On appeal from Superior Court of New Jersey, Chancery Division, Burlington County.
Michels, King and Dreier. The opinion of the Court was delivered by Dreier, J.A.D.
[193 NJSuper Page 496] Defendants appeal from a summary judgment entered in an action brought by plaintiff, a retirement village association, to
foreclose a lien arising from defendants' failure to pay monthly maintenance fees. Defendants failed to appear on the return date of the motion whereupon Judge Wood in the Chancery Division granted the same and ordered that the lien be satisfied by the sale of the subject premises. Defendants have appealed and Grace McCarthy, a resident at the premises and daughter of Anna and the late Daniel McCarthy, filed a brief and argued pro se.
We note that, technically, this appeal is interlocutory, since the summary judgment order made no reference to defendants' counterclaim. The substance of the counterclaim, however, does not appear to be directed against plaintiff but rather at the builder and, since Judge Wood's disposition of plaintiff's cause of action and defenses raised thereto is severable, we will treat the notice of appeal as if it were a motion for leave to appeal and grant the same nunc pro tunc.
On August 28, 1980 Anna and Daniel McCarthy and their daughter Grace signed a contract to purchase a residence in Leisuretowne, a retirement village in Vincentown, New Jersey. The agreement called for delivery of marketable title, free of liens and encumbrances "except the covenants, conditions and restrictions set forth in the Declaration of Restrictive and Protective Covenants, the By-Laws of Leisuretowne Association, Inc. and to zoning and other restrictions of record, if any, including utility and drainage easement." Paragraph nine of the same agreement was captioned "Subscription to Membership in Leisuretowne Association, Inc.," and the buyer by that agreement subscribed to and accepted membership in plaintiff's associations "subject to the By-laws of the Association, receipt of a copy of which is hereby acknowledged." On the same date, Grace McCarthy also signed a "receipt of public offering statement and financial statements," which, in bold print, acknowledged that she had received a certified copy of the declaration of restrictive and protective covenants, as well as a
copy of the by-laws, rules and regulations of Leisuretowne Association.
Paragraph twenty-two of these rules and regulations specified that membership in the association was mandatory, and paragraph twenty-three specified a monthly required contribution to the common expenses of administering, maintaining and operating the association. Article four of the by-laws provided that the fees were to be considered "expenses chargeable to a member and his family unit [and] shall constitute a lien against [it] in favor of the Association [which] lien may be foreclosed in the manner provided for the foreclosure and sale of real estate mortgages."
Defendants first occupied the premises in October 1980, and four months later in February 1981 they ceased paying the $16 per month maintenance fee assessed by plaintiff. On September 28, 1981 plaintiff signed a notice of lien for the outstanding maintenance fees, amended the same on October 30, 1981 and on November 19, 1981 filed its complaint against defendants in the Burlington County Chancery Division seeking foreclosure of this lien.
Defendants filed an answer and counterclaim denying that they authorized plaintiff to represent them as residents in the community and claiming that plaintiff failed to notify them prior to their purchase about the association's powers and limitations involving defendants as residents of the community, including the provision that membership in the plaintiff association was mandatory. They do acknowledge that before they purchased the property they were informed about the existence of the association. They further claim that it was only after closing title that they received a booklet containing the applicable covenants. They further deny that the maintenance fee is payable because they are required to mow their own lawns, maintain the grounds, etc. Further they assert they utilize none of the common services such as the bus service, swimming pool, club house and the like. Defendants next allege that the
seller (not plaintiff) refused to honor the one-year warranty given at the time of defendants' purchase and then list several major deficiencies. Also defendants complain that plaintiff breached its own rules when it did not keep "neighborhood peace" at ...