WILLIAM C. SLATTERY VS. BOARD OF TRUSTEES OF THE POINTE AT CRYSTAL LAKE CONDOMINIUM OWNER'S ASSOCIATION, INC. (C-000230-17, ESSEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3169-18T3
WILLIAM C. SLATTERY
and JILL S. SLATTERY,
Plaintiffs-Appellants,
v.
BOARD OF TRUSTEES OF
THE POINTE AT CRYSTAL
LAKE CONDOMINIUM
OWNER'S ASSOCIATION, INC.,
Defendant-Respondent.
Submitted January 14, 2020 – Decided March 19, 2020
Before Judges Currier and Firko.
On appeal from the Superior Court of New Jersey,
Chancery Division, Essex County, Docket No. C-
000230-17.
William C. Slattery and Jill S. Slattery, appellants pro
se.
Goldberg Segalla, LLP, and Stewart G. Milch
(Goldberg Segalla, LLP) of the New York bar, admitted
pro hac vice, attorneys for respondent (Reshma Khanna
and Stewart G. Milch, on the brief).
PER CURIAM
Plaintiffs William and Jill Slattery appeal from the February 11, 2019
order granting summary judgment to defendant Board of Trustees of The Pointe
at Crystal Lake Condominium Owner's Association, Inc. (The Pointe). After a
review of the contentions in light of the record and applicable principles of law,
we affirm.
In 2001, plaintiffs signed a contract to purchase a condominium unit at
The Pointe from the developer. The Master Deed (Master Deed I) included in
the Public Offering Statement (POS) contained drawings for the particular unit,
which showed an option for a deck with steps to the ground. Master Deed I was
not signed or dated.
In the Notice to Purchasers, the POS advised it "IS FOR
INFORMATIONAL PURPOSES ONLY" and that "PURCHASERS SHOULD
ASCERTAIN FOR THEMSELVES THAT THE PROPERTY OFFERED
MEETS THEIR PERSONAL REQUIREMENTS." The POS stated that the
developer retained the right to amend the master deed and warned that the
information and documents contained within it "may not be relied upon." The
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POS informed purchasers that the "unrecorded" Master Deed I was a "sample
deed . . . ."
Master Deed I was never filed with the county clerk's office. Instead,
Master Deed II, dated August 1, 2000 and recorded on September 13, 2000, was
the controlling deed. Although its drawings still allowed for an optional deck,
they no longer depicted any steps from the deck to the ground. Any property
beyond a unit's deck was deemed a common element.
Joan Carella also purchased a unit at The Pointe from the developer pre-
construction. She then placed it on the market. Plaintiffs preferred the style and
location of Carella's unit to the one they had contracted for. After the developer
agreed to cancel plaintiffs' contract, they purchased Carella's unit.
The developer-to-Carella and Carella-to-plaintiffs closings were held
back-to-back on June 21, 2001. The survey certification and release of the
mortgaged property documents provided to plaintiffs at closing referred to the
master deed dated August 1, 2000 and recorded on September 13, 2000. The
condominium deed contained the same language regarding the recording of the
master deed.
In 2006, The Pointe adopted a "RESOLUTION REGARDING
EXTENSION OF DECKS." The resolution permitted unit owners to extend
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their decks and add steps, at their own expense. The first paragraph of the
resolution stated the master deed was recorded in the Essex County Clerk's
office on September 9, 2000. Several unit owners sued defendant, contending
the resolution was ultra vires because it authorized the modification of the
common elements without the unanimous consent of all of the unit owners.
In February 2008, the court granted the unit owners' motion for summary
judgment. In its written decision, the court found the resolution violated the
provisions of the master deed and the New Jersey Condominium Act, N.J.S.A.
46:8B-1 to -38. At the time, William was The Pointe's president. He provided
a copy of the decision to The Pointe, noting it did not intend to appeal.
In 2013, plaintiffs installed a gate on their deck and metal removeable
steps from the deck to the ground. In June 2015, The Pointe's community
manager advised plaintiffs by letter that they were in violation of § 9.2(b) of the
master deed. Under both Master Deed I and II, § 9.2(b) states that unit owners
cannot "make any structural additions, repairs, alterations or improvements . . .
to the Common or Limited Common Elements . . . without the prior written
approval of the Board."
