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NOT FOR PUBLICATION WITHOUT THE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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