approvals obtained? Explain any "yes" answers you give in this section.

The bold and underlined sections represent DeMeo's handwritten responses to the questions.

See Above

The section captioned, "LAND (SOILS, DRAINAGE AND BOUNDARIES)," with DeMeo's responses, read in relevant part:

Yes No Unknown
X 70. Are you aware of any drainage or flood problems affecting the property?

X 71. Are there any areas on the property which are designated as protected wetlands?

. . . .

X 74. Are there any water retention basins on the property or the adjacent properties?

. . . .

76. Explain any "yes" answers to the preceding questions in this section:
Rear Common Grounds Remain Wet After Rains [illegible]Planned Development

In the "ENVIRONMENTAL HAZARDS" section, DeMeo checked "No" to having "received any written notification from any public agency or private concern informing [him] that the property [was] adversely affected, or may be adversely affected, by a condition that exists on a property in the vicinity of this property?"

DeMeo also checked "No" when asked if he was "aware of any condition that exists on any property in the vicinity which adversely affects, or has been identified as possibly adversely affecting, the quality or safety of the air, soil, water, and/or physical structures present on this property?"

In the section pertaining to "DEED RESTRICTIONS," DeMeo checked "No" in response to the question: "Are you aware if the property is subject to any . . . limitations on how it may be used due to its being situated within . . . a protected area like the New Jersey Pinelands, or its being subject to similar legal authorities, other than typical local zoning ordinances?" He also denied being "aware of any defect, damage, or problem with any common elements or common areas that materially affect[ed] the property?"

In the "MISCELLANEOUS" section, DeMeo checked "No" to the inquiry: "Are you aware of any material defects to the property, dwelling or fixtures which are not disclosed elsewhere on this form? (A defect is 'material,' if a reasonable person would attach importance to its existence or non-existence in deciding whether or how to proceed in the transaction.)"

Under "ACKNOWLEDGMENT OF SELLER," DeMeo wrote that a pipe to the upstairs toilet broke and flooded the downstairs ceiling, hall carpet, and kitchen. He added that the carpet was replaced and some tiles were missing near the washer and dryer.

In the acknowledgment section, Sandmann "confirm[ed] that [she] visually inspected the property with reasonable diligence to ascertain the accuracy of the information disclosed by [DeMeo], prior to providing a copy of the disclosure statement to [Kieffer]." Sandmann also acknowledged receiving the disclosure "for the purpose of providing it to [Kieffer]."

Freeman, Target Property Inspections' employee, stated in his deposition that the September 1, 2005 inspection was "not an engineering analysis," but was "strictly visual" and did not include condominium common elements.

Freeman was unlicensed at the time, but had completed approximately 460 inspections by September 2005.

On September 16, 2005, Kieffer purchased the home for $218,600. Approximately a month later, Kieffer noticed pronounced flooding in the common area to the rear of her yard. Among the exhibits she presented to the court in opposition to the motion for summary judgment, for example, was a videotape of ducks floating on the water in her yard. She alleged that the water freezes in the winter and recedes in the summer, and that other than in the summer, up to half of her forty-foot-long back yard is mainly under water. Kieffer has been cited multiple times by the Association for storing her trash cans in the front of her home instead of to the rear, as the condominium rules require. She claimed she could not store them to the rear due to the flooding.

Kieffer deposed a former tenant who testified that when he lived in the unit in 1997 or 1998, on one occasion water rose over the yard, over the patio, and into the family room. He did not report the flooding either to DeMeo or to the condominium association.

Kieffer, shortly after she moved in, also began to observe movement and structural problems in the home which she attributed to the flooding. She had known the home needed remodeling but was unaware of any structural issues, such as sloping floors, cracks above doorways, cracks in walls, and gaps between floors and walls.

In deposition, DeMeo acknowledged knowing the common area flooded, but did not consider it consequential. He also acknowledged that tenants had complained about their inability to keep trash bins behind the home, but was under the impression that the reason was nothing more serious than their feet getting wet when they took their trash out.

DeMeo was a member of the Association's Board of Directors from 1999 to 2004. He was present at a July 11, 2000 meeting. The minutes reflected that the resident of number 22 complained that his living room ceiling had caved in, because the resident believed, "there [was] a structural problem." An unidentified resident "reported a similar problem with the upstairs bedroom sheetrock bowing." The minutes also make reference to a "mosquito issue."

The Board of Trustees and the Board of Directors for the Association were the same body.

DeMeo knew that, in 2001, the resident of number 9 reported "a rodent problem . . . from the swale behind the unit" to the Board. But he thought the property manager addressed it and "[they] never had the problem again."

On June 24, 2003, the resident at number 4 complained that "standing water in the easement between [numbers] 4 to 10 . . . and 29 and 36" created a health hazard, and requested that the Association install a drainage system. DeMeo said the property management company "took care of" the mosquito issue and "emptied out the thing."

DeMeo was not present, although still a Board member, at a May 11, 2004, Association meeting at which Vollmer Associates LLP, an engineering firm, made a proposal to investigate and address water-related problems related to debris accumulation and vegetation growth in the development's ponds and swales. At the meeting, the Vollmer representative discussed the need for compliance with Pinelands Commission and wetlands regulations. The minutes indicate an additional topic, "DRAINAGE PROBLEMS" on Kieffer's street. The minutes also indicate a resident asking for an update on a May 12, 2004 letter from Medford Township "regarding drainage problems[.]" DeMeo was present, however, at a September 14, 2004 Board meeting at which "drainage issues" were discussed, and at a November 9, 2004 meeting at which the owner of number 19 complained about "ponding water."

