Manhattan Trailer Park Homeowners Association, Inc. v. Manhattan Trailer Court and Trailer Sales, Inc. , 438 N.J. Super. 185 ( 2014 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6169-12T1
MANHATTAN TRAILER PARK
HOMEOWNERS ASSOCIATION, INC.,
VINCENT MOSCA AND NORMA CARRANZA,
Plaintiffs-Appellants, APPROVED FOR PUBLICATION
v. October 28, 2014
APPELLATE DIVISION
MANHATTAN TRAILER COURT
AND TRAILER SALES, INC.,
Defendant-Respondent,
and
MANHATTAN MTC ASSOCIATES, LLC,
Defendant.
_______________________________
Argued September 10, 2014 - Decided October 28, 2014
Before Judges Lihotz, Espinosa and
Rothstadt.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County, Docket
No. L-912-10.
Jeffrey M. Beides argued the cause for
appellants.
Russell J. Passamano argued the cause for
respondent (DeCotiis FitzPatrick & Cole, LLP
and Kaufman, Semeraro & Leibman, LLP,
attorneys; J. Sheldon Cohen, of counsel; Mr.
Passamano, on the brief).
The opinion of the court was delivered by
LIHOTZ, P.J.A.D.
This dispute centers on the parties' respective rights and
obligations under the Mobile Home Protection Act (the Act),
N.J.S.A. 46:8C-2 to -21. Plaintiff Manhattan Trailer Park
Homeowners Association, Inc. (the Association) is a nonprofit
corporation comprised of the homeowner community residing in the
North Bergen private residential leasehold community (the park
property) owned by defendant Manhattan Trailer Court and Trailer
Sales, Inc. The individual plaintiffs, Vincent Mosca and Norma
Carranza, each lease a lot on the park property and also served
as the president and assistant secretary of the Association,
respectively.
Plaintiffs' complaint sought to enjoin defendant from
selling the park property to a third-party, arguing the
Association exercised its statutory right of first refusal
provided under the Act. The trial judge disagreed and granted
defendant's motion for summary judgment, after concluding the
Association failed to pursue its right to purchase the park
property. The motion judge held the two-year delay in advancing
an agreement to purchase the park property "estopped [the
Association] from seeking remedies under the [Act]."
2 A-6169-12T1
On appeal, plaintiffs maintain the Act's provisions cannot
be waived, as a matter of law, making the application of
estoppel erroneous. Further, they assert defendant's failure to
comply with the Act's notice requirements precludes its ability
to transfer the park property. Alternatively, plaintiffs argue
summary judgment was improvidently granted in light of the
evidence that the Association exercised its right of first
refusal, which defendant allegedly ignored.
Following our review, we conclude the anti-waiver provision
of N.J.S.A. 46:8C-5 aims at unscrupulous landlords who attempt
to circumvent the Act's requirements when leasing mobile home
lots and does not preclude the court's ability to award
equitable relief. Under the circumstances presented, we also
hold defendant's failure to strictly comply with the Act's
notice provisions was ultimately cured by its subsequent conduct
that fully advanced the Act's spirit and purpose, giving the
Association an opportunity to buy the park property. Further,
despite this opportunity, the Association did not follow the
process outlined in the Act to complete the purchase. We conclude
the Association's failure equates to a refusal to exercise its
right to acquire the park property. Accordingly, we affirm the
summary judgment dismissal of plaintiffs' complaint.
3 A-6169-12T1
We recite the facts taken from the summary judgment record,
viewed in the light most favorable to plaintiffs, the non-moving
party. Davis v. Brickman Landscaping, Ltd., __ N.J. __, __
(2014). Defendant, a New Jersey corporation, was equally owned
by the estate of Julius Wassil (decedent), administered by Paul
Kaufman, and Lynchen Wassil, decedent's former wife. Defendant's
largest asset was the park property, which is comprised of 5.28
acres, divided into 130 mobile home pads, with each tenant
owning his or her respective trailer unit set on a pad.
