On certification to the Superior Court, Appellate Division, whose opinion is reported at 235 N.J. Super. 194 (1989).
For affirmance in part; reversal in part; and reinstatement -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by O'Hern, J.
[122 NJ Page 254] This appeal concerns the constitutionality of the Cooperative Recording Act, a legislative determination to phase in a titleregistration system for recording and taxing the creation and transfer of ownership in cooperative housing units. N.J.S.A. 46:8D-1 to -18. The Act applies only to cooperatives created after the effective date of the 1988 legislation. Previously formed units are exempt. In addition to enacting usual recording provisions, the Legislature amended the definition of
"deed" under N.J.S.A. 46:15-5 to include proprietary leases of cooperative units, thereby making the realty transfer tax applicable to transfers of ownership of cooperatives. The Appellate Division upheld the recording requirements but invalidated the transfer tax. We uphold both.
Cooperative apartment ownership is a familiar type of housing ownership. For convenience, and without endorsing any of its particulars, we adopt the description given in American Jurisprudence. 15A Am.Jur. 2d Condominiums and Cooperative Apartments §§ 1, 4, 62, and 71 (1976). The formation of a cooperative commonly begins with a cooperative sponsor who owns a building or is planning to buy or construct a building. The sponsor creates a cooperative entity. That cooperative entity is usually, though not always, organized in the form of a corporation. The cooperative corporation purchases the property from the sponsor and then issues stock with a "total par value equal to the purchase price." 15A Am.Jur. 2d § 62 at 893. The stock is "allocated among the various apartments according to their estimated relative value." Ibid. Ordinarily, individual housing units are acquired by purchasing shares in the cooperative corporation. Stock purchasers are then given an exclusive right, usually in the form of a proprietary lease, to occupy one of the cooperative apartments. While the cooperative corporation is the titleholder to the property, the stock purchasers become "tenant-shareholders." The tenant-shareholders do not pay individual tax bills to the municipality, nor do they make individual mortgage payments. Rather, they pay to the cooperative corporation a monthly "carrying" charge, which represents their proportional share of the mortgage payment, common expenses, and tax payments assessed against the cooperative as a whole. In this way, tenant-shareholders are dependent on each other; if one fails to make a payment, the others must make up the difference.
Another form of housing ownership that is often compared to the cooperative is the condominium. Conceptually, the condominium-unit owner holds title to the individual condominium unit and has an undivided interest in the common facilities of the condominium building. As titleholders, condominium-unit owners are responsible for the mortgage payments and taxes on their own unit. Condominium-unit owners are not as dependent on each other as are cooperative tenant-shareholders.
Notwithstanding the differences in form, the Legislature has chosen to treat cooperative-housing interests as it treats other forms of real estate ownership in many circumstances. For example, cooperative-housing units are subject to the Retirement Community Full Disclosure Act. N.J.S.A. 45:22A-2. Under the Senior Citizens and Disabled Protected Tenancy Act, tenants in units converting to cooperatives have the same protections as tenants in units converting to condominiums or other forms of ownership. N.J.S.A. 2A:18-61.23.
In 1988, the Legislature determined to treat the creation and transfer of an interest in cooperative-housing units in much the same manner as any other interest in real estate -- more particularly, as it treats the creation and transfer of interests in condominium property. In the Cooperative Recording Act, the Legislature modified and extended the usual provisions of our recording-act system to cover cooperatives. Previously, the creation and transfer of the cooperative units did not have to be recorded in a place of public record.*fn1
To create a housing cooperative now, the cooperative sponsor must record in the appropriate county recording office a master
declaration and a master register. N.J.S.A. 46:8D-5. The master declaration must contain a legal description of the property including scaled architectural plans; the corporate bylaws; a statement regarding the financing of the building; a schedule of the owners' shares of common expenses and common surplus; information on any restrictions or limitations on the use, transfer, or leasing of any unit; and information on voting procedures and on procedures to amend the master declaration. N.J.S.A. 46:8D-6. The master register must include an identification of each unit, the percent of common ownership representing each owner's proportionate undivided interest in the common elements, and the name and address of the present owner and occupant of each unit. N.J.S.A. 46:8D-7. All transfers of cooperative interests must now be recorded in order to be valid. N.J.S.A. 46:8D-11.
Drew Associates (Drew) is a limited partnership that, at the time of the appeal, was in the process of converting a multi-unit apartment building into a cooperative. Drew challenges the constitutionality of the Act on the basis that it is "so arbitrary, irrational and vague" that it violates Drew's due-process rights. Drew also contends that by exempting cooperative units created before the effective date of the legislation, the Act infringes on its equal-protection rights. Finally, Drew argues that the Act impermissibly imposes a double tax on cooperatives and that it creates an illegal restraint on alienation.
In ruling on the State's cross-motion for summary judgment, the Chancery Division upheld the constitutionality of the Act in all respects. The court found that the Act did not violate either the equal-protection rights or the due-process rights of the plaintiff. It held that the Act did not impose a double tax and that it did not create an unreasonable restraint on alienation.
While upholding the Act in all other respects, the Appellate Division found that the Act violated Drew's equal-protection rights in its application of the realty transfer tax. 235 N.J. Super. 194, 561 A.2d 1177 (1989). Unlike the Chancery Division,
the Appellate Division found no rational basis for imposing the tax only on transfers of cooperatives created after the effective date of the Act and not on transfers of cooperatives created before that date. The court ordered a remand to determine what portion of the tax represented administrative costs and what portion represented new revenue.