After DeMeo was no longer a member, on March 8, 2005, approximately six months before Kieffer purchased the townhome, the resident of number 5 complained to the Board about standing water. As a result of the resident's complaint to the Department of Health, Medford's Public Works Department informed Association management "that the area need[ed] immediate attention." The Board did not want to do any remedial work until it received Vollmer's report.

Citing the Vollmer report at his deposition, DeMeo said that the Association was "in the process" of resolving the standing water problem when he sold the property. The Vollmer report was completed on April 29, 2005, approximately two months before DeMeo submitted his disclosure statement. The report's stated purpose was to "identify the extent of drainage problems that exist on the site, . . . propose an engineering solution to the drainage problems," estimate the cost for remediation, identify any regulatory permits necessary to perform the work, and recommend contractors to carry it out.

Dooling could not remember discussing Kieffer's questions about the information on the disclosure statement with her, but his handwritten notes corresponded to her notations. This included a question about the replacement of the kitchen floor.

DeMeo said in deposition that his response on the disclosure form to the effect that the common ground remained wet after rain, was intended to alert the buyer. He never actually spoke to Kieffer or her realtor, but recalled talking to Sandmann:

I told her that the kitchen floor . . . was repaired approximately about . . . during the time at which I lived there and it was repaired by the builder . . . . And when she asked me about the grounds remaining wet after a rain, I told her that in — depending on the amount of rain is the amount of water that there would be and depending on the conditions and the time is the amount of time that it would take to dry up.

. . . .

I told her it was in the condition of whatever the weather was at that particular time.
. . . .

I told [Sandmann] that wet meant that the amount of water was proportionate to whatever the amount of rain was and the time that it would take it to dry was depending on the weather conditions. Sometimes it was longer than others, sometimes it was [an] extremely short period of time. Light rain, light amount of water; heavy rain, heavier amount of water.
DeMeo meant a "couple days" by the "longer period[.]"

When Sandmann asked DeMeo about his disclosures regarding the kitchen and living room floors, he said:

I told her that the kitchen floor was opened up and the joists were sistered by the builder and the floor was replaced . . .

. . . .

. . . [T]he floor had split across the length of the house. . . . It had settled.

. . . .

The rear patio had cracked, the center floor of the house, the center floor of the living room had cracked and had settled, okay, and we found out . . . about the . . . concrete, and that we repaired it.

DeMeo said Sandmann was concerned about the possibility that the deal might fall through if he disclosed that information. Sandmann told him, "if you say that, [Kieffer] probably won't buy the house[:]"

[S]he said, you know, there's a possibility that the deal may fall through. I said I
understand that, but it is what it is. You have to tell her what it is so that if she understands it and if she doesn't want to buy it, don't buy it.
DeMeo did not know whether Sandmann relayed that information to Kieffer.

In deposition, Sandmann claimed the disclosure statement did not require discussion with DeMeo concerning any condition. During the years she had been a leasing agent for the unit, no one had complained about flooding. She had sold two or three units in the development, and had never heard complaints about the common areas.

By December 2005, Kieffer had been informed by a former property manager that the development was sited on wetlands, a claim repeated by a neighbor. The property manager also said that the Association had cleaned several swales, and that more would be cleaned as funds became available.

Kieffer obtained a report paid for by the Association with regard to flooding, met with a representative of the then current management company, HW Property Management Services, as well as the Board, the Pinelands Commission (the property was located in the Pinelands), and contacted the New Jersey Department of Environmental Protection. Kieffer was told the Board was making efforts to clean the drainage system and lower the level of the lake, which should relieve the flooding behind her home.

In some of the intervening years, the Association budgeted funds to maintain the swales, and unsuccessfully attempted to raise additional funds for additional cleaning. The Board eventually asked Kieffer to investigate the issue.

Kieffer eventually made a presentation to the Board of the initial steps necessary to correct the problem, which required approvals from the Pinelands Commission in addition to a determination as to whether the units were sited on wetlands. The Association decided it did not have the substantial funds required to complete even the initial phase of the process, and decided instead to clean additional swales. Kieffer declined the offer to join the Board. In 2011, she filed suit.

After the complaint was filed, the Board retained an engineering, energy, and architectural firm which estimated the cost of mitigation at between $150,000 to more than $300,000. The report included a statement that the flooding should not affect the stability of Kieffer's structure.

After the report was received, the Board called for a vote on a special assessment to fund remediation work totaling $154,644, or an additional $526 annual assessment per unit. The homeowners voted against the proposal.

Kieffer's engineering expert, Vinciguerra, reported that the first floor structural system had "dropped resulting in out of level floors and ceilings." Vinciguerra's investigation of the crawl space showed that the five joists upon which the core structure rested had dropped "shortly after construction[.]" One had cracked, their ends were "crushing," they were "not properly shimmed" and "the shims had crushed[.]" The joists directly under the kitchen floor were "improperly sistered and improperly shimmed[.]" Some joists had "twisted, indicating movement of the wood structure." The major beam that supported "a substantial portion of the second floor" had "rotated approximately 6°, and its cross sectional axis [was] not vertical." The connections between the wood columns that supported that beam "and the beam itself appear[ed] to be improperly acting as hinges."

Vinciguerra was unable to observe the actual connection between the beams and the columns, because it was located behind the drywall. But his report emphasized in bold-faced type: "This unstable hinge condition could have the potential for a severe failure and potentially cause partial collapse of the second floor system[.]"

Vinciguerra said that the condition appeared to have existed from the time of the initial construction or shortly after, when three improper piers were installed as an attempt to remediate the problem. Vinciguerra emphasized that the condition represented "a major structural concern" that required "immediate further invasive investigation." The sagging of the second floor had been caused by an "insufficient second floor support system along with the dropping of the structural core[.]"