In response, plaintiffs requested The Pointe grant them retroactive
approval because Master Deed I allowed deck stairs. In September 2015, the
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community manager informed plaintiffs that the master deed they were relying
on, the unrecorded Master Deed I, was not the final recorded deed. Master Deed
II, filed on September 13, 2000, was the recorded and governing master deed.
The letter stated further:
The master deed provides that you may not alter the
appearance of the deck without approval of the
[Pointe]. In addition, the [Pointe] in reaching its
determination took into consideration the use of the
step stool as a means of exiting the deck through the
gate to grade. The [Pointe] has determined that the gate
is not appropriate, as it changes the appearance of the
deck. Also the manner of reaching grade by the use of
a step stool is not in accordance with the prevailing
requirements of the building code and is not safe and
exposes the Association to potential liability. The step
stool also intrudes into the common elements of the
Association, which is not permitted without a vote of
the members as provided in the master deed.
The Pointe denied plaintiffs' request for retroactive approval and ordered
the removal of the gate and the restoration of the deck to its original condition .
Plaintiffs' appeal of the decision to The Pointe's Judiciary Committee was
dismissed.
In August 2017, after removing the gate and steps, plaintiffs sent a letter
to The Pointe requesting written approval, pursuant to § 9.2(b) of the master
deed, to alter their deck by installing a gate and steps. Plaintiffs relied upon
Master Deed I. In denying the request, The Pointe's counsel informed plaintiffs
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again that their reliance on the unrecorded Master Deed I was misplaced. The
letter stated "The [Pointe] can only enforce the requirements/restrictions set
forth in the recorded Master Deed and ByLaws." The letter also noted the
February 2008 court ruling, establishing that The Pointe did not have the
authority to approve the expansion of a deck or the installation of steps from a
deck onto the common elements without the unanimous approval of its
members.
Plaintiffs subsequently instituted suit, seeking a declaratory judgment that
(1) Master Deed II be deemed null and void; and (2) Master Deed I was the
effective master deed. The complaint also sought to enjoin The Pointe from
interfering with plaintiffs' use of the common elements as conveyed to them in
Master Deed I.
After plaintiffs moved for summary judgment, defendants filed a cross -
motion for judgment. Plaintiffs contended that the purchase of their unit from
Carella was governed under the Planned Real Estate Development Full
Disclosure Act, N.J.S.A. 45:22A-21 to -56 (PREDFDA or the Act). The
administrative regulations under the Act required the POS to include a copy of
the master deed. N.J.A.C. 5:26-4.2(a)(11). Because Master Deed I was attached
to the POS, plaintiffs asserted they were entitled to rely on it.
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The court rejected this argument in its February 8, 2019 oral decision. It
found that PREDFDA was intended to apply only to direct transactions between
a developer and a purchaser. The Act did not apply to the private transaction
between Carella and plaintiffs. The court explained that PREDFDA was
intended to protect initial purchasers of condominiums. Because plaintiffs
purchased the unit from Carella, PREDFDA and its administrative regulations
were not applicable to them.
The court remarked that both plaintiffs were attorneys – William had
practiced law for forty years, Jill for twenty-eight years, with a portion of her
practice being real estate law. It noted that plaintiffs conceded that, at the time
of the sale, no one represented that steps could or would be built off the deck
prior to closing. To the contrary, plaintiffs admitted that whether steps could be
added to the deck did not impact their decision to purchase the unit. And when
plaintiffs walked through the property prior to the purchase, the lack of steps
was not an issue. 1
The court found that the condominium deed, survey certification, and
mortgaged property release were given to plaintiffs prior to or at the time of
1
William testified during his deposition that he and Jill did not even discuss the
addition of steps for several years after the closing.
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closing. These documents all referenced a master deed dated August 1, 2000
and recorded September 13, 2000.
In addition, Master Deed I provided notice that it was not the controlling
master deed. The court noted Master Deed I had a number of blank spaces and
unfinished attachments. It contained disclaimers stating it was not recorded and
was not intended to be binding and cautioned that "the developer has retained
the right to amend the master deed for various purposes set forth in the master
deed." Therefore, the court found plaintiffs had record notice of Master Deed II
and were on notice that Master Deed I could be changed.
The court's order of February 11, 2019 denied plaintiffs' motion for
summary judgment and granted defendant's cross-motion for summary
judgment.
