The New Jersey Appellate Division, in an unpublished decision, recently allowed a class action by individual unit owners to proceed against K. Hovnanian for alleged damages to their individual units. D’Andrea v. K.Hovnanian No. A-4404 11T4.

Generally speaking, a home in a community association is typically comprised of three types of property:

Common elements- roads, roofs, facades, clubhouses, amenities, utilities, etc.

Limited common elements- balconies, patios, etc.

Unit owner items- sheetrock, doors and windows.

This varies from association to association and owners should check their governing documents for a definition of what is considered a common element and a unit owner item.

Broadly speaking, the Association has the burden to bring claims against the developer and the construction trades for common elements, limited common elements, and for some unit owned items (leaking windows and doors) that impact the common elements.

Claims for defects in unit owned items that do not impact the common elements are left to the homeowners themselves.

In the D’Andrea matter, the unit owners sought to bring a class action against K. Hovnanian claiming that the defendants construction of the HVAC return cavities failed to meet the fireblocking requirements in applicable construction codes. While each unit had slightly different construction methods, the allegations all centered around the singular objective question of whether the the return cavities were properly fireblocked.

In essence, the plaintiffs claimed that the HVAC ducts, which run between the studs, were not properly installed to comply with the applicable building codes. The return cavity, which is a necessary component of the HVAC system, is an area of negative pressure. Since fire tends to move from positive to negative pressure, it is important for safety reasons, that those spaces be isolated by fireblocking and proper sealing from cavities not used for air movement.

The Trial Judge ruled, and the Appellate Division affirmed, that the matter should be brought as a class action rather then requiring the approximately 1,000 home owners to bring separate suits.

The Courts based their reasoning on the following:

  1. the sheer size of the class;
  2. common questions of law and facts; and
  3. the defendants had similar defenses.

K. Hovnanian argued that there was a complete absence of precedent in New Jersey regarding class action certifications for single family construction defect cases. However, the Appellate Division relied upon precedent from case law established in other types of class action lawsuits in reaching their decision to certify the class in this matter.