In the course of administering decedent's estate, Kaufman
published notices in the New York Times and Bergen Record,
soliciting offers for the purchase and development of the park
property. Kaufman also mailed termination notices to the
individual park residents, advising them the property would no
longer be used as a mobile home park.
Prospective buyers transmitted offers to Kaufman, who
decided the proposal by Manhattan MTC Associates, LLC
(Manhattan) was best. Manhattan offered to buy the park
property for no less than $5.5 million, with the possibility of
additional sums paid, depending upon the number of lots approved
for an affordable housing subdivision. Manhattan's offer did
not contain a financing contingency. Kaufman negotiated
acceptable contract terms for Manhattan's acquisition of the
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park property, subject to Wassil's acceptance and approval by
the Probate Part.
Sometime after receiving Kaufman's notice to quit, park
residents formed an association, pursuant to the Act.1 See
N.J.S.A. 46:8C-15(a) (requiring mobile home owners to form an
association to exercise rights granted under the Act). By
letter dated December 11, 2008, Kaufman was advised of the
Association's existence. Shortly thereafter, he conveyed the
terms of Manhattan's offer by providing copies of correspondence
between Manhattan and himself to the identified Association
Board of Directors. The letter included the minimum sales price
and highlighted key terms in Manhattan's offer. Importantly,
Kaufman attached an unsigned proposed twenty-eight page purchase
and sale agreement, drawn in accordance with the terms of
Manhattan's offer. The proposed agreement left blank the
appropriate sections to insert the identity and signature of the
proposed purchaser, designated by the Association.
In a February 3, 2009 letter, Kaufman informed the
Association's counsel "the opportunity to purchase [the park
property was] on the same terms and conditions" as set forth in
1
The Association's certificate of incorporation states it
was formed on November 26, 2008. A Notice of Rights of the
Association, as provided by the Act, was recorded on December 9,
2008.
5 A-6169-12T1
Manhattan's offer. He also provided a report prepared in
anticipation of the sale. Later that month, Kaufman met with
members of the Association to discuss the terms of Manhattan's
proposed contract of sale and the Association's right to match
that offer. There, he informed the Association's representatives
any "offer with a financing contingency was not acceptable,"
because Manhattan's offer contained no such contingency, which
he considered "an essential term of the offer."
On February 20, 2009, the Association tendered its proposed
terms to purchase the park property. The letter sent by Real
Estate Advisory Development Services (READS), on behalf of the
Association, provided for the same down payment amount, minimum
purchase price, period of due diligence and other requirements
as Manhattan's offer. Most significant, however, the Association's
proposal required approval of the terms by the general
membership of the Association and a contingency provision to
secure and obtain $6 million to finance the acquisition, closing,
and renovation costs. The READS letter attached a statement
from ROC USA Capital, LLC that described its willingness to
consider financing the Association's purchase of the park property
if requisite underwriting requirements were met. The letter
closed with a provision stating: "Upon agreement of transaction
terms between Buyer and Seller, Seller's legal counsel will
6 A-6169-12T1
prepare a contract for review and revision, if required, by
Buyer and the subsequent execution thereof by Buyer and Seller."
On February 27, 2009, the Association's attorney sent a one
paragraph letter informing Kaufman:
[T]he homeowners of [the park] have voted to
exercise their right of first refusal to
purchase [the park property] as provided by
New Jersey law. . . . Please prepare the
contract of sale in accordance with the
provisions of the . . . Act and have it
delivered to our office immediately to
enable us to comply with the terms of the
statute.
Kaufman responded, explaining he already provided the form of
the contract, mirroring the terms offered by Manhattan, which he
attached to his January 12, 2009 letter sent to the
Association's Board of Directors. Kaufman further noted the
Association's suggested contractual alternative, which included
a financing provision, was "not acceptable." Kaufman explained
his prior efforts requesting details of any proposed financing
were not answered and expressed his concern for the ability of
the park owners to secure the necessary funds for the purchase.
Kaufman repeated his request for funding source details and
underwriting criteria to obtain the monies necessary to close.
The Association never responded to Kaufman's inquiry.
