On appeal from Superior Court of New Jersey, Chancery Division, Union County.
Before: Judges Petrella and Skillman.
The opinion of the court was delivered by: Skillman, J.A.D.
The individual parties to this action, all members of the Kassover family, own thirty-eight commercial properties in New York and New Jersey as tenants in common. In 1976 the parties and in some instances their predecessors in interest entered into a non-partition agreement under which they waived any right to seek partition of the properties for a period of twenty-one years. Serious disagreements subsequently developed among the parties concerning management of the properties. One disagreement relating to a lease to defendant Savemart, Inc. resulted in the filing of this action in 1987. The case was tried in April 1990, which resulted in the entry of a judgment upholding the validity of the lease to Savemart. The judgment also provided for the appointment of a "Special Fiscal Agent" to manage the properties until the expiration of the non-partition agreement.
Plaintiff-appellant Philip Kassover (hereinafter referred to as Philip) appealed the judgment to this court. With one modification which is not material to the present appeal, we affirmed in an unreported opinion. Kassover v. Garden City Co., A-4-90T5 (decided June 11, 1991). Our opinion stated in part:
An examination of the trial Judge's shows that his action was predicated on the fact that the non-partition agreement prevents recourse to the remedies normally available when tenants-in- common are intractably deadlocked and requires that equity fashion an appropriate remedy. We entertain no doubt as to the correctness and Justice of his decision.
The inability of the parties to carry out the cooperative obligations inherent in the joint tenancy management of this property, irrespective of fraud or misconduct, is sufficient to warrant the intervention of equity.
[W]e note that if plaintiff finds the use of the so- called fiscal agent unacceptable, he need only enter into some other viable arrangement to end the deadlock. Apparently the others are willing to enter into a management agreement which would obviate the need for court supervision.
The parties have never been able to reach agreement concerning the terms of such a management agreement.
Subsequent to our decision, the court appointed a certified public accountant to assist the Special Fiscal Agent and a "management committee," consisting of two of the tenants in common and the Special Fiscal Agent.
Upon the expiration of the non-partition agreement in 1997, intervenor-respondent Paula Rose Kassover (hereinafter referred to as Paula) filed a motion which among other things sought an order continuing the appointment of the Special Fiscal Agent. Philip and Morton Kassover opposed the motion. Philip's opposing certification stated in part:
4. As of July 22, 1997 the non-partition agreement will expire. Thus, at that point, there will be no need for the intervention of a court of equity; any party who desires to "break a deadlock" can do so. I am informed that there will then be an adequate remedy at law because partition will then be available to those who wish to withdraw.
5. I recognize that many of the tenants in common will not want to seek partition; I certainly do not. But as things will then stand, the parties will have to learn to get along, or, if they cannot, those who wish to can seek partition.
7. I do not believe that when it issued the Order, it was the Court's intention that some tenants-in-common abandon ...