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Wynwood Condominium Association Inc. v. Twin Trees Development Co.

Decided: May 15, 1991.

WYNWOOD CONDOMINIUM ASSOCIATION, INC., PLAINTIFFS,
v.
TWIN TREES DEVELOPMENT CO., INC., BRUNSWICK INDUSTRIAL DEVELOPMENT CORP., ANTHONY HOMES, INC., DAVID C. SAVAGE, INDIVIDUALLY, ALEXANDER MOLNAR, INDIVIDUALLY, ANTHONY R. CRISCUOLO, INDIVIDUALLY, DAVID A. SALTMAN AND TOWNSHIP OF SOUTH BRUNSWICK, HOOVER TREATED WOOD PRODUCTS, INC., PLYGEM INDUSTRIES, INC., PLY-GEM MANUFACTURING CORPORATION, ARNOX CORPORATION, OSMOSE WOOD PRESERVING, INC., D/B/A OSMOSE WOOD PRESERVING DIVISION, TRIANGLE BUILDING SUPPLIES AND LUMBER CO., MIRON LUMBER COMPANY, DEE LUMBER COMPANY, H.M. STAUFFER AND SONS, INC., BUILDERS TRUST WARRANTY CORPORATION, RESIDENTIAL WARRANTY CORPORATION, JOHN DOE WARRANTY COMPANY, STATE OF NEW JERSEY, DEPARTMENT OF COMMUNITY AFFAIRS, DIVISION OF HOUSING AND DEVELOPMENT, BUREAU OF HOMEOWNERS PROTECTION, HOME OWNERS WARRANTY CORPORATION, AMERICAN WOOD PRESERVERS ASSOCIATION, NATIONAL FOREST PRODUCTS ASSOCIATION, UNDERWRITERS LABORATORIES, INC., CHEMICAL SPECIALTIES, INC., MINERAL RESEARCH AND DEVELOPMENT CORPORATION, BUILDERS TRUST WARRANTY CORPORATION, RESIDENTIAL WARRANTY CORPORATION, JOHN DOE SUBS (FICTITIOUS NAME REPRESENTING SUBCONTRACTORS WHO ENGAGED IN THE CONSTRUCTION OF CONDO) JOHN DOE CHEMICAL (FICTITIOUS NAME REPRESENTING MANUFACTURERS OR DISTRIBUTORS OF CHEMICALS OR CHEMICAL RELATED PRODUCTS UTILIZED IN TREATING WOOD FOR FIRE RETARDANCY), JOHN DOE MFGR (FICTITIOUS NAME REPRESENTING MANUFACTURERS OR DISTRIBUTORS OF CHEMICALLY TREATED WOOD PRODUCTS), JOHN DOE SUPPLIER (FICTITIOUS NAME REPRESENTING SUPPLIERS OF CHEMICALLY TREATED WOOD PRODUCTS), JOHN DOE ASSN (FICTITIOUS PERSON OR ENTITY/TRADE ASSOCIATION), JOHN DOE TESTER (FICTITIOUS NAME REPRESENTING TESTERS OF CHEMICALLY TREATED WOOD PRODUCTS AND THE CHEMICALS USED IN SUCH TREATMENT), JOHN DOE TRUSTEES (FICTITIOUS NAMES REPRESENTING MEMBERS OF THE BOARD OF TRUSTEES APPOINTED BY THE DEVELOPER), JOHN DOE ARCHITECTS DEFENDANTS (FICTITIOUS NAMES REPRESENTING ARCHITECTS WHO PERFORMED ARCHITECTURAL SERVICES FOR DEVELOPER), AND JOHN DOE X DEFENDANTS



Bachman, P.J. Ch.

