This unique motion filed by defendant-third party plaintiff, M.C. Developers Inc., (hereafter Developers), seeks an order of this court authorizing the removal of an improvement from real estate titled in the name of the third-party defendant, Chesapeake Shore Enterprises, Inc., (hereafter Chesapeake). Developers admit this improvement was constructed in error.
On April 17, 1989, plaintiffs, Lance and Debra Peck, were shown two parcels of undeveloped realty in the City of Millville by an agent of Developers. The agent represented that the two parcels were available for sale and were designated as Lot 22
and Lot 24 on the City of Millville Tax Map. A written contract of sale ultimately executed by the Pecks provided that Developers were to construct a "raised ranch" styled home on each parcel.
On October 18, 1989, at the real estate closing, purportedly respecting Lot 22, Developers presented a partially completed deed and a separate proposed metes and bounds description. It represented to the purchasers that the final clerical work, incorporating the metes and bounds description into the deed, would be completed prior to the recordation of the deed. The deed which was ultimately clerically completed and recorded contained a metes and bounds description to Lot 26 and not Lot 22 as was required by the original contract of sale.*fn1
Subsequent to the real estate closing, Developers constructed the "raised ranch" model home, previously selected by plaintiffs, upon Lot 26, which lot, however, had been previously conveyed to Chesapeake. Chesapeake contends that it first learned of this erroneous construction on Lot 26 when it received a municipal tax bill reflecting tax liability for both land and improvements. An immediate inquiry by Chesapeake revealed Developers' construction error.
Plaintiffs immediately filed a complaint seeking compensatory damages due to breach of contract and negligence, punitive damages due to common law fraud, and treble damages based upon allegations of consumer fraud. They named Developers and Chicago Title Company, who insured the plaintiffs' titles as defendants. Chesapeake was ultimately joined as a third-party defendant.
Developers, in an effort to mitigate its' ultimate responsibility for this construction error, now seek an order permitting it to remove the "raised ranch" model home from Lot 26 for placement on another unsold lot within the developed tract
which is still titled in Developers' name. The motion is contested by Chesapeake who contends there is no judicial precedent in New Jersey specifically addressing the issue of judicially ordered removal of improvements from real estate owned by an innocent land owner. Chesapeake relies upon Friel v. Turk, 95 N.J. Eq. 425, 123 A. 610 (Ch.1924) in support of its opposition.
In Friel, the defendant conveyed Lot 83 to the plaintiff who thereafter erected a building on Lot 84 which was owned by a third-party, an absentee owner who learned of the erroneous construction twenty months after construction was completed. Plaintiff sought a court order compelling the absentee owner of Lot 84 to convey the lot to him. The court designated the plaintiff a "trespasser" who acted with "culpable negligence" and concluded that "equity will not grant the relief now sought, whose condition is attributable solely to his failure to exercise that diligence which may be fully expected from a reasonable person." Id. at 426, 123 A. 610.
While the facts surrounding Friel are similar to the present case, the relief sought by the moving party in each proceeding is quite dissimilar. In Friel, plaintiff sought compulsion of the sale of land from an innocent property owner. Here, the moving party seeks the removal of improvements wrongly constructed from the property of the innocent ...