Before the Probate Part, Kaufman moved for approval of the
park property sale to Manhattan. Kaufman also sought an order
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"extinguishing the right of first refusal of the [Association]."
The Association was noticed and appeared before the Probate
judge as a party-in-interest. Following argument, the judge, in
a March 27, 2009 order, denied Kaufman's motion.
In May 2009, Kaufman secured Wassil's acceptance of the
Manhattan sale agreement and again moved for approval of the
sale. The judge concluded Kaufman was authorized to sell the
park property and, on behalf of the estate, ordered he could
execute the contract with Manhattan. However, the Probate Part
judge declined to "extinguish the Association's rights," and the
June 19, 2009 order stated: "This order does not adjudicate the
rights, if any, of the . . . Association."
Plaintiffs filed this complaint alleging violations of the
Act and the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20,
and sought to enforce the Association's right to purchase the
park property. Following discovery, defendant moved for summary
judgment and dismissal of the complaint. Plaintiffs filed a
cross-motion for partial summary judgment.
In a written opinion, following oral argument, the judge
concluded defendant violated the notice provisions set forth in
the Act. Nevertheless, she held summary judgment dismissal of
the Association's complaint was warranted. The judge found
defendant's violations of the notice provisions were "largely
8 A-6169-12T1
mooted by the fact that [plaintiffs] have behaved in such a way
as to have waived their right to a remedy. It is apparent from
the record that, in addition to waiver, the doctrines of laches
and estoppel foreclose any recovery by [p]laintiffs." Finally,
the judge dismissed the CFA count, noting plaintiffs failed to
demonstrate an ascertainable loss. This appeal ensued.
In our de novo review of a trial court's grant or denial of
a request for summary judgment, we employ the same standards
used by the motion judge under Rule 4:46-2(c). Brickman
Landscaping, supra, __ N.J. at __. First, we determine whether
the moving party has demonstrated there were no genuine disputes
as to material facts, and then we decide whether the motion
judge's application of the law was correct. Atl. Mut. Ins. Co.
v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App.
Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we
view the evidence in the light most favorable to the non-moving
party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,
523 (1995). Factual disputes that are merely "'immaterial or of
an insubstantial nature'" do not preclude the entry of summary
judgment. Ibid. (quoting Judson v. Peoples Bank & Trust Co.,
17 N.J. 67, 75 (1954)). Also, we accord no deference to the
motion judge's conclusions on issues of law. Estate of Hanges
v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382-83 (2010).
9 A-6169-12T1
Here, the parties each suggest the other failed to abide by
provisions of the Act. The Association contends defendant's
violation of the notice requirements precludes its transfer of
the park property to Manhattan and also argues the judge
erroneously concluded the rights granted under the Act were
subject to waiver and estoppel. Defendant acknowledges its
failure to strictly meet the Act's notice deadlines, but
maintains it cured all deficiencies; thereafter, the Association
failed to execute an agreement of sale and proceed to closing.
To provide context to these and other arguments presented,
[w]e begin by "read[ing] and examin[ing] the
text of the act and draw[ing] inferences
concerning the meaning from its composition
and structure." 2A Norman J. Singer & J.D.
Shambie Singer, Sutherland Statutory
Construction § 47:1 (7th ed. 2007). That
common sense canon of statutory construction
is reflected also in the legislative
directive codified at N.J.S.A. 1:1-1:
In the construction of the laws
and statutes of this state, both
civil and criminal, words and
phrases shall be read and construed
with their context, and shall,
unless inconsistent with the
manifest intent of the legislature
or unless another or different
meaning is expressly indicated, be
given their generally accepted
meaning, according to the approved
usage of the language.
[State v. Hupka, 203 N.J. 222, 231-232 (2010).]
10 A-6169-12T1
"[I]t is also incumbent that we 'harmonize the individual
sections and read the statute in the way that is most consistent
with the overall legislative intent.'" Comm. of Petitioners for
Repeal of Ordinance No. 522 (2013) of Borough of W. Wildwood v.
Frederick, 435 N.J. Super. 552, 565 (App. Div.) (quoting Fiore
v. Consol. Freightways, 140 N.J. 452, 466 (1995)), certif.
denied, __ N.J. __ (2014).