Vinciguerra observed the three improper "makeshift piers" in the crawlspace directly under the wood columns that supported the second floor major beam. The piers consisted of two concrete blocks, a wood plank, a wood plate, and a 3x4 wood column. They sat on a slab that had settled and cracked, had no footings or foundations to support their load, and no mechanical fasteners between the concrete blocks and the wood members or between the wood members and the piers. The middle pier was "crushing the joist as it transfer[red] the load through it to the pier" and there were vertical cracks on its supporting concrete block. Finally, "the right side pier . . . ha[d] collapsed," and was "lying on the floor."

It appeared to Vinciguerra that the piers were probably installed when DeMeo attempted to alleviate a problem with the second floor. Vinciguerra was very confident that excavation dirt atop the pier came from the later installation of an air conditioning system, indicating that it had been installed as "an afterthought[.]" He also concluded that the piers were not part of the original construction, because "it would have never been done that way." They were "amateurish" and "not properly positioned to where they would be doing anything of value."

Vinciguerra's conclusion that the joists had been crushed before the sale was based, in part, on numbers that he had run on his calculator and in his head "on the end bearing analysis of joists." Because "the linear bearing distances [were] so short, they [were] excessively over stressed and [it was] evident of the crushing." He had not included his calculations in his report.

Vinciguerra said the configuration of the home meant the load from the "second floor walls, possibly the roof and the first floor" was being transferred to "all to these five joists." All of those loads "combined [were] excessive." "[W]hen the live loads come in, when people start loading the floors with furniture and fixtures, at some point in time, the stresses became too excessive[.]" This would have occurred "within a year" of construction. The crushed joists were "a failure[,]" rather than soil-related settlement.

All of Vinciguerra's observations are depicted in the photographs included in his report depicting "a small sample" of cracks and separations in the walls, floors, and ceilings. The cracks had "been patched with tape and spackle" and would "continue to reoccur[.]"

Vinciguerra said that the standing water in the back yard and common area he observed during his visit contributed to dampness in the crawl space, and he saw soil erosion that resulted in a sink hole and slab failure near the right end pilaster. In Vinciguerra's opinion, a horizontal crack in the rear foundation wall was caused by the replacement of an adjoining concrete slab that had cracked.

Within a reasonable degree of engineering certainty, Vinciguerra opined that all of the observed structural deficiencies existed prior to plaintiff's purchase of the property. Even prior to the sale, the structural movement "would have caused excessive cracking in the walls and ceilings throughout the house[.]" He stated "that these pre-existing deficiencies and resulting symptoms would have been observed by the prior owner of the home who would have known about the structural and cosmetic repairs implemented to address the problems." Vinciguerra detailed specific corrective measures at an estimated cost of $57,000.

DeMeo also retained an engineer to prepare an expert report for litigation. That report stated that most of the floors were level, although some sloped. It did not offer any explanation for the sloping. That report noted no evidence of ongoing settlement, or any reason to have installed the makeshift pews or sistered joists. Another expert opined the wood framing was adequate to support the structure, and found the stresses "well within the allowable limits." The report acknowledged that the soil conditions were "unfavorable for the specified use[,]" and attributed any settlement of the structure to soil conditions.

One of DeMeo's experts attacked Vinciguerra's finding that framing members were overstressed because no values were supplied for verification. In response, Vinciguerra provided an affidavit setting forth his calculations.

II.

The court dismissed Kieffer's claims by way of summary judgment because DeMeo sufficiently disclosed issues with "ponding[.]" DeMeo had responded "yes" to the question of whether he was aware of any shifting of walls. The judge also noted that the agreement of sale required Kieffer to investigate for insurance purposes whether the structure was within a flood area. Additionally, Paragraph 34 stated:

All warranties, guarantees, representations of Seller concerning the property, the systems servicing the property, the appliances, lot lines, location of structures, driveways, fences and any other matter affecting this Contract, unless
otherwise set forth in writing shall be absolutely void after settlement or delivery and acceptance of possession or occupancy, whichever is earlier. Buyer acknowledges they have the right to purchase a home warranty.

The judge further relied on the provisions in paragraph 36 that neither party had relied on representations made by either of them or their brokers. Assuming "the caselaw doesn't undermine it," that provision "should be binding." The court also took into account Kieffer's "very inquisitive" approach to the purchase, including the questions she had raised.

In oral argument, Kieffer's attorney contended that the judge was making factual findings against his client on disputed issues. The judge said she was "not so sure" that Kieffer's realtor did not convey Sandmann's statements, because "all we have from [Kieffer's] own agents are [']I don't recall[.']" DeMeo's attorney argued that his client made no effort at misleading anyone about the situation, did not live there, and "told what he knew."

After granting DeMeo summary judgment, the court then considered DeMeo's application to bar Kieffer's experts. The judge ruled that Vinciguerra's opinion regarding the twisted beam, "if anything . . . a latent defect[,]" was a net opinion, because Vinciguerra said merely that DeMeo should have seen it. If it was obvious, then the home inspector "should have seen it if it really is true[.]" The judge also said "imposing on a seller of a property the obligation to disclose information that a structural engineer would find obvious or speculate about is . . . farther than this [c]ourt is going to go." Therefore, the judge barred Vinciguerra's testimony because the expert's opinions were "speculative[.]"

With regard to the realtors, Kieffer contended that DeMeo's deposition testimony demonstrated that Sandmann knew the disclosure statement was inadequate, and knew that the withheld information would end the deal. Sandmann had denied that the conversation occurred, and denied making any inspection.

