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Rittenhouse Park Community Association v. Katznelson

Decided: November 17, 1987.

RITTENHOUSE PARK COMMUNITY ASSOCIATION, PLAINTIFF,
v.
MARVIN KATZNELSON, DEFENDANT-THIRD PARTY PLAINTIFF, V. VERNEDIA CRAWLEY, AND EDWARD A. KELLY, JR., CLERK, BURLINGTON COUNTY, THIRD PARTY DEFENDANTS



Haines, A.j.s.c.

Haines

[223 NJSuper Page 596] Marvin Katznelson, defendant, purchased a home in Rittenhouse Park, a community development having common areas maintained by plaintiff association. The association is supported by assessments imposed upon all properties in the development. A recorded declaration of covenants states that unpaid assessments are a lien upon the affected properties. Vernadia Crawley, who sold the home, did not pay her assessment, a circumstance to which Katznelson was not alerted by her or

by his title searches, although, as decided here, he should have been. The association later informed Katznelson of the unpaid assessment, which he refused to pay. It therefore brought this suit to foreclose the assessment lien. The suit has been consolidated with a small claims action commenced by Katznelson against the association. This opinion, responding to cross motions for summary judgment, grants the association's motion against Katznelson and his motion against Crawley. It denies his motion against the association.

The principal issues addressed by this opinion are the related ones of notice and lien. Did the recording of the declaration of covenants establish a lien for unpaid assessments on the Katznelson property and provide notice thereof to him? It is Katznelson's argument that no statute authorizes the recording of the declaration, that liens may not be created absent such authority, and that therefore, the declaration provided no notice to purchasers. I conclude that the law is to the contrary.

The Appellate Division stated the lien-notice rule succinctly in LeisureTowne Association v. McCarthy, 193 N.J. Super. 494 (App.Div.1984):

The covenants in question [requiring among other things payment of a $16 monthly maintenance fee] were recorded by Leisure Technology Corp., the seller, on May 10, 1977, and such recording gave defendants constructive notice of the same, rendering them fully enforceable against the property owner. Such covenants are valid and enforceable. [at 501; citations omitted]

Other New Jersey cases supporting the proposition are Caullett v. Stanley Stilwell & Sons, 67 N.J. Super. 111 (App.Div.1961); Olson v. Jantusch, 44 N.J. Super. 380, 388 (App.Div.1957). Petersen v. Beekmere, 117 N.J. Super. 155 (Ch.Div.1971) held that such covenants, when part of a neighborhood scheme, were enforceable as equitable servitudes.

The Peterson court relied in part on a New York case, Neponsit Property Owners Assn. v. Emigrant Industrial Sav. Bank, 278 N.Y. 248, 15 N.E. 2d 793 (Ct.App.1938). The Neponsit Association, by covenant, imposed an annual charge on lots for maintenance of roads, parks and beaches. The New York

court reasoned that the covenant touched and concerned the land and, since the covenant was in the chain of title, that the purchaser had notice. In Kell v. Bella Vista Village, 258 Ark. 757, 528 S.W. 2d 651 (1975), a case with facts closely analogous to the facts here, the court held that a covenant imposing assessments amounted to a continuing lien upon the property. It said: "We can see no reason why the language employed should not be considered as creating a continuing lien on the property for future assessments." Id., 258 Ark. at 760, 528 S.W. 2d 651.

Case law, therefore, clearly supports the validity and effect of the declaration here. It provided a lien and constructive notice thereof to Katznelson. See Olson, supra, 44 N.J. Super. at 388. It was his obligation to inquire or suffer the consequences.

Our statutes, contrary to Katznelson's argument, authorized the recording of the declaration. For example, N.J.S.A. 46:16-1 provides:

All deeds or instruments of the nature or description hereinafter in this section enumerated, of or affecting title to real estate in this state may be ...


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