FIFTH CORRECTED AMENDMENT (Book 4364)
OCTOBER 22, 1985
— Civil Action Judgement as Prefaced to amendment —
STEPHEN B. KOTZAS, ESQ.
83 ROUTE 37 WEST
TOMS RIVER, NJ 08753
(201) 240-6400
ATTORNEY FOR DEFENDANTS – BURNT TAVERN MANOR CONDOMINIUM
ASSOCIATION AND THE BOARD OF DIRECTORS OF BURNT TAVERN
MANOR ASSOCIATION
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BRENTON REALTY CO., INC. : SUPERIOR COURT OF NEW JERSEY
A Corporation of the State : LAW DIVISION OCEAN COUNTY
of New Jersey :
DOCKET NO. L-32887-85
vs. :
CIVIL ACTION
BURNT TAVERN MANOR :
CONDOMINIUM ASSOCIATION et.al.
And ARUNDEL CORPORATION : JUDGMENT
PLAINTIFFS :
vs. :
TOWNSHIP OF BRICK :
THIRD PARTY DEFENDANT :
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THIS MATTER being opened to the Court by John Bonello,
Esq. Of Falvo, Bonello, and Moriarty on behalf of plaintiff,
Stephen B. Kotzas, Esq. On behalf of defendants Burnt Tavern
Manor Condominium Association and the Board of Directors
of the Burnt Tavern Manor Condominium Association, and
the plaintiff and defendants Burnt Tavern Manor Condominium
Association and the Directors of the Association having
agreed to the terms of a certain agreement dated October
1, 1985, and all owners of condominium units in Burnt Tavern
Manor, a condominium having been afforded a full opportunity
to make known to the Court any and all objections to the
agreement; and the aforesaid parties shall enter stipulations
of dismissal without prejudice as to the co-defendant, Arundel
Corporation, and third party defendant, Township of Brick,
and The Court having considered all comments received from
said unit owners and further, having considered the terms
of the Agreement submitted on the record in open court of
October 22, 1985, and the parties to this action having
requested that the terms of the Agreement be incorporated
within the Judgement and for good cause shown;
IT IS on this 22nd day of October, 1985, ORDERED and
ADJUDGED THAT;
1. Final Judgement be entered in accordance with the
terms and conditions of the Agreement, a true copy of which
is attached hereto and made a part hereof as Exhibit A.
2. A copy of this Judgement shall be recorded in the
Clerk’s Office of Ocean County so as to place all futures
unit owners of condominium units in the premises described
in a certain Master Deed recorded in Deed Book 3309, Page
49, As amended by amended Master Deed recorded in Deed Book
3327, Page 1, and as further amended, with exhibits attached
thereto, all recorded in the Office of the Ocean County
Clerk and subject to the provisions of the New Jersey Condo-
minium Act, its supplements and amendments and to the by-laws
of the Burnt Tavern Condominium Association, as amended.
3. The Master Deed shall be amended by this Judgement
as specifically set forth in Exhibit B attached hereto and
incorporated herein.
SIGNED
_________________________
HAROLD KAPLAN, J.S.C.
A G R E E M E N T
WHEREAS, Brenton Realty Co., a New Jersey Corporation
(BRC) has acquired or has options to acquire an undeveloped portion
of a condominium as more particularly described in Schedule A, which
is attached hereto and made a part hereof, (hereinafter referred
to as the Undeveloped Tract); and
WHEREAS, BRC has filed an action in the Superior Court
of New Jersey captioned Brenton Realty co., Inc. vs. Burnt Tavern
Manor Condominium Association, et.al., Docket No. L-32887-85 demand-
ing injunctive relief from the Burnt Tavern Manor Condominium Assoc-
iation (BTMCA) to compel amendment to the Master Deed permitting
the development of the Undeveloped Tract in accordance with an amended
site plan approved by the Planning Board of the Township of Brick
by resolution No. R-311-84 dated November 13, 1984, which is attached
hereto as Schedule B and incorporated herein; and
WHEREAS, BRC wishes to resolve its differences with BTMCA
in order to expedite and facilitate construction of 144 condominium
units on the Undeveloped Tract; and
WHEREAS, BTMCA will incur costs incidental to the con-
struction and future maintenance of the units to be constructed
by BRC.
