Q&A: Financial Worthiness?

Q I am trying to purchase a condo but the board is holding up the process based on  my financial status. I don't know what the problem is because I have an  excellent credit history and no lawsuits against me. I will even have enough  money in the bank to pay the mortgage and maintenance fees for over a year. Yet  the board still believes that my credit is not good enough and desires a  co-applicant on the mortgage application. Do I have any kind of rights in this  situation? Is there such a thing as financial discrimination?  

 —Frustrated in Freehold  

A “The short answer is – Yes, you have rights. The board of the association has the benefit of the business judgment rule in  New Jersey,” says attorney Bruce Ackerman of the law firm of Pashman Stein in Hackensack,  New Jersey. “Basically, that rule of law provides that, unless there is a showing of items  such as bad faith, self-dealing, discrimination, dishonesty or other  illegality, the discretion of the corporation lies with the board to decide. In essence, bad judgment without bad faith will not overturn a board decision. Unless the condo bylaws provide otherwise, or establish some specific  application requirements and standards for approval, this general legal  standard should apply. The term discrimination in this context protects against discrimination based on  age, sex, national origin, disability and similar legally protected categories.  

 “Typically, the “reasonable” request upon application would include the applicant’s financial responsibility, the identity of the proposed resident (whether  applicant, a relative or renter), and the nature of the proposed occupancy,  such as the attitude of the applicant and how he or she will get along with  others at the development. The courts want these types of decisions to rely on objective standards to the  extent possible. In a case where a board was found not to be discriminatory, but the board found  the applicant’s answers to questions to be vague and unresponsive, the court overturned the  decision to reject the applicant due to the board being subjective and  unreasonable.  

 “Because of the financial interdependence of unit owners, the most important  issue for board review is the ability of the applicant to make maintenance and  other payments. You can request the basis for the denial or grounds for requiring further  financial assurances, but may not receive the explanation in writing. However, as long as the board is treating your application substantially the  same as all others, you would be hard pressed to overturn the decision. To the contrary, however, if you find that the board is being unreasonable, or  you learn that the board has approved others similarly situated, perhaps  because of some relationship with a board member or another unit owner, you  would have a basis to challenge their denial.”      

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Comments

  • Enoch (not a lawyer) on Wednesday, July 4, 2012 1:34 PM
    I question the accuracy of this legal answer: AFAIK in a NJ condo situation the association can only consider exercising the ROFR (right of first refusal) to stop transfer of title and this right had even been eliminated in new condos altogether. See NJ Cooperator #391 "Not-in-the-Garden-State".