Kieffer argued that the Consumer Fraud Act (CFA) Safe Harbor Provision, N.J.S.A. 56:8-19.1, did not protect Sandmann because it applied where an agent demonstrates that she or he had no knowledge of the false, misleading, or deceptive character of the information. The statutory protection was not triggered if Sandmann could not recall having the conversation DeMeo remembered. Additionally, Kieffer's attorney contended that no expert was necessary to establish a consumer fraud claim in this instance.

Agreeing that neither DeMeo nor Sandmann had conveyed the information to Dooling, the judge found "it was [nonetheless] communicated in the document." The judge characterized the disclosure in the following manner:

the water was revealed and then there was no misrepresentations . . . . There's no expert that states that this is the responsibility of a realtor and to prove the fraud, we would require [Dooling] to say [he] transmitted this information to her and it came directly from Sandmann and he . . . doesn't recall anything.

[(emphasis added).]
The judge also remarked: "I mean, who's responsible to [Kieffer] except her own realtor?" The judge later added that, "[W]e allow [Dooling] off the hook eight years later but we don't allow [Sandmann] . . . off the hook?" She said: "There comes a point in time where [Kieffer] or (inaudible) has to accept responsibility for her participation in this transaction."

Insofar as the Association's summary judgment application, the judge reasoned that deciding whether it met its obligations under the governing documents and the law, depended on whether repair of the water problem was considered a capital improvement or maintenance. The judge said:

It is a capital improvement . . . if the engineer's plans are utilized.

The engineer has an expertise to determine what can be done in this particular area. . . . [T]here needs to be pipes, aerators — all of that is different than what was constructed.
. . . .

A landscaper really doesn't have the qualifications to address this particular plan. If the landscaper says this is my engineer, this is the engineering report that says it can be done this way and it will accomplish it, there would be an issue of material fact.

. . . [The landscaper] said he would use an engineer. It [sic] wasn't an engineer and therefore, there is no issue of material fact that this is a capital improvement and therefore, the duty of the board . . . is limited by the bylaws.

The Board had attempted to resolve the problem, but the owners declined to approve a special assessment to fix it. Because this was "an issue of common ownership, . . . everybody has to agree . . . and they didn't get that agreement." The judge gave no further explanation of her decision regarding the breach of contract claim and rendered no separate findings on Kieffer's argument that the Association's actions breached the statutorily prescribed duties of a condominium association.

Plaintiff's counsel argued that the vote was improper because the Board did not provide the correct notice of the cost and there was no quorum. The court never ruled on that issue and plaintiff does not appeal it. --------

The court made no separate findings on Kieffer's claims that the Association's actions breached its statutory requirement obligations under the Planned Real Estate Development Full Disclosure Act, N.J.S.A. 45:22A-21 to -56, (PREDFDA) either, or the CFA. The judge granted the application, and granted summary judgment on the nuisance claim, because it found no issue of material fact since the water problem was caused by "an act of nature . . . . from the rain and the precipitation[.]" The judge also found the law did not impose a duty to warn on the Association.

On reconsideration, the court reiterated that Kieffer's claims against DeMeo should not be presented to a jury because she had not raised any issue of material fact. Kieffer attempted to turn a real estate contract case "into another case." Kieffer's claims "relie[d] on a suspicious interpretation of regular facts in a real estate transaction[,]" where "[s]he consider[ed] almost every statement a lie" and did not "analyze this as a reasonable person."

With respect to Kieffer's claim that the Association violated the PREDFDA, the court relied on its earlier findings that the Association was limited by its bylaws and that its "funding [was] determined by the homeowners to a certain extent[.]" Kieffer had been given "the opportunity to address the problem," but she "declined because she wanted to maintain her litigation position."

Regarding Kieffer's claim that the Association had violated the CFA, the court said she had provided no case law to support her position that the law applied to homeowners associations. The court did not address Kieffer's other claims against the Association, negligence and breach of fiduciary duties.

On appeal, Kieffer raises the following points:

POINT I: THE COURT BELOW ERRED IN GRANTING SUMMARY JUDGMENT TO DEMEO, SANDMANN[,] AND PRUDENTIAL ON ALL CLAIMS BY FINDING DEMEO MADE NO AFFIRMATIVE REPRESENTATIONS OR OMISSIONS IN HIS SELLER'S DISCLOSURE AND THAT THERE ARE NO GENUINE ISSUES OF MATERIAL FACT.

A. THE LOWER COURT ARBI[T]RARILY INTERPRETED DEMEO'S HANDWRITTEN EXPLANATIONS IN CONTRADICTION OF THE RECORD, AND IGNORED EIGHT OTHER DECEPTIVE STATEMENTS IN THE SELLER'S DISCLOSURE.

B. THE LOWER COURT ERRED IN DETERMINING THAT BECAUSE THIS CASE INVOLVES A CONTRACT, THE CONTRACT'S "[WARRANTIES]" CLAUSES APPLY.

C. NO EXPERT IS REQUIRED TO PROVE FRAUD OR TO PROVE NEGLIGENCE.

POINT II: THE COURT BELOW ERRED BY FURTHER ABSOLVING DEMEO, SANDMANN[,] AND PRUDENTIAL OF ANY LIABILITY BY SHIFTING BLAME TO PLAINTIFF'S REALTOR, [DOOLING], ABSEN[T] ANY EVIDENCE TO SUPPORT THIS FINDING, OR EVIDENCE THAT PLAINTIFF RELIED ON DOOLING OVER DEMEO'S SELLER'S DISCLOSURE, AND WHEN RELIANCE IS NOT A REQUIRED ELEMENT OF CONSUMER FRAUD.
POINT III: IN GRANTING SUMMARY JUDGMENT TO THE ASSOCIATION ON BREACH OF CONTRACT AND DENYING PLAINTIFF'S MOTION ON LIABILITY FOR BREACH OF CONTRACT, THE LOWER COURT FAILED TO APPLY THE ESTABLISHED PRINCIPLES OF CONTRACT LAW.

