Q&A: Playroom Proposal

Q Our building has two rooms immediately off the ground-floor lobby that are also opposite three occupied apartments. One room is used for building meetings while the other currently holds some storage. Several unit owners wish to make the room(s) available for their small children to play in. (This was tried several years ago but abandoned for unknown reasons. However, the noise of the children was disruptive to the occupants of the nearby apartments.) The board has turned down the request from this new set of parents but the parents indicate that they plan to pursue it. What local and state laws prevail in such a plan to open a building playroom for toddlers? What rights do the nearby unit owners have in maintaining the quiet enjoyment of their premises?

—Seeking Playtime in New Jersey

A “In such a case, I am not aware of any laws or cases that would require this building to allow the owners to utilize this space as they desire,” says David J. Byrne of the law firm of Stark & Stark in Lawrenceville. “This space is likely subject to the board’s general powers associated with the use, etc. of common areas. The board should simply be mindful of its fiduciary duty to operate in step with the master deed and bylaws. They must adhere to those documents and make its decision in good faith.

“Again, the nearby unit owners have the right to whatever protections are afforded them by virtue of the master deed and bylaws (the questioner says ‘unit owner’ and hence my assumption that this is a condominium, not a cooperative). In all likelihood, those governing documents do not guarantee a unit owner a right to ‘quiet enjoyment,’ but instead prohibit owners and/or occupants from being a nuisance, disturbing the peace, etc. In turn, the owners seeking ‘quiet enjoyment’ could demand that the board ensure the absence of any nuisances, etc. They could require the board to impose penalties on the offenders, take legal action, etc., but not without first offering the complaining owners and the offending owners the right to participate in alternative dispute resolution or ADR.

“Ultimately, the existence of a nuisance is very subjective, and not easily addressed by a board in a situation like this. The board may not necessarily have the obligation to take any action at all in the fact of a nuisance complaint, absent making ADR available. The board’s decision to act, or not to act, would likely be protected by the business judgment rule; that is, did the board act or not act in accordance with the master deed and/or bylaws, and did the board act or not act in good faith and reasonably. This is precisely the discussion above related to the board’s decision to have, or not have, the children’s playroom in the first place.

“As can be seen here, a board is often faced with competing interests; which is no different than the interests and challenges faced every day by all types of elected officials. Ultimately, a board, just as an elected official, or politician, can very rarely please every person at every time. In the community association concept, a board must consider each issue and/or competing interest, being mindful of its duties as set forth in the governing documents, and of its obligation to act or not act in good faith and reasonably.”

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