On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, C-236-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 13, 2007
Before Judges S.L. Reisner and Gilroy.
Plaintiffs John and Irene Hopka appeal from a January 11, 2007 trial court order granting summary judgment dismissing their claim for specific performance of a contract to purchase property owned by defendant Jean Bergen, and a February 16, 2007 order directing plaintiffs to discharge their lis pendens and denying their motion for a stay. We affirm both orders.*fn1
The following facts are drawn from those set forth and admitted in the parties' respective statements of material facts filed on the summary judgment motion. Defendant, then an 81-year old woman, owned a piece of land in Holgate. In 2004, plaintiffs made an unsolicited request to view the property. In response to that unsolicited request, defendant's daughter showed them the property. During that visit, she told plaintiffs that "we own to the water," in other words, that the property extended to the bay behind it. Plaintiffs never spoke with defendant.
After the parties retained counsel to negotiate a sale, a contract was drawn up providing for a sale price of $700,000. On October 7, 2004, plaintiffs' attorney sent defendant's attorney a letter asking that the contract "include a representation that . . . the seller has riparian rights. . . . The seller advised the purchaser that she had 'water rights.' I am making the assumption that those are riparian rights. If this is incorrect we, obviously, need to review this issue. . . ."
In response, defendant's attorney advised plaintiffs' counsel by faxed letter dated October 7, 2004, that defendant "would convey all rights she has to the property but would make no representations as to riparian rights." Plaintiffs' counsel replied by letter that "their investigation disclosed that there did not appear to be any riparian rights to the property, but that the sellers were prepared to go forward with the transaction." The contract was finalized on October 19, 2004.
A dispute arose when plaintiffs' contended that defendant's property extended beyond the boundaries described in her deed, contended that the State was asserting a tidelands claim to that 600 square foot section of land adjacent to the water behind the property, and demanded that defendant clear title to that section so that she could convey to them clear title to waterfront land. Plaintiffs claimed that the tax map, referenced in the contract of sale, described defendant's land as including the disputed strip. Plaintiffs theorized that the additional land had been created by accretion, i.e., the natural deposit of sand by the water, and therefore it belonged to defendant. See Panetta v. Equity One, Inc., 190 N.J. 307, 321 n.3 (2007) (describing "alluvion" or deposits dropped by running water, which result in an addition to the owner's land).
According to defendant's expert, this theory was not likely to be upheld in court and in any event it would likely cost hundreds of thousands of dollars to vindicate such a claim.
It is undisputed that defendant's deed to the property "makes no mention of waterfront property, riparian rights, tidal rights or claims." Plaintiffs admitted that "there exists no tidelands claim on the property identified in Defendant's deed." However, plaintiffs also asserted that "the property which contained a tidelands claim was not adjacent to, but part thereof." In other words, plaintiffs claimed that defendant's property included riparian land not described in her deed, that the State was asserting a tidelands claim against that riparian land, and that plaintiff should be required to clear the State's tidelands claim from that land even though it was not included in her deed. In a letter from plaintiffs' counsel dated June 28, 2005, plaintiffs contended that the seller led them to believe that they were buying "waterfront" property and that was what they expected to receive. On August 8, 2005, defendant tendered a return of plaintiffs' deposit, but plaintiffs refused to accept it. Plaintiffs then filed suit for specific performance, seeking to require defendant to pay for the process of obtaining clear title to the property.
In an oral opinion placed on the record on December 15, 2006, Judge Grasso concluded that both parties initially believed that defendant owned all the land up to the water line, i.e., that her parcel was waterfront property. Relying on Beachcomber Coins, Inc. v. Boskett, 166 N.J. Super. 442 (App. Div. 1979), the judge concluded that the doctrine of mutual mistake applied to this situation. Based on the undisputed evidence from defendant's expert that it would cost "in the range of three hundred to five hundred thousand dollars" to clear the title to the disputed strip of land, the judge concluded that ordering specific performance "would have the effect of eviscerating the bargain reached ...