A. THE PLAIN LANGUAGE OF THE ASSOCIATION'S DECLARATION REQUIRES BOTH THE IMPROVEMENT AND MAINTENANCE OF THE COMMON AREAS, AND NO PROVISION REQUIRES MEMBER APPROVAL FOR "CAPITAL IMPROVEMENTS[.]"

POINT IV: THE COURT BELOW IGNORED EVIDENCE SHOWING GENUINE ISSUES OF MATERIAL FACT AS TO THE ASSOCIATION'S BREACH OF FIDUCIARY DUTY AND NEGLIGENCE AND FURTHER SUPPORTING LIABILITY FOR BREACH OF CONTRACT.

POINT V: THE COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE ASSOCIATION ON NUISANCE AND DENYING PLAINTIFF'S CROSS-CLAIM ON LIABILITY FOR NUISANCE BY MISAPPLYING THE STATE'S NUISANCE LAW.

POINT VI: THE COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE ASSOCIATION ON DUTY TO WARN BY FAILING TO APPLY THE STANDARDS SET FORTH IN APPLICABLE CASE LAW FOR DETERMINING DUTY TO WARN.

POINT VII: THE ASSOCIATION IS SUBJECT TO AND VIOLATED THE CONSUMER FRAUD ACT.

POINT VIII: THE COURT BELOW ERRED BY GRANTING DEMEO'S MOTION TO PRECLUDE THE TESTIMONY OF PLAINTIFF'S EXPERT, FRANK VINCIGUERRA, P.E., AT [THE] TIME OF TRIAL AS TO DEMEO.

POINT IX: IF ANY ISSUE IS REMANDED, THE MATTER SHOULD BE HEARD BY A DIFFERENT JUDGE.

III.

In deciding motions for summary judgment, like the trial court, we "review the competent evidential materials submitted by the parties to identify whether there are genuine issues of material fact and, if not, whether the moving party is entitled to summary judgment as a matter of law." Bhagat v. Bharat A. Bhagat & Cranbury Hotels, LLC, 217 N.J. 22, 38 (2014); R. 4:46-2. Summary judgment should be denied unless the moving party's right to judgment is so clear that there is no room for controversy. Akhtar v. JDN Props. at Florham Park, L.L.C., 439 N.J. Super. 391, 399 (App. Div.), certif. denied, 221 N.J. 566 (2015).

The trial court and the reviewing court must view the evidence in the light most favorable to the non-moving party. Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 115 (2014). This means summary judgment should be denied if the competent evidential materials, viewed in the light most favorable to the non-moving party, permit a rational factfinder to resolve the disputed issue of material fact in favor of the non-moving party. Townsend v. Pierre, 221 N.J. 36, 59 (2015).

The court's function is not to weigh the evidence to determine the final outcome, but only to decide if a material dispute of fact exists. Suarez v. E. Int'l Coll., 428 N.J. Super. 10, 27 (App. Div. 2012), certif. denied, 213 N.J. 57 (2013). It is not the judge's role to assess credibility or determine the truth of the evidence, DeWees v. RCN Corp., 380 N.J. Super. 511, 522 (App. Div. 2005), or to examine whether the preponderance of the evidence weighs towards one side or the other, Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super. 55, 71 (App. Div. 2004), certif. denied, 183 N.J. 213 (2005).

A motion judge may not abrogate the jury's exclusive role as the finder of fact. Suarez, supra, 428 N.J. Super. at 27. That occurred in this case.

IV.

We first address Kieffer's contention that the judge erred by granting summary judgment to DeMeo and the realtors on all her statutory and common law fraud claims. DeMeo argues that the CFA did not apply to his sale to Kieffer. The realtors acknowledge that the CFA applies to them; however, they assert that the Safe Harbor Provision protects them from responsibility.

DeMeo contends that the CFA did not apply to him because he made his living "managing properties[,]" and was not a professional seller of real estate as evidenced by his retention of Sandmann to act as his agent. He and Kieffer never communicated directly until the day of settlement. Even though the trial judge did not reach this issue because she thought the CFA was inapplicable, we consider it necessary to a complete analysis of the statutory and common law fraud claims.

That DeMeo used Sandmann to represent him alone does not negate a possible claim against him. Clearly, the CFA does not apply to individual homeowners who sell real estate in the normal course of personal business. Byrne v. Weichert Realtors, 290 N.J. Super. 126, 134 (App. Div.), certif. denied, 147 N.J. 259 (1996); DiBernardo v. Mosley, 206 N.J. Super. 371, 376 (App. Div.), certif. denied, 103 N.J. 503 (1986). But in this case, that threshold question should have been left to the jury.

DeMeo was a licensed broker, a professional buyer and seller of real estate, and acted as a landlord for that very unit for decades. He received a commission from the sale, belying his contention that he was functioning as a nonprofessional, casual seller of real estate. See Zaman v. Felton, 219 N.J. 199, 223 (2014).

In Heyert v. Taddese, 431 N.J. Super. 388, 413-14 (App. Div. 2013), we found that husband and wife landlords could be held liable pursuant to the CFA in the context of a claim that they charged more rent than permitted by local rent control ordinances. The "alleged violator" must be found to have been "acting in 'a professional "commercial" capacity[.]'" Id. at 412. The "broad scope of the CFA" encompassed even that transaction because it involved "unlawful conduct; an ascertainable loss; and a causal relationship between the unlawful conduct and the ascertainable loss." Ibid. The focus should be on the nature of the transaction. Id. at 412-13.