"In adopting the . . . Act, the Legislature intended to
protect the continuation of mobile home communities, and to
promote and encourage ownership and self-governance by the
residents of these communities." Paradise Park Homeowners
Ass'n, Inc. v. Riverdale Mgmt. Ass'n, 404 N.J. Super. 309, 314-
315 (App. Div. 2008). The Legislature expressly declared the
Act was "necessary for the welfare of the State and its
inhabitants" and mandated the Act's provisions "shall be
liberally construed to effectuate the purposes thereof."
N.J.S.A. 46:8C-7.2 See also Paradise Park, supra, 404 N.J.
Super. at 328.
2
Section 7 is part of the initial legislation adopted in
1977. See L. 1973, c. 153. The provisions at issue in this
matter governing the residential leasehold community's rights of
first refusal in the event of a sale of the park property,
N.J.S.A. 46:8C-11 and -12, were added by L. 1991, c. 483 in
1995.
11 A-6169-12T1
Under the Act, homeowners residing in a private residential
leasehold community are granted a right of first refusal to
acquire the "private residential leasehold community land" and
an owner must notify residents of either a decision to sell such
property, N.J.S.A. 46:8C-11, or if the owner receives a bona
fide offer to buy such property, N.J.S.A. 46:8C-12. More
specifically, a private residential leasehold community
landowner must notify the board of directors of a homeowners'
association, created under the Act, (1) of a decision to offer
the leasehold community land for sale, including material terms
such as "the price and the terms and conditions of sale[,]"
N.J.S.A. 46:8C-11(a); and (2) when a bona fide offer to purchase
such property is received, to notify the individual homeowners
or their association within ten business days of the offer's
receipt and, thereafter, to reveal its terms. N.J.S.A. 46:8C-
12(a) and (b).
Here, the operative provision of the Act is N.J.S.A. 46:8C-
12, as Kaufman received a bona fide offer to acquire the park
property from Manhattan. Manhattan's offer triggered the need
to send notice to the homeowners. Once the homeowners are
informed of a bona fide offer to purchase the park property, the
park property owner may not proceed with any third-party sale
while the homeowners take the following steps:
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b. Upon receipt of such notice the
board of directors or trustees of the
homeowners' association shall appoint from
among its members a committee, not exceeding
three persons, who may be assisted by such
legal and other professional and technical
counsel as the board may provide, to receive
from the landowner the price and terms of
the offer that has been made, and to
negotiate the terms upon which the landowner
would be willing to sell the private
residential leasehold community land to the
homeowners' association. . . .
c. Not later than the 30th day next
following its receipt of offering terms
pursuant to subsection b. of this section,
or following a period of extension agreed to
by the committee and the landowner, the
committee appointed pursuant to subsection
b. of this section shall report to the board
of directors or trustees of the homeowners'
association the price and other material
terms upon which the private residential
leasehold community landowner has agreed to
sell the private residential leasehold
community land to the association. In the
absence of any agreement between the
landowner and the committee, the landowner
shall be deemed to agree to such sale upon
the identical terms communicated by him to
the committee pursuant to [the received bona
fide offer]. The report of the committee
shall include such supporting data and
documentation as the committee and the
landowner have agreed upon to be so
submitted and authorized to be disclosed.
The price and other terms so agreed upon and
reported shall be binding upon the landowner
for 10 days next following the submission of
the committee's report, and if agreed to by
the board of directors or trustees of the
homeowners' association and consented to by
two-thirds of the homeowners in that private
residential leasehold community land shall
constitute a contract of sale.
13 A-6169-12T1
d. During the period provided for
negotiations and for consideration by the
association's board of directors or trustees
under subsection c. of this section the
landowner shall not conclude any agreement
for sale of the private residential
leasehold community land to any other party,
but may negotiate with any other party as to
terms and conditions of such an agreement,
contingent upon the failure or refusal of
the homeowners to exercise their prior right
of purchase under this act.
[N.J.S.A. 46:8C-12.]
