On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County.
King, Baime and Keefe. The opinion of the court was delivered by Keefe, J.A.D.
The issue presented on appeal requires an interpretation of the age exemption clause contained in the master deed of an adult condominium community. Plaintiff, Shadow Lake Village Condominium Association, Inc. (Village), filed a complaint in the Chancery Division against defendants, Phillip Zampella and Pamela King, seeking injunctive relief in an effort to enforce the age restriction covenant of the master deed governing plaintiff's adult community. Plaintiff alleged that King and her 12 year old child resided in the Village in violation of said covenant. The matter was tried to a judge without a jury resulting in a judgment dismissing the complaint. The Village now appeals from that decision and we affirm.
Plaintiff is an adult community located in Middletown. The development is comprised of 952 residential units housing nearly 2000 residents and is situated on 75 to 100 acres. Surrounded by a fence and a large lake, the community has only one means of ingress and egress, a main entrance guarded by a security force.
The master deed was recorded in the Monmouth County Clerk's Office and includes a restrictive covenant governing the age of permanent residents. The covenant in pertinent part states:
That in order to preserve the character of this Condominium as an adult residential community, anything to the contrary herein notwithstanding, occupancy of all units shall be restricted as follows.
Permanent residents must be at least 52 years of age, except that the spouse or an immediate member of the family other than a child of said permanent resident, or a live in domestic, companion or nurse, may be a permanent
resident regardless of his or her age. A maximum of one child age 18 or older may also reside as a permanent resident with his or her parent or parents.
The foregoing occupancy restrictions shall not be construed to prohibit the occupants of any of the family units from entertaining guests, of any age, in their units, including temporary residency not to exceed three months. Full time occupancy in any event, however, shall be limited to three occupants. Any person or persons who may obtain legal or equitable title to a dwelling unit in this Condominium by way of purchase, gift, devise, testamentary disposition or by operation of law, or by any other means, and who does not fall within the category of permissible occupants as set forth above shall not be permitted to occupy any such unit. [Emphasis added.]
In early August, 1987 King began residing in the Village in a unit owned by Zampella. Zampella had acquired title to the condominium by a deed from King. Appended to the deed is a memorandum acknowledging the protective age covenant. Both King and Zampella are divorced.
Zampella is 56 years of age; King is 46 years old. While defendants are not married, they have a "close relationship." On occasion King has referred to Zampella as her husband.
King's daughter is 12 years of age and, under the protective age covenant, is restricted from residing in the Village. After residents complained about an underage child residing in the Village, King was informed by letter and telephone that her daughter was prohibited from living there. King responded by explaining that the child was not residing in her unit but was only a frequent visitor. Plaintiff arranged for surveillance of the condominium unit with the intention of ascertaining whether King's daughter resided there as a permanent resident. The surveillance was conducted by plaintiff's security force under the supervision of the manager of the Village. The surveillance was done by Barry Wilson, a retired policeman, who was plaintiff's head of security. Based upon Wilson's report, the manager of the Village concluded that King's child was living there on a permanent basis.
The manager then arranged for the surveillance of Zampella. That surveillance was also conducted by Wilson. After reviewing Wilson's reports, the manager concluded that Zampella was not residing in the ...