NOW THEREFORE, on the 1st day of October, 1985 in
consideration herein, the parties agree as follows:
(1) Burnt Tavern Manor (BTMCA) in consideration of the
payment as hereinafter set forth shall approve and execute the
necessary documents for the following:
(a) Shall cooperate with an amendment to the Master
Deed in the form as set forth in the documents attached hereto (pro-
vided no change in the individual unit owners percentage of owner-
ship shall occur by such approval);
(b) Will cause and cooperate with BRC to create any and
all easements necessary and as required pursuant to the construction
plans aforesaid including easements for water, sewer, gas, or any
other utilities brought into the project by BRC (said plans are
incorporated herein by reference);
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(c) The right of first refusal as delineated in the Master
Deed shall be temporarily waived for any of the sales of the new
units by BRC; waiver of sale of new units shall be confined to those
units sold in the ordinary course of business by BRC to a bonafide
purchaser for value;
(d) BTMCA shall provide upon execution of this document
the following documents, if applicable:
(1) An update of the rules and regulations of the
Association.
(2) A copy of the policy and procedure manual of the
Association.
(3) A copy of the most recent budget and financial
report.
(4) a Certificate of Insurance for the fire insurance
policy it currently has for the common elements and association
(certificates for individual units shall be processed through the
Association.)
(e) BTMCA will cooperate with BRC to work out the main-
tenance charges for the new units, which shall be $67.00 per unit,
per month, taking into consideration the differential between the
service of utilities for these new units and the existing units,
e.g., exterior maintenance, snow removal, sewer, and water.
2. Upon execution of this agreemtn and approval or
acquiescence of the unit owners of Burnt Tavern Manor as outlined
below, BRC shall execute a mortgage (All-State Form 2004), which
shall secure a promissory note of even date (All-State Form 204).
The mortgage shall encumber the 144 units to be constructed by BRC.
The Note shall obligate BRC to pay to BRMCA the sum of $850.00 per
unit for a total of $122,400.00, payable as follows:
(A) On the date of amendment to the Master Deed,
$36,000.00 shall be paid by certified check to BTMCA, which shall
represent an initial payment of $250.00 per unit;
(B) The balance of $600.00 per unit shall be paid at
the time of conveyance of title of such unit to a third party, it
being expressly understood that there shall be no interest or other
fees accruing on account of this obligation.
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3. The aforesaid mortgage in the sum of $600.00 per unit
given to BTMCA shall be subordinate to a first purchase money mortgage
and/or a land acquisition mortgage to be given by BRC to a mortgage
lender (it shall also be subordinate to a construction mortgage
given by BRC to City Federeal Savings & Loan Association, which shall
be recorded hereafter). It is expressly understood BTMCA shall
execute any and all subordinations necessary in the event the mortgage
lenders for the acquisition improvement and construction mortgages
above require same. It being expressly understood that the mortgage
given by BRC to BTMCA as outlined herein, shall not be subordinate
to any other encumbrance.
4. It is understood that BRC has title to 32 units and
during the first phase of construction anticipates taking title
to an additional 32 units. The aforesaid mortgages described in
the paragraph above, shall encumber the 64 said units. The balance
of 80 units shall be encumbered by the aforesaid mortgage of $600.00
per unit, at the time title is acquired by BRC. It is understood,
however, that when title is taken by BRC of the remaining 80 units
it may be taken in the name of BRC or another corporation to whom
they will be assigned. At that time, a construction and/or land
acquisition mortgage may be taken out and BTMCA’s mortgage aforesaid
shall be subordinate to both the land acquisition, purchase money,
and/or equity financing to