New Tiered, Flexible Multiple Dwelling Inspection Schedules in New Jersey

Acting Governor Sheila Oliver has signed into law S1150, creating a flexible inspection schedule under the Department of Community Affairs (DCA) for multiple dwelling inspections under Title 40.

Historically, the DCA has required inspections at a minimum of once every five years. The length of time between inspections raised concerns over what additional violations could take place over the period before the next inspection, as well as the potential lack of action to address noted issues. To provide a solution, S1150 was introduced by sponsors Sen. M. Teresa Ruiz and Sen. Brian Stack.

Rental properties, co-ops and condominium inspections are all affected by the new law, with inspections will be scheduled on a seven, five or two year schedule depending on the number of inspection violations and abatements. The frequency of inspections will be adjusted based on those numbers, allowing the DCA to ensure adequate conditions without placing an undue burden on those dwellings who consistently pass inspection standards.

Under this tiered systems, inspections will take place as follows:

• Every seven years where no violations are found or all violations are abated before the first reinspection
• Every five years in dwellings where all violations are abated by the second or third reinspection
• Every two years in dwellings where all violations are not abated by the third reinspection

Under previously established New Jersey rules, the DCA Commissioner may also establish standards for self-inspection by condominium associations for buildings that are no taller than 3 stories, built after 1976, and certified by the local enforcement agency to be in compliance with the Uniform Fire Code. To receive this self-inspection status, the units must be 80% occupied.

The new law also requires each multiple dwellings occupied by three or more persons living independently of each other to file a certificate of registration, along with a fee to be determined by the DCA Commissioner. Once the certificate of registration is obtained, it must be posted prominently in a conspicuous place on the premises.

This registration must be filed annually, with property owners being required to certify the accuracy of the information in the certificates. Should the information change, an amended registration certificate must be filed within 20 days after any change in the information previously provided registration. The content of this formal registration form hasn’t been determined yet, as it needs to be authored by the DCA Commissioner.

The registration rule also requires each multiple dwelling to appoint an agent for the purpose of notice process. Most likely, the agent assigned will be the management company of each particular multiple dwelling community. Certain violations of this law can result in a $200 penalty for each violation.

With the passing of S1150, the DCA will be able to more adequately monitor dwellings and ensure timely resolutions to inspection issues.

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A Case of Bananas: Costume Copyright Infringement

Not all bananas are created equally. Rasta Imposta, a retail wholesaler of Halloween costumes, filed a claim for copyright and trade dress infringement and unfair competition against Kangaroo Manufacturing, another costume retailer, after Rasta’s CEO discovered Kangaroo selling a costume that resembled one of Rasta’s costumes without a license. The costumes in issue in Silvertop Assocs. v. Kangaroo Mfg., No. 18-2266, 2019 U.S. App. LEXIS 22989 (3d Cir. Aug. 1, 2019) consisted of full-body yellow banana outfits:

The District Court granted a preliminary injunction against Kangaroo, prohibiting its use of the costume design without a license. On appeal, the Third Circuit considered the issue of whether non-utilitarian, sculptural features of a costume were copyrightable, which they determined by analyzing whether (1) the 2- and 3-dimensional banana-design features could be identified separately and (2) exist independently on their own or in some other medium separate from their utilitarian features. This is because “useful articles,” such as clothing apparel, must incorporate something beyond the mere function of the article of clothing to be eligible for copyright protection.

Relying on the fairly recent Supreme Court decision in Star Athletica, the court found that Rasta’s banana costume’s artistic features, including its colors, lines, shape, and length were sculptural features that proved both separable and capable of independent existence. Additionally, those sculptural features excluded cutout holes for the custom wearer’s arms, legs, and face or the holders’ dimensions or locations on the costume because those are simply utilitarian features of the costume and ineligible for copyright protection. The court declined to inspect each feature of the banana sculpture individually but looked at the sculpture as a whole.

Kangaroo countered by arguing that a depiction of a natural object is unoriginal and there can be no infringement because both costumes are of a generic banana. The court disagreed and pointed out that the originality requirement for copyright protection is quite low; as long as there is a modicum of creativity, a creative expression of natural objects can be copyrightable. Accepting Kangaroo’s proposition would deny copyright to creative works based on unoriginal, ubiquitous elements such as Andy Warhol’s famous image of a ripe banana.