In this case, DeMeo was a licensed broker with many years' experience in the real estate business. He was paid a commission for the sale of the property. The premises had been managed by him for many years as a commercial investment. He had lived there himself — but in the many years following his 1981 occupancy, he had only rented the property and managed it as a commercial investment.

Although DeMeo's reliance on Sandmann may be relevant to the factfinder's determination, it is not dispositive given the other circumstances when viewed in the light most favorable to Kieffer. This includes the omission of information on the disclosure statement that the unit was located in the Pinelands, or the extent of the problem with standing water.

Even where a defendant is unaware that a representation is false, and does not act with the intent to deceive, he may be found liable under the CFA for an affirmative act or misrepresentation. Gennari v. Weichert Co. Realtors, 148 N.J. 582, 605 (1997). The burden on the plaintiff is to establish a misrepresentation, material to the transaction, made to induce a purchase of real estate. Id. at 607.

The applicability of the Safe Harbor Provision is a question as to the other real estate defendants, Prudential Fox and Sandmann. The statute states:

Notwithstanding any provision of P.L. 1960, c. 39 (C. 56:8-1 et seq.) to the contrary, there shall be no right of recovery of punitive damages, attorney fees, or both, under section 7 of P.L. 1971, c. 247 (C. 56:8-19), against a real estate broker, broker-salesperson or salesperson licensed under R.S. 45:15-1 et seq. for the communication of any false, misleading or deceptive information provided to the real estate broker, broker-salesperson or salesperson, by or on behalf of the seller of real estate located in New Jersey, if the real estate broker, broker-salesperson or salesperson demonstrates that he:

a. Had no actual knowledge of the false, misleading or deceptive character of the information; and

b. Made a reasonable and diligent inquiry to ascertain whether the information is of a false, misleading or deceptive character. For purposes of this section, communications by a real estate broker, broker-salesperson or salesperson which shall be deemed to satisfy the requirements of a "reasonable and diligent inquiry" include, but shall not be limited to, communications which disclose information:

. . . .

(3) that the real estate broker, broker-salesperson or salesperson obtained from the seller in a property condition disclosure
statement, which form shall comply with regulations promulgated by the director in consultation with the New Jersey Real Estate Commission, provided that the real estate broker, broker-salesperson or salesperson informed the buyer that the seller is the source of the information and that, prior to making that communication to the buyer, the real estate broker, broker-salesperson or salesperson visually inspected the property with reasonable diligence to ascertain the accuracy of the information disclosed by the seller.

[N.J.S.A. 56:8-19.1 (emphasis added).]

DeMeo drafted the answers on the disclosure form, and provided it to Sandmann knowing that Kieffer would rely upon it in deciding whether to buy. DeMeo had full knowledge of the property's condition not only because of his ownership of and use of the unit, but also his role on the Board. But if DeMeo's recollection is believed, Sandmann had information regarding the property that arguably should have been disclosed.

On this question, like others, the judge acted as the ultimate factfinder in the course of rendering the summary judgment decisions. The contrasting testimony of DeMeo and Sandmann regarding their conversations concerning DeMeo's disclosure, and her knowledge of the property's defects, is the type of material factual dispute that should have resulted in the denial of summary judgment.

Dooling's deposition testimony was no reason Sandmann should have been exempt from liability, as Dooling did not participate in the conversations between DeMeo and Sandmann, regarding, according to DeMeo, the possibility that a more full disclosure might result in the loss of the sale. Dooling's lack of recollection was not dispositive of any issue.

Additionally, in this case, the judge made the determination that the phrase, "common area remains wet" sufficiently revealed the flooding and standing water conditions. The terms are not equivalent. The jury should have made the decision of whether the explanation sufficed.

Finally, DeMeo's negative response on the disclosure form regarding the Pinelands Commission's jurisdiction was potentially misleading. He not only owned the property, he was a Board member when it retained a consultant to develop solutions to the water problems. The consultant's report raised the issue of the property's location in wetlands and the Pinelands.

To establish a claim of common law fraud, a plaintiff must prove: "(1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages." Allstate N.J. Ins. Co. v. Lajara, 222 N.J. 129, 147 (2015) (quoting Banco Popular N. Am. v. Gandi, 184 N.J. 161, 172-73 (2005)). Unlike a statutory consumer fraud claim that "requires only proof of a causal nexus between the concealment of material fact and the loss[,]" a claim based on common law fraud requires proof of reliance. Id. at 148 (quoting Zorba Contractors, Inc. v. Hous. Auth., City of Newark, 362 N.J. Super. 124, 139 (App. Div. 2003)).

In dismissing Kieffer's breach of contract claim against DeMeo, the judge essentially weighed the evidence, finding that the preponderance tilted towards defendants. See Mandel, supra, 373 N.J. Super. at 71. She deemed Kieffer "suspicious[,]" "very subjective[,]" and unreasonable because she considered "every statement a lie[,]" and that she filed her lawsuit based on mere disappointment. These findings were subjective assessments of the record that should not have factored into the decision on summary judgment.

Furthermore, the court's reliance on the no warranties provision was an inadequate basis for dismissal of Kieffer's fraud-related claims. The CFA was enacted to provide a remedy against those who provide false, misleading, or deceptive information to a prospective purchaser. See N.J.S.A. 56:8-2 and -19.1; see also Byrne, supra, 290 N.J. Super. at 136. Even on common law fraud claims, such waivers are void if a purchaser is able to establish knowing misrepresentations. Byrne, supra, 290 N.J. Super. at 137-39. That Kieffer may have relied on information she received from Dooling does not dispose of DeMeo, Sandmann, and Prudential Fox & Roach's potential liability. If Dooling was given misleading information, that Kieffer relied on him does not insulate defendants.

