The Rittenhouse Park Community Association is a nonprofit New Jersey corporation organized by Levitt and Sons, Inc. on April 10, 1967. Its purposes are to provide recreational facilities, maintenance and management services and architectural control for a community of 618 homes in Willingboro, New Jersey. A recorded declaration of covenants makes all homeowners members of the association automatically. Its operating expenses are met by levying assessments upon every property in the community, on a uniform basis as required by the declaration and the association's bylaws.
Until recently, the association provided lawn-mowing service to the community, a service which it discontinued for lack of funds. Its efforts to raise assessments through a required election process, were not successful; the necessary two-thirds vote of all members of the association could not be obtained. This suit, brought by 67 property owners against the association and its trustees, seeks an order mandating lawn-mowing services.
Defendants deny the existence of any obligation to provide such services and, alternatively, claim a right to discontinue even mandated services when they have no funds with which to pay for them. There is no authority in the association's organizing documents, applicable legislation or case law permitting such discontinuance. This opinion, following a trial of the issues, concludes that the association has an obligation to mow
the community's lawns. It holds, however, that it may discontinue the lawn service and/or other services in the absence of funds, notwithstanding the lack of any express authority for such action.
A. The Factual Findings and Their Consequences.
A number of Rittenhouse property owners testified at the trial. It is clear from this testimony that the representatives of Levitt and Sons made written and verbal representations to those who ultimately became purchasers of properties in Rittenhouse Park that their lawns would be mowed. Among other things the purchasers were given a "Home Warranty" booklet which provided in part that
Purchase of a home in Rittenhouse Park carries with it automatic membership in the Rittenhouse Park Community Association. The purpose of this community is . . . :
to relieve the homeowners of nuisance chores by providing for maintenance of all common areas including sidewalks, parking areas, front and side lawns, rear walkways.
The homes in Rittenhouse Park have been made as maintenance free as the varied designs allow. Maintenance by the Association covers front and side lawn grass cutting. . . .
Some witnesses were original purchasers from Levitt, most were not. All of them were attracted to Rittenhouse Park, in part, by representations made to them by Levitt representatives, by subsequent homeowners, or by real estate sales personnel. Many remembered receiving the "Home Warranty" booklet; it is apparent that it was given to all purchasers of the Rittenhouse Park homes. All of them were interested in avoiding home maintenance obligations and relied upon the understanding that lawn care would be provided when they purchased their properties. In fact, the association mowed lawns for a substantial number of years, thus recognizing the obligation and making its own representation to all who cared to see.
The association denies any lawn-care obligation, relying upon its certificate of incorporation, the declaration of covenants and its bylaws, none of which impose that requirement. The association's position, however, is not tenable for two reasons: (1) it is estopped to deny the obligation and (2) it has a fiduciary duty to provide lawn care.
Levitt's representatives promised lawn maintenance. They did so verbally and in written language that made the promise appear to be a part of the declaration of covenants. This is clear from the home warranty booklet which coupled lawn maintenance with other obligations in the declaration: "the maintenance of all common areas including sidewalks, parking areas, front and side lawns, rear walkways." Plaintiffs or their predecessors-in-title relied upon the promise when they purchased their Rittenhouse Park properties. Levitt, if a party to these proceedings, would be estopped to deny that lawn maintenance is included in the declaration of covenants. The association at the time the promise was made was the alter ego of Levitt and was therefore in no different position. It was and is estopped to deny the obligation. The rule is set forth in Summer Cottagers' Assoc. of Cape May v. Cape May, 19 N.J. 493 (1955):
The doing or forbearing to do an act induced by the conduct of another may work an estoppel to avoid wrong or injury ensuing from reasonable reliance upon such conduct. The repudiation of one's act done or position assumed is not permissible where that course would work injustice ...