 

Lastly, Kangaroo asserted that copyrighting the banana costume would effectively monopolize an underlying idea and prevent the idea’s expression. Ideas are excluded from copyright protection under the doctrine of merger only when there are no or few other ways of expressing a particular idea. The court rejected the notion that there were prohibitively limited ways to express a banana in a costume, finding instead that there were many other ways to make a costume resemble a banana; in fact, Rasta provided 20 other designs that did not infringe on its banana costume design. Additionally, Kangaroo could not identify any specific feature that necessarily resulted from the costume’s subject matter. Despite the fact that a banana is commonly yellow, it could be any shade of yellow or green or brown. It could have spots, green streaks, etc. A banana does not need to be curved and its tips do not need to resemble Rasta’s costume’s black tips in color, shape or size.

The Court’s decision acknowledges the creative effort that goes into creating costumes, even those based on generic objects and concepts. This decision, coupled with the U.S. Copyright Office’s recent registration for Adidas’ Yeezy Boost 350 in May after two years of correspondence, shows that there are alternatives to design patents for designers looking to protect the creative elements of their clothing, handbags, footwear, and other accessories beyond their inherent utility function.

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What is a Holographic Will?

When a loved one passes, questions may arise as to who possesses the Decedent’s Last Will and Testament. If a formal document exists that was validly executed and was drafted by an attorney, chances are that the document is a valid Last Will and Testament unless a challenge is levied against it. What may become problematic is when a handwritten document in the testator’s own handwriting is discovered. The question then becomes if this handwritten document is a valid Last Will and Testament of the Decedent. In general, a handwritten instrument of this nature is called a Holographic Will, and may be enforceable provided certain requirements are met.

Typically, Courts often do the best they can to accept as a Last Will and Testament a writing by the Decedent where it is clear that the Decedent intended the instrument to be their Last Will and Testament. That is because the Courts would rather enforce the wishes of the Decedent than to allow the document to be invalidated based upon a mere formality. Perhaps the least formal of all Last Wills and Testaments which may be admitted to Probate is a document called a Holographic Will. These documents are relatively simple and are akin to something that a Decedent wrote on a piece of notebook paper and signed. The requirements of a Holographic Will are set forth below.

In general, pursuant to N.J.S.A, 3B:3-2B, a Will can be considered a Holographic Will and admitted to Probate if the signature and the material portions of the document are in the Decedent’s handwriting. The Holographic Will must have all material testamentary provisions in the handwriting of the testator and also must be signed by the testator. What this means is that the provisions in the Will which dispose of the Decedent’s property must be in their own handwriting and not the handwriting of another. Further, the Will must be signed by the Decedent and not another party. As noted, this is a very simple instrument and is akin to a piece of notebook paper upon which a Decedent described how to transfer his/her property.

Provided the Will meets the requirements of a Holographic Will, it may be admitted to Probate and the Decedent’s Estate may be distributed in this regard. Different things could occur if not all the Decedent’s property is disposed of pursuant to a Holographic Will, however, that is best left for another blog. The purpose of this blog is to merely highlight one potentially type of valid Last Will and Testament which is informal in nature.

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Puppynup – It’s a Thing, and If You Are an Animal Lover, You Need It

Audrey and Matt are young and in love. They have just graduated college and adopted Tenley, a one-year-old shelter puppy. Carol and Jack are in their late 50s and are getting married. Carol raises show dogs, and one of her dogs, Buddy, won multiple prestigious awards for agility. Steve and Jill, both in their early 30s, are getting married once Steve finishes his residency. Jill is an avid horsewoman and they plan to buy a property large enough to accommodate a stable. Finally, Larry and Sarah are getting divorced. They agree that the dog, Riley, should follow the children, which they will share custody of equally. However, in addition to the fact that Larry and Sarah both work and need doggy day care, Larry has substantial travel requirements for his job, which necessitates either Sarah taking Riley more than half the time, or expensive boarding expenses.