V.

The court erred in requiring Kieffer to submit expert evidence in order to establish negligence claims against the brokers. Generally speaking, in a case where misrepresentations are at issue, the applicable standard of care is a matter of common knowledge and no expert testimony is therefore necessary.

The Law Division judge did not discuss the applicable law on this issue. She only observed that plaintiff had no expert to interpret the phrase "common area remains wet after rains" as "an inadequate statement[,]" and no expert to state that a realtor is responsible for more. The judge said that, absent expert testimony, any seller could be liable to any buyer who interpreted a disclosure statement differently from the seller.

Expert testimony is admissible and necessary where "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue[.]" N.J.R.E. 702. Expert evidence may be necessary to clarify for a jury the standard of care expected from a reasonable real estate broker. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 444 (1993). For example, brokers are under a duty to conduct a reasonable inspection to ascertain dangerous conditions prior to inviting prospective buyers to an open house. Ibid. That is not a responsibility the trier of fact would be expected to intuitively grasp.

But a standard of care may be derived from many sources, including statutes and regulations adopted by state agencies. Fernandes v. DAR Dev. Corp., 222 N.J. 390, 405 (2015). As Kieffer correctly argues, the standard of care for real estate brokers with respect to disclosure of material conditions concerning the physical condition of a property is found in N.J.A.C. 11:5-6.4, which provides extensive guidance on brokers' obligations to investigate and disclose material information to the public.

The regulation clarifies that a broker shall "make reasonable effort to ascertain all material information concerning the physical condition of every property for which he or she accepts an agency." N.J.A.C. 11:5-6.4(b). The broker's efforts shall include at least an inquiry "to the seller or seller's agent about any physical conditions that may affect the property" and "[a] visual inspection of the property to determine if there are any readily observable physical conditions affecting the property." N.J.A.C. 11:5-6.49(b)(1)(i) and (ii). In this case, Sandmann said in deposition that she had not conducted any visual inspection, thus raising a material issue of fact as to whether she adhered to the standard of care even if Kieffer did not produce an expert.

The regulation also states:

2. As used in this section, information is "material" if a reasonable person would attach importance to its existence or non-existence in deciding whether or how to proceed in the transaction, or if the licensee knows or has reason to know that the recipient of the information regards, or is likely to regard it as important in deciding whether or how to proceed, although a reasonable person would not so regard it.

(c) Licensees shall disclose all information material to the physical condition of any property which they know or which a reasonable effort to ascertain such information would have revealed to their client or principal and when appropriate to any other party to a transaction. Licensees shall also disclose any actual or potential conflicts of interest which the licensee may reasonably anticipate.

[N.J.A.C. 11:5-6.4(b)(2) and (c).]
In light of the explicit standard of conduct found in the regulation, Kieffer should not have been required to produce an expert on the question of negligence.

VI.

The decision to admit or exclude expert testimony is left to the sound discretion of the trial court. Townsend v. Pierre, supra, 221 N.J. at 52. It will be reversed only upon a showing that that discretion was abused. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011). In this case, the discretion was misapplied.

Vinciguerra's report and deposition testimony supplied ample support for his conclusions. That defendant's expert disagreed was a conflict the factfinder should have resolved. In this case, the judge found defendant's expert credible and Vinciguerra's lacking in merit. Based on our review of his report, it is clear Vinciguerra provided a basis for his opinion.

VII.

The judge treated the condominium owners' vote rejecting the special assessment to correct the flooding problem as relieving the Association from any further responsibility. There was neither a legal nor a factual basis for that determination.

The responsibilities and requirements expressed in an association's governing documents are enforceable contractual obligations. Highland Lakes Country Club & Cmty. Ass'n v. Franzino, 186 N.J. 99, 111 (2006). In this case, multiple provisions throughout the Association's governing documents require it to maintain the common areas in good repair for the health, safety and welfare of the residents, and "to preserve and enhance the property values and amenities of the community[.]"

Similar obligations governing condominium associations are set forth in the Condominium Act, N.J.S.A. 46:8B-1 to -38. The statutorily prescribed duties of an association include the "maintenance, repair, replacement, cleaning and sanitation of the common elements," N.J.S.A. 46:8B-14(a), and the "assessment and collection of funds for common expenses and the payment thereof," N.J.S.A. 46:8B-14(b). An association "shall exercise its powers and discharge its functions in a manner that protects and furthers or is not inconsistent with the health, safety and general welfare of the residents of the community." N.J.S.A. 46:8B-14(j). An association's "most significant responsibility" is to manage and maintain the common areas of the condominiums complex. Thanasoulis v. Winston Towers 200 Ass'n, 110 N.J. 650, 656-57 (1988).

Condominiums also are governed by the statutory requirements found in PREDFDA. N.J.S.A. 45:22A-23(h). Those powers and duties include the following:

b. The association shall exercise its powers and discharge its functions in a manner that protects and furthers the health, safety and general welfare of the residents of the community.

c. The association shall provide a fair and efficient procedure for the resolution of disputes between individual unit owners and the association, and between unit owners, which shall be readily available as an alternative to litigation.

[N.J.S.A. 45:22A-44.]