Plaintiffs contend defendant's failure to comply with the
notice provisions in N.J.S.A. 46:8C-12(a) precludes transfer of
the park property to Manhattan because defendant could not file
an affidavit of compliance, as mandated by N.J.S.A. 46:8C-14.
This section of the Act provides:
In addition to other prerequisites for
recording, no deed evidencing transfer of
title to a private residential leasehold
community land shall be recorded in the
office of any county recording officer
unless, accompanying the application to
transfer the title is an affidavit annexed
thereto in which the owner of the private
residential leasehold community certifies:
. . . .
b. with reference to an offer
received by him for the purchase of the
land, or with reference to a counter-offer
which he has made or intends to make to such
an offer, he has complied with the
provisions of section [N.J.S.A. 46:8C-12] of
this act; or
14 A-6169-12T1
c. notwithstanding his compliance
with section 2 or 3 of this act, as
applicable, no contract has been executed
for the sale of the land between himself and
the homeowners' association; or
d. the provisions of sections 2 and 3
of this act are not applicable to a
particular sale or transfer of the land by
him, and compliance therewith is not
required; or
e. a particular sale or transfer of
the land is exempted from the provisions of
sections 2 through 5 of this act.
Responding to this argument, Kaufman does not challenge his
failure to relate receipt of a bona fide offer from Manhattan
within the ten-day window. However, he asserts the notice to
homeowners of the proposed terms of sale within a week of
learning the Association was created complies with the statute.
Further, Kaufman ceased efforts to conclude a sale to Manhattan
while the Association determined whether it would purchase the
park property.
Kaufman also notes he served the park residents with a
notice to quit on July 21, 2008, pursuant to N.J.S.A. 2A:18-
61.1(h), a copy of which is not in the record.3 As a practical
3
N.J.S.A. 2A:18-61.1(h) is part of the Anti-Eviction Act,
N.J.S.A. 2A:18-61.1 to -61.12, which provides, inter alia,
mobile home tenants may not be removed from park property unless
"[t]he owner seeks to retire permanently the residential
building or the mobile home park from residential use or use as
a mobile home park[.]"
15 A-6169-12T1
matter, however, he suggests he could not act for defendant or
offer the park property for sale because the estate did not own
a controlling interest in the corporation. In his certification
before the Probate Part, Kaufman acknowledged after Manhattan's
September 19, 2008 offer was identified as the best offer, he
had not secured Wassil's, the equal co-owner, consent to proceed
with a sale. Moreover, his authority to bind the estate to any
agreement required approval of the court.
In our view of this issue, we conclude a liberal
construction of the Act, which remains true to the legislative
objectives, see Paradise Park, supra, 404 N.J. Super. at 328,
requires a park owner to fully inform park homeowners not only
of an actual offer for sale, but the intention to sell. Despite
the uncertainty attached to Kaufman's endeavor when he placed
the initial newspaper ads, realistically, the facts strongly
suggest the eventuality of a sale of corporate assets (that is,
the park property) was more likely than not. The Act's spirit
required notice to homeowners of the prospect of such a sale,
even if the specific terms were not solidified. See N.J.S.A.
46:8C-11(a). More important, once Kaufman narrowed the
inquiries and acted to accept Manhattan's offer, the ten-day
notice requirement of N.J.S.A. 46:8C-12(a) was unmistakably
16 A-6169-12T1
triggered. Kaufman, however, did not inform the homeowners of
the proposed offer for several months.
Nevertheless, we cannot agree with plaintiffs that such a
lapse was fatal to defendant's pursuit of a third-party sale.
Indeed, N.J.S.A. 46:8C-14 alerts the county recording officer of
the statute's intended design, which allows mobile home park
residents the opportunity to obtain ownership and control of the
park property. The affidavit provision places the onus on the
seller of park property to verify compliance with the Act and
prevents recording a deed of transfer absent the affidavit of
compliance. That said, it is neither mandated nor contemplated
that a park property owner's failure to strictly comply with the
stated notice provisions in N.J.S.A. 46:8C-11 or 12 bars
alienation of the realty, absent the Association's assent. The
purpose of the affidavit requirement assures residents received
notice and the opportunity to purchase the park property prior
to its cessation as a mobile home park, nothing more.