Deciding at the beginning of a marriage or cohabitation what will happen to a pet in the event of a break up is as, if not more, important than deciding what happens to a house, or bank accounts. Animal lovers will claim their beloved furry friends are irreplaceable, unlike getting a credit for your interest in a house, pension, or a portion of a bank account. Moreover, pet insurance rarely covers all of the medical expenses associated with pets.

Evidence suggests there are psychological, physical, and social benefits in human-pet relationships, especially for dog and cat owners (Hirschman E. C. Consumers and their animal companions. Journal of Consumer Research (1994). Studies also show that length of ownership also has an important influence on pet attachment. Those who owned their pet for more than three years report stronger attachments to their pets (Smolkovic, Fajfar, and Mlinaric, Attachment to pets and interpersonal relationships: Can a four-legged friend replace a two-legged one? Journal of European Psychological Students).

California passed a law earlier this year that allows courts to make custody determinations for animals.

In New Jersey, the courts generally rule that:

• Pets are still considered personal property, but they have a unique sentimental value that cannot be quantified with a price tag;
• Pet ownership rulings are based in contract law, not the “best interest of the animal.” (In other words, the Court would uphold a pet custody agreement in an Marital Settlement Agreement);
• New Jersey Courts can issue shared possession orders for family pets;
• A hearing may be held to determine which party had the greater attachment to the pet if there is an allegation of an oral agreement. (Houseman v. Dare, 405 N.J. Super. 538 (App.Div. 2009)

In Carol and Jack’s case, as well as Steven and Jill’s, there may be a claim for the effort and funds which were used in the training of the animals, the prize money, the anticipation that the animal will continue to win awards and any breeding fees.

These are just a few issues that come up in family cases which include animals. As with any premarital agreement, or cohabitation agreement, it important to make decisions before there is a problem, or break up. This can avoid heartbreak and significant legal fees down the line. Knowing with certainty what happens is far better than having to place the future of a beloved furry friend in the hands of a stranger.

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Appellate Division Rules: No Custody Evaluation Without Finding of Changed Circumstances

Last week, Eric Solotoff and I achieved victory in the Appellate Division in the unreported (non-precedential) decision of Gatto v. Breton, wherein the Court reversed the trial court’s order permitting the Plaintiff father to obtain a custody evaluation without the requisite finding of changed circumstances.

By way of background, the parties were divorced in 2011 following a brief marriage. They have one son, who is 14 years old. The boy lives primarily with the Defendant mother in Bergen County and spends time with the Plaintiff father every other weekend and alternating Wednesday evenings.

Since the parties’ divorce, they have heavily litigated in the trial court. As of the time of the Appellate Division filings, the parties had been before 5 judges in 2 different counties on various post-judgment applications. All of such applications involved various aspects of custody and parenting time disputes.

About a year before the appeal was filed, the Plaintiff father filed a motion for a custody evaluation and a change in custody. The judge denied the request, finding that the Plaintiff father had not shown a change in circumstances, which a party seeking a change in custody must establish as an initial matter to gain relief according to the seminal case of Lepis v. Lepis.

In so ruling, the judge specifically rejected the Plaintiff father’s argument that the child’s age and alleged statements that he wished to live with his father were sufficient in light of the ample proof that he was thriving under the arrangement then in place.

Less than a year later, a new judge – the parties 5^th – heard yet another motion by the Plaintiff father to permit him to obtain a custody evaluation and to transfer custody to him.

The judge denied the request to transfer custody, finding “no prima facie showing that it’s [in] the best interests of this child and there hasn’t been a demonstration that there is a significant change in circumstances.” Despite such finding, however, the judge permitted the Plaintiff father to obtain a custody evaluation. The Defendant mother’s appeal followed.

The Appellate Division reversed the trial court’s order permitting the Plaintiff father to obtain a custody evaluation, stating that such an order went against the well-founded principle that a party seeking a change in custody must demonstrate changed circumstance before being entitled to discovery and an evidentiary hearing.

