THE HISTORIC COTSWOLD CONDOMINIUM ASSOCIATION, INC. VS.COTSWOLD, LLC.(C-000106-15, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3424-15T3
THE HISTORIC COTSWOLD
CONDOMINIUM ASSOCIATION, INC.,
Plaintiff-Respondent,
v.
COTSWOLD, LLC,
Defendant-Appellant,
and
UNION CENTER NATIONAL BANK,
FRANCES P. DILLER and WILFRED
DILLER,
Defendants.
_____________________________
Argued September 20, 2017 – Decided October 17, 2017
Before Judges Fuentes, Koblitz and Suter
On appeal from Superior Court of New Jersey,
Chancery Division, Bergen County, Docket No.
C-000106-15.
Luke J. Kealy argued the cause for appellant
(Greenbaum, Rowe, Smith and Davis, LLP,
attorneys; John D. North, of counsel and on
the brief; Mr. Kealy, on the brief).
Sanford F. Young argued the cause for
respondent.
PER CURIAM
Defendant Cotswold, LLC (Cotswald) appeals from a February
11, 2016 order granting summary judgment to plaintiff The Historic
Cotswold Condominium Association, Inc. (Association) in its
dispute over the right to assign and control parking spaces at The
Historic Cotswold, A Condominium, a complex in the Borough of
Tenafly. We affirm substantially for the reasons set forth in the
sixteen-page written opinion of Judge Menelaos W. Toskos.
The procedures for establishing and governing a condominium
development are set forth in the New Jersey Condominium Act (the
Act). See Siddons v. Cook, 382 N.J. Super. 1, 6-7 (App. Div.
2005) (citing N.J.S.A. 46:8B-1 to -38). A condominium is
established by the recording of a master deed. N.J.S.A. 46:8B-8.
It is governed by an association, which acts through a board of
directors, whose composition is composed of members of the
condominium's sponsor or developer and individual unit owners in
accordance with the Act. N.J.S.A. 46:8B-12.
The Cotswold Condominium contains thirteen residential units
and nineteen parking spaces, six of which are indoor garage spaces
and thirteen of which are outdoor spaces. Under the condominium's
2005 master deed, the parking spaces are common elements, meaning
that they are available for the use of all unit owners. The master
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deed further provides that the parking spaces may be designated
as limited common elements, reserved for the benefit of a
particular unit owner, through the designation of the space in the
unit deed transferring ownership to the unit owner. Cotswold made
numerous such assignments in the course of selling the available
units. Several of the unit owners obtained one or two parking
spaces as a limited common element. Other unit owners did not
obtain a parking space.
While the master deed is silent as to who may designate a
parking space as a limited common element appurtenant to a
particular unit, the association's by-laws provide that the
Association's board may "establish and enforce Rules and
Regulations for parking by and the assignment of parking spaces
to Unit Owners, subject to the provisions of the Master Deed,
Certificate of Incorporation and these By-Laws[.]" Upon the sale
of the tenth of thirteen available units in May 2007, control of
the board statutorily passed to the Association, as unit owners
now held "at least seventy-five percent of the available units."
See N.J.S.A. 46:8B-12.1
Cotswold continued to assign parking spaces through a deed
subsequent to control of the board changing hands. Seven years
later, in 2014, after two further conveyances that included parking
spaces as limited common elements, the board sought to utilize its
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authority under the by-laws to regulate parking at the condominium
by charging rent for those spaces not used exclusively by any
unit. Three unsold units and eight unassigned parking spaces
remained. Months later, in January 2015, Cotswold deeded the
three remaining unsold units to itself, assigning the remaining
eight parking spaces as limited common elements to those three
units. The Association then filed an action to quiet title,
challenging the January 2015 conveyances made by Cotswold to
itself.
After the parties filed competing cross-motions for summary
judgment, agreeing to the lack of factual issues, Judge Toskos
granted summary judgment in favor of the Association. He concluded
that while Cotswold retained the right to sell unsold units
pursuant to the master deed, that right did not encompass the
right to assign and designate parking spaces as limited common
elements, because, pursuant to the by-laws, Cotswold retained no
interest in the condominium's common elements, which belong
proportionately and indivisibly to the unit owners. The
Association, comprised of unit owners, owned the condominium's
common elements including the parking spaces. The by-laws grant
the Association's board the power to assign and control the
condominium's parking spaces.
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Judge Toskos concluded that the governing documents,
consisting of the master deed and by-laws, read together, "vest
the [b]oard with authority to control the actions of the
[c]ondominium," including the power to "establish and enforce
[r]ules and [r]egulations for parking by and the assignment of
parking spaces to [u]nit [o]wners." The judge noted that because
the Association did not elect to utilize this authority until
2014, the only conveyances at issue were the January 2015
conveyances made by Cotswold to itself.
We review the trial court's decision de novo. Henry v. N.J.
Dep't of Human Servs., 204 N.J. 320 (2010) (citing Manalapan
Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995)).
In reviewing the trial court's granting of summary judgment, we
apply the same standard used by the trial judge. Ibid. We must
consider, when viewing the facts in a light most favorable to
Cotswold, "whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law." Liberty Surplus Ins.
Corp. v. Nowell Amoroso, P.A., 189 N.J. 436 (2007) (quoting Brill
v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)).
While the Association did not explicitly raise the issue of
Cotswold's self-dealing, the self-dealing nature of the
transactions is readily apparent. In conveying the unit deeds to
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itself with specific parking spaces listed as limited common
elements appurtenant to the unit, it is clear that Cotswold's sole
purpose in conveying the unit deeds to itself was to assert control
over the remaining unassigned parking spaces. As Judge Toskos
concluded based on a review of the master deed and by-laws, that
control appropriately rested with the Association, via the board,
once control of the board passed to the Association in 2007.
The parties represented that they tried but were unable to
resolve this issue through mediation. Given the likelihood of
further disagreements, we hope the parties will make every effort
in the future not to resort to the expense and delay inherent in
litigation.
Affirmed.
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