On cross-motions for summary judgment, I am presented with the threshold issue of whether the members of a condominium association have the right, power and authority to amend the condominium by-laws so as to delete plaintiff developer's right of first refusal to buy a condominium unit upon resale. Both the By-laws under contest herein and the Condominium Act of New Jersey (N.J.S.A. 46:8B-1 et seq.) specifically contemplate such a result.
Before articulating the findings of fact and legal reasoning which support this conclusion, it is necessary to consider the standards which govern summary judgment motions. In Judson v. Peoples Bank and Trust Co. of Westfield , 17 N.J. 67 (1954), the court (at 73) established the scope of the summary judgment procedure, holding in part that "the role of the judge in that procedure is to determine whether there is a genuine issue as to material fact, but not to decide the issue if he finds it to exist." See, also, R. 4:46-2. In noting that the moving party must clearly sustain its burden "to exclude any reasonable doubt as to the existence of any genuine issue of material fact" or show that "palpably" no such issue exists, the court further held that "[a]ll inferences of doubt are drawn against the movant in favor of the opponent of the motion" and that the issues of credibility are to be reserved for the trier of fact. Id. at 74-75. Applying this standard to the present case, I find the following material facts not to be in issue.
Raymond Geftman is the developer and sponsor of the Seashore Club of Atlantic City (hereinafter, "developer"), a condominium regime located at 3300 Boardwalk, Atlantic City, New Jersey. Geftman brings this action as president of the Seashore Club.
The Seashore Club Condominium Association, Inc. (hereinafter, "association") is a nonprofit corporation which operates the condominium. By virtue of their ownership of individual units, every unit owner is automatically a member of the Seashore Club Condominium Association, defendant herein.
In accordance with the Condominium Act of New Jersey (N.J.S.A. 46:8B-1 et seq.), the developer filed the master deed and accompanying exhibits required to create a condominium regime with the county clerk. The by-laws were included among the exhibits duly filed with the master deed.
Paragraphs 15 and 17 of the master deed are relevant to this litigation and provide as follows:
15. SALE OR LEASE OR OTHER DISPOSITION OF UNITS:
Should the Unit owner (other than the Developer) wish to sell or lease his Unit, he shall, before accepting any offer to sell or lease his Unit, comply with the applicable provisions of the By-laws. Any attempt to sell or lease a Unit except as provided in the By-laws, shall be wholly null and void and shall offer no title or interest whatsoever upon the intended purchaser or lessee.
Paragraph 17 of the master deed provides in pertinent part:
17. METHOD OF AMENDMENT OF MASTER DEED:
This Master Deed may be amended at any regular or special meeting of the unit owners of this Condominium called or convened in accordance with the By-laws, by the affirmative vote of voting members casting not less than three-fourths (3/4 ths) of the total vote of the members of the Association.
There are no other provisions in the master deed which deal with the sale, lease or other disposition of a unit. Nowhere in the master deed is any reference made to the developer's right of first refusal. In order to locate any provisions dealing with the sale or lease of a unit or the developer's right of first refusal, one must follow the mandate contained ...