Yet, in the instant matter, the judge expressly found that the Plaintiff father had failed to establish a change in circumstances. As a result, the Appellate Division determined that the Plaintiff father was not entitled to a custody evaluation, which requires “a very expensive and intrusive investigation into all aspects of the parties’ lives and the best interests of their child.” Permitting such an evaluation “is plainly permitting extensive discovery which…may only be ordered following a prima facie showing of changed circumstances.”

The Appellate Division’s decision in this case makes clear that custody evaluations are not to be ordered lightly and without the initial finding of a change in circumstances. Custody evaluations are serious endeavors, which require a forensic custody evaluator “to assess the personality and cognitive functioning of the person being examined to assist the court in a best interests determination.” A trial court is, therefore, prohibited from skipping the critical step of finding a change in circumstances prior to making its determination to permit such an intrusion into the lives of the parties and the child.

For more information on my Appellate Practice and the process I undertake in preparing you for success in the Appellate Division, see my prior blog: Trying Cases with an Eye Toward Appeal: What Your Lawyer is Thinking and Doing at the Trial Level to Preserve Your Case.

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Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a partner in the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.

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Summer Bummers: DUI Rates in the Summer Months

As the temperatures get higher, it might not come as a surprise that more people are getting behind the wheel after a few too many drinks. Summer barbecues, pool parties and picnics make it easy to get casual about drinking. A few drinks on a hot day can seem like a nice, refreshing way to cool down, but it’s important to know when to stop. If you need to drive, know when it’s time to call a friend.

Perkins & Marie Callender Files for Chapter 11 Bankruptcy

Perkins & Marie Callender’s LLC, filed for Chapter 11 bankruptcy this morning in Delaware under docket number 19-11743.

The Memphis, Tenn. family-dining chain previously filed in 2011. Prior to filing, the company operated more than 400 locations in the two brands, including 400 Perkins Restaurant & Bakery locations (134 company and 266 franchised) and 38 Marie Callender’s restaurants (8 company and 30 franchised.

Perkins & Marie Callender was on our top retailers to watch for a bankruptcy filing blog, which was also picked up by the National Law Review.

If you have a Perkins & Marie Callender lease in your center, Stark & Stark’s Shopping Center & Retail Development Group can help.

Our bankruptcy attorneys regularly represent landlords throughout the country, including recently in the Eastern District of Missouri, District of New Jersey, Southern District of New York, District of Delaware, District of Minnesota, and the Western and Eastern Districts of Pennsylvania regarding a variety of issues.

Our Group has been counsel to landlords and trade creditors in the Mattress Firm, Toys “R” Us, Payless, Eastern Outfitters (EMS Part 2), EMS, Golfsmith, RadioShack, General Wireless (RadioShack 2), Gander Mountain, A&P, Joyce Leslie, rue21, Central Grocers, and Sports Authority chapter 11 bankruptcy cases.

For more information on how Stark & Stark can assist you, please contact Thomas Onder, Shareholder, at (609) 219-7458 or tonder@stark-stark.com or Joseph Lemkin at (609) 791-7022 or jlemkin@stark-stark.com.

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NJ to Prohibit Employers from Requesting Salary History from Job Applicants

Effective February, 1, 2020, New Jersey will join other 16 states (AL, CA, CO, CT, DE, HI, IL, ME, MA, MI, NY, NC, OR, PA, VT, WA, & WI) and 17 local governments (San Francisco, Atlanta, Chicago, Louisville, New Orleans, Jackson, MS, Kansas City, MO, New York City, Albany County, NY, Suffolk County, NY, Westchester County, NY, Cincinnati, Philadelphia, Pittsburgh, Richland County, SC, & Salt Lake City) in prohibiting employers from requesting salary history from job applicants.

New Jersey’s recent law prohibits employers from using salary information to screen a job applicant. The law is not applicable to internal candidates or promotions. Further, the new law does not prohibit an employer from considering information from a candidate’s prior employment with it.

Civil penalties for those who break the new law are up to $1,000, for the first offense, $5,000, for a second offense, and $10,000, for any subsequent violations.

This new law follows the enactment of the New Jersey Equal Pay Act, which requires equal compensation for substantially similar work.

Clearly, employers need to be mindful of these new laws which are being enacted all over the country.

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