Here, although Kaufman was not strictly compliant with the
notice requirements, the facts leave no doubt the Association
and its members suffered no prejudice by the delayed
notification. In essence, the homeowners were alerted the
property would cease to be used as a mobile home park and may be
sold. Thereafter, the Association was informed of the terms of
17 A-6169-12T1
Manhattan's proposed offer. Kaufman provided a form of
agreement to allow residents or their designee to buy the
property under the same terms offered by Manhattan. Thereafter,
Kaufman delayed further negotiations with Manhattan to give the
Association ample opportunity to fully exercise the right to
purchase the park property as granted under the Act.
Throughout this period, nothing suggests Kaufman took steps
to advance the Manhattan deal or attempted to deprive the
Association of its statutory right to match Manhattan's offer.
There is no evidence Kaufman purposely sought to side-step the
Act's requirements or adversely impact homeowners' rights.
Kaufman's good faith was evinced by his efforts to meet with the
Association's representative committee and candidly discuss his
view that the absence of a financing contingency was a material
term of Manhattan's purchase offer. Despite this knowledge, the
Association submitted a counteroffer, proposing to extend the
time to close because the offer was contingent on obtaining more
than 100% financing of the acquisition costs. Kaufman
immediately noted the terms materially differed from Manhattan's
offer and sought details of the financing, which were never
forthcoming. Even when Association counsel wrote to inform
Kaufman of the Association's proposed exercise of the right of
first refusal, Kaufman restated his request seeking details of
18 A-6169-12T1
how the Association was going to pay the $5.5 million. He also
reinforced his acceptance if the Association would match
Manhattan's terms. No response was forthcoming, so Kaufman
sought court approval of the Manhattan sale. The Probate Part
order, approving the Manhattan sale, was filed six months after
Kaufman provided the agreement to the Association.
We do not abide by plaintiffs' rigid interpretation of
N.J.S.A. 46:8C-12 and -14, which, if accepted, would impinge
upon the alienation rights of a private property owner, an issue
subject to constitutional limitations.4 See Borough of
Merchantville v. Malik & Son, LLC, 218 N.J. 556, 568 (2014)
(providing the taking of private property has always been
subject to constitutional limits) (citation and internal
quotation marks omitted). See also U.S. Const., amend. V; N.J.
Const., art. I, ¶ 20. Instead, we view the law as requiring a
park property owner to meet the Act's substantive provisions and
4
In addition to constitutional impediments, restraints on
free alienability are also scrutinized based on public policy
considerations. See Cape May Harbor Vill. & Yacht Club Ass'n v.
Sbraga, 421 N.J. Super. 56, 71 (App. Div. 2011) ("'It is firmly
established that the policy of the law is against the imposition
of restrictions upon the use and enjoyment of land and such
restrictions are to be strictly construed.'" (quoting Hammett v.
Rosensohn, 46 N.J. Super. 527, 535-36 (App. Div. 1957), aff'd,
26 N.J. 415 (1958))). See also Highway Holding Co. v. Yara
Eng'g Corp., 22 N.J. 119, 133 (1956) (stating "the public policy
of this State favors alienation of property and its ready
marketability").
19 A-6169-12T1
effectuate its salutary purpose. Accordingly, we reject
plaintiffs' arguments and confirm defendant provided more than
sufficient notice to the Association and waited more than an
adequate period of time to allow the homeowners to exercise
their rights under the Act.
Next, we consider whether the Association properly
proceeded to trigger N.J.S.A. 46:8C-12(c) which secures the
Association's contract to buy the park property. The
Association argues its February 27, 2009 letter advising Kaufman
the homeowners "voted to exercise the right of first
refusal . . . as provided by New Jersey law," equated to consent
of two-thirds of the homeowners in the private residential
leasehold community to accept the purchase of the park property
under the same terms offered by Manhattan, thereby
"constitut[ing] a contract of sale," as provided by N.J.S.A.