On appeal, plaintiffs raise the same issues as they did before the trial court.
They assert that Master Deed I provided that their condominium unit could have
steps from the deck to the ground. Therefore, The Pointe should have granted
their application to construct steps. As a result, the court erred in denying their
motion for summary judgment and granting judgment to defendant.
In our de novo review of an order granting summary judgment, we apply
the same standard as the trial court. Green v. Monmouth Univ., 237 N.J. 516,
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529 (2019). Summary judgment must be granted "if the pleadings, depositions,
answers to interrogatories and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact challenged and
that the moving party is entitled to a judgment or order as a matter of law." R.
4:46-2(c). To determine whether there was a genuine issue of fact, we "consider
whether the competent evidential materials presented, when viewed in the light
most favorable to the non-moving party in consideration of the applicable
evidentiary standard, are sufficient to permit a rational factfinder to resolve the
alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 523 (1995).
We are satisfied the court properly determined that PREDFDA did not
apply to plaintiffs' purchase of the unit from Carella. The statute specifically
excludes private transactions from the Act's requirements. N.J.S.A. 45:22A-
25(a)(1) states: "Unless the method of disposition is adopted for purposes of
evasion, the provision of this act shall not apply to offers or dispositions: . . .
[b]y an owner for his [or her] own account in a single or isolated transaction;
. . . ." Plaintiffs bought their unit from a private owner – Carella – in a single
transaction after Carella purchased the unit from the developer. Therefore,
PREDFDA did not control plaintiffs' transaction.
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Master Deed II was the only deed recorded with the clerk's office.
Therefore, it is the controlling master deed for the condominium complex. See
Shadow Lake Vill. Condo. Ass'n, Inc. v. Zampella, 238 N.J. Super. 132, 139
(App. Div. 1990) (citing Courts at Beachgate v. Bird, 226 N.J. Super. 631, 639
(Ch. Div. 1988) (holding that "[t]he provisions of a master deed are of
paramount importance when defining the rights and obligations of condominium
unit owners.")). Master Deed II did not contain the right to add steps to a unit
and it deemed any property beyond a unit's deck to be a common element.
We are not persuaded by plaintiffs' argument that they were unaware of
Master Deed II. They were provided documents at or before the closing
referring to a master deed that was recorded on September 13, 2000. Master
Deed I was not dated or recorded. Because Master Deed II was in their chain of
title, plaintiffs had both constructive and record notice of it. See Olson v.
Jantausch, 44 N.J. Super. 380, 388 (App. Div. 1957) (holding that constructive
notice exists when restrictive covenants are in a buyer's chain of title).
Furthermore, plaintiffs were aware of the prior litigation when several unit
owners sought to expand their decks by five feet. William was the President of
The Pointe during that time. He disseminated the judicial decision, advising
that The Pointe did not intend to appeal. The Resolution in contention referred
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to the master deed recorded in the Essex County Clerk's office on September 9,
2000. Again, Master Deed II was the only recorded deed.
Plaintiffs do not assert that The Pointe did not have the authority to deny
their request to modify the deck. In fact, The Pointe had that authority under
either Master Deed. Instead, they contend The Pointe's denial was unreasonable
because of its reliance on the wrong master deed. For the reasons already stated,
it is plaintiffs who mistakenly relied on the draft unrecorded Master Deed I in
supporting their modification application.
Furthermore, as this court has previously stated, if a condominium
association's actions are "authorized by statute or by [its own] bylaws or master
deed," and its actions are not "fraudulent, self-dealing or unconscionable," we
will not interfere. Comm. for a Better Twin Rivers v. Twin Rivers Homeowners'
Ass'n, 192 N.J. 344, 369 (2007) (quoting Owners of the Manor Homes of
Whittingham v. Whittingham Homeowners Ass'n, Inc., 367 N.J. Super. 314, 322
(App. Div. 2004)).
In denying plaintiffs' application, The Pointe relied on Master Deed II,
which did not permit an owner to add steps to the deck of its unit and which
deemed any property beyond a unit's deck to be a common element. Plaintiffs
do not allege The Pointe acted fraudulently, with self-dealing or unconscionably
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in denying their application to modify the deck. Therefore, plaintiffs have not
demonstrated The Pointe acted unreasonably in denying their application.
Affirmed.
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