In addition, an association's responsibilities and conduct are regulated by common-law principles. It has a fiduciary relationship to the condominium's unit owners comparable to that of a corporate board and its shareholders. Siller v. Hartz Mountain Assocs., 93 N.J. 370, 382, cert. denied, 464 U.S. 961, 104 S. Ct. 395, 78 L. Ed. 2d 337 (1983). This fiduciary obligation "includes the duty to preserve and protect the common elements and areas for the benefit of all its members." Kim v. Flagship Condo. Owners Ass'n, 327 N.J. Super. 544, 550 (App. Div.), certif. denied, 164 N.J. 190 (2000). An association is also liable in negligence to its members to the same extent it is liable to nonmembers. Buteas v. Raritan Lodge #61 F. & A.M., 248 N.J. Super. 351, 358 (App. Div. 1991).

The business judgment rule also protects individual condominium homeowners against improper or unbridled use of power by their association. Comm. for a Better Twin Rivers v. Twin Rivers Homeowners' Ass'n, 192 N.J. 344, 369 (2007). The actions of a homeowner's association will be invalidated if unauthorized by statute or the governing documents or if they are fraudulent, involve self-dealing or are unconscionable. Ibid.

The judge made no findings regarding the Association's actions vis-à-vis the standing water problem and whether it had fulfilled its contractual, statutory, or common law duties to Kieffer. There was no basis to conclude that the one-time vote excused further action because the judge considered the work to correct the flooding problem a capital improvement. She cited the definition of the term found in Ocean Club Condominium Ass'n v. Gardner, 318 N.J. Super. 237, 239 (App. Div. 1998), but went no further. That definition is not relevant here.

The declaration of covenants found within the Association's governing documents includes a section titled "Special Assessment for Capital Improvements." However, it does not eliminate various possibilities that could be presented to a jury including the possibility of payments made through regular annual assessments, a special assessment, or through a mortgage. By law, condominium owners "have 'implied powers,' meaning 'all the powers reasonably necessary for management of the common property, administration of the servitude regime, and carrying out other functions set forth in the declaration.'" Fox v. Kings Grant Maint. Ass'n, Inc., 167 N.J. 208, 222 (2001) (quoting Restatement (Third) of Property: Servitudes § 6.4 cmt. a (2000)). Therefore, the extent of the Association's responsibility as a matter of law was not put to rest by the "no" vote.

VIII.

Kieffer contends the Association should have warned her regarding the condition. In Siddons v. Cook, 382 N.J. Super. 1 (App. Div. 2005), we held that a condominium association has a duty to warn a homeowner of potential flooding hazards from broken dishwasher hoses in adjoining condominium units. Condominium owners, not prospective purchasers, are entitled to such notice. That is not precedential here.

IX.

Kieffer further asserts her nuisance claim against the Association should not have been dismissed and that she was entitled to summary judgment on the issue. A claim of private nuisance is predicated on the unreasonable interference with the use and enjoyment of one's land. Ross v. Lowitz, 222 N.J. 494, 505 (2015); Smith v. Jersey Cent. Power & Light Co., 421 N.J. Super. 374, 389 (App. Div.), certif. denied, 209 N.J. 96 (2011). A defendant may be liable for causing a private nuisance if his or her conduct "is a legal cause" of the invasion in another's interest in the private use and enjoyment of that person's land. Ross, supra, 222 N.J. at 505 (quoting Restatement (Second) of Torts § 822 (1979)).

The interference need not be intentional to be actionable. Ibid. An actor may be liable for a private nuisance based on either "an act or a failure to act under circumstances in which the actor is under a duty to take positive action to prevent or abate an interference." Birchwood Lakes Colony Club, Inc. v. Medford Lakes, 90 N.J. 582, 592 (1982); Restatement (Second) of Torts § 824 (1979); accord Ross, supra, 222 N.J. at 507.

An intentional invasion of another's use of his or her land is unreasonable if:

(a) the gravity of the harm outweighs the utility of the actor's conduct, or

(b) the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible.

[Birchwood Lakes Colony Club, supra, 90 N.J. at 592 (quoting Restatement (Second) of Torts, § 826 (1979)).]

The judge cited language from Birchwood Lakes Colony Club in dismissing plaintiff's nuisance claim. But Birchwood Lakes Colony Club does not support the court's conclusion that no dispute of material fact existed. See ibid. The trial court's ruling ignored the language in Birchwood Lakes Colony Club, which made it clear that a defendant's failure to act when under a legal duty to prevent or abate a nuisance provides a basis for liability.

Moreover, the standard for determining an actor's liability for creating a nuisance does not require that the actor literally cause the interference with the landowner's interest. Rather, liability may be grounded on the defendant having been "the legal cause" of the problem. See Smith, supra, 421 N.J. Super. at 389; Restatement (Second) of Torts § 822 (1979).

Thus the question is whether the Association had a legal duty to act. Although Kieffer is not entitled to summary judgment on the issue in light of the financial burden on the Association and the potential jeopardy of undertaking the necessary improvements, the count should not have been dismissed.

X.

The final point we consider is Kieffer's claim that the trial court erred by dismissing her claim for violation of the CFA against the Association. This point is so lacking in merit as to not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Reversed in part; affirmed in part.

I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION


Summaries of

Kieffer v. David Demeo, Individually, Prudential Fox & Roach Realtors, Constance Sandmann, Individually, Taunton Trace Homeowners Ass'n, Inc.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Mar 23, 2016
DOCKET NO. A-4621-13T3 (App. Div. Mar. 23, 2016)
Case details for

Kieffer v. David Demeo, Individually, Prudential Fox & Roach Realtors, Constance Sandmann, Individually, Taunton Trace Homeowners Ass'n, Inc.

Case Details

Full title:RITA KIEFFER, Plaintiff-Appellant, v. DAVID DEMEO, individually…

Court:SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Mar 23, 2016

Citations

DOCKET NO. A-4621-13T3 (App. Div. Mar. 23, 2016)

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