46:8C-12(c). Alternatively, the Association suggests, Kaufman
ignored the Association's request to "prepare the contract of
sale in accordance with the . . . Act[.]" We disagree and
reject this attempt to deflect inaction onto Kaufman.
Once an owner informs homeowners of a bona fide offer to buy
the park property, the burden to comply with N.J.S.A. 46:8C-12(c)
rests upon the association. Specific actions must occur to result
in a binding agreement, created by operation of law. Ibid.
20 A-6169-12T1
It cannot be ignored that a week before Association counsel
sent the February 27, 2009 letter, the Association's agent READS
sent a proposal containing markedly different terms for
purchase. Kaufman's understandable confusion was relayed, along
with an attempt to secure more definitive information.
Kaufman's efforts proved fruitless, as neither the Association
nor counsel responded. The record fails to show efforts by the
Association to secure financing from ROC or others, other than
the initial inquiry regarding its possible availability.
While defendant understood it was bound to sell the park
property to the Association or its designee "upon the identical
terms" of the Manhattan offer, the Act imposes no obligation to
accept a materially different counterproposal. N.J.S.A. 46:8C-
12(c). If the Association desired to meet Manhattan's offer, as
it now suggests, it merely had to complete and execute the
contract document provided to it on January 28, 2009. This
omission reflects that either the Association failed or refused
to exercise its right to purchase under the Act. N.J.S.A.
46:8C-12(d). Thereafter, Kaufman was free to finalize the deed
with Manhattan.
We also note the record contains no proof the Association's
committee actually proposed a form of purchase to the homeowners
or secured the necessary two-thirds vote to proceed to buy the
21 A-6169-12T1
park property under the terms of Manhattan's offer. Counsel's
one paragraph letter is not compliant with N.J.S.A. 46:8C-12(c).
The notable absence of proof of the Association's fulfillment of
the formalities mandated by this section of the statute cannot
be overlooked. These prerequisites are absolutely necessary to
reach a binding agreement of sale and cannot be inferred or
assumed.
For completeness, we briefly address plaintiffs' suggestion
the motion judge erroneously concluded the Association waived
its rights. Plaintiffs maintain the express language of the Act
demands homeowners' rights may not be waived. To support this
notion, they rely on N.J.S.A. 46:8C-5, which states: "[a]ny
provision of a lease or other agreement whereby any provision of
this act is waived shall be deemed against public policy and
shall be void." Placement of this section within the statutory
scheme follows provisions imposing requirements on mobile home
park owners prohibiting the mandatory purchase of equipment,
N.J.S.A. 46:8C-2; restricting the sale of a mobile home by a
park property owner, N.J.S.A. 46:8C-3; requiring written leases
with all tenants and the prior provision and the conspicuous
posting of the park's rules and regulations, N.J.S.A. 46:8C-4.
Thus, the directive in N.J.S.A. 46:8C-5 aims at mobile home park
landlords who attempt to circumvent these specific statutory
22 A-6169-12T1
directives. It is not intended, as plaintiffs suggest, to limit
application of a court's exercise of equitable relief.5
Following our review, we conclude the Association failed to
exercise its right of first refusal to purchase the park
property as provided by N.J.S.A. 46:8C-12(d). Consequently,
Kaufman was free to complete the transaction with Manhattan.
The order granting summary judgment will not be disturbed.6
Affirmed.
5
The motion judge's use of the term "waiver" referred to the
Association's failure to effectuate its rights because the mere
assertion by the Association of a desire to exercise the right
of first refusal, unaccompanied by formal approval and required
action, did not result in an agreement under the Act. After an
inordinate amount of time passed, far more time than statutorily
required before Kaufman proceeded to effectuate the deal with
Manhattan, the judge found the Association's inaction amounted
to "a waiver," which estopped the Association from asserting a
right to purchase the park property or thwart defendant's third-
party sale.
6
We reject as lacking sufficient merit to warrant discussion
in our opinion, plaintiffs' challenge to the dismissal of their
assertion of a violation of the CFA. R. 2:11-3(e)(1)(E).
23 A-6169-12T1