Bachman

This matter originated in the Law Division. The Chancery Division aspects of this dispute were originally part of a complaint containing several completely unrelated causes of action. By order of a Law Division judge, those counts which he found to sound in Chancery were severed and transferred to this Division.*fn1

The overall facts underlying this dispute concern three parcels of land located in South Brunswick, New Jersey (Lots 96, 126.1 and 145.2). These lots were packaged into a condominium site plan through the filing of a master deed in June 1979. These lots had been owned by Brunswick Industrial Development ("BID") and Alexander Molnar. On September 17, 1982, Molnar sold Lot 126.1 to Twin Trees Development Corp., Inc. ("Twin Trees"). As part of this conveyance, a drainage easement

was given to Twin Trees with respect to Lot 145.2. Also on that day, BID was deeded sole title to Lot 145.2.

The problems in this case stem from BID's October 5, 1983 subdivision of Lot 145.2, into Lots 15.10, 15.02 and 15.01. On October 21, 1983, BID and Twin Trees then jointly filed a condominium master deed for the site. This master deed created the Wynwood Condominium Development ("Wynwood"). Title to these parcels, however, had not been transferred; Twin Trees and BID still held title to their respective lots. Interestingly, the master deed did contain a portion of what had originally been Lot 145.2. -- specifically, it contained Lots 15.10 and 15.02. Lot 15.01 had been omitted from the master deed. Fortunately, this lot does not appear to be at issue in this case.

On January 9, 1984, Lot 15.10 was deeded to Anthony Homes. On December 12, 1986, Lot 15.02 was deeded back to Alexander Molnar. Lot 15.02 was then deeded to Wynwood Condominium Association on June 30, 1988. The stated purpose of this June 1988 conveyance was to correct "mistakenly executed deeds" and, thereby, return this lot back to the condominium. Also of interest is the fact that Lot 15.02 does not contain any buildings or other structures of a permanent nature. This lot's use and purpose is that of a detention drainage basin for the condominium complex. At issue is the fact that the 1985 tax bill and subsequent notices of the tax sale for Lot 15.02 were sent to Alexander Molnar. Molnar did not pay these taxes,*fn2 and a tax sale certificate on the parcel was purchased by David Saltman on September 26, 1986. Saltman paid all subsequent taxes on this parcel. In his certification, in addition to conceding that a mistake had occurred regarding the transfer of Lot 15.02, Saltman states that he has offered to assign his certificate of sale to plaintiff. Plaintiff, however, has refused the offer.

The court is currently faced with two separate and distinct motions which the parties contend present it with the same

underlying questions of law. First, Saltman has moved for summary judgement allowing him to foreclose upon his tax sale certificates as, pursuant to N.J.S.A. 54:5-54, the two-year statutory redemption period has expired. The second motion before the court is one made by defendant Township of South Brunswick ("South Brunswick"). South Brunswick has made a motion to dismiss various counts (i.e., counts 25 and 29 through 34) in plaintiff's complaint, alleging negligence and nuisance causes of action against the township. It is plaintiff's contention that South Brunswick negligently transferred, through the tax sale, the detention drainage basin. Plaintiff claims that this parcel was intended for their benefit and that they have a drainage easement with regard to this parcel through various deed descriptions.

I.

Plaintiff's claims against Saltman and South Brunswick are quite clearly intertwined. From a transactional perspective, the principle question before the court is the validity of the tax sale certificate held by Saltman. In order to resolve this issue, the court must construe two different legislative schemes. Specifically, the court must determine the interrelationship of the statutes concerning the "Assessment and Collection of Taxes," N.J.S.A. 54:4-1 et seq., and the "Creation, Enforcement and Collection of Liens for Unpaid Taxes and Other Municipal Liens on Real Property," N.J.S.A. 54:5-1 et seq., with the statutes that govern "Condominiums," N.J.S.A. 46:8B-1 et seq. In short, the court must determine whether the tax sale notice provisions of N.J.S.A. 54:5-25 as to the record owner of a parcel -- in this case, notice to Molnar -- are proper in light of the fact that the Wynwood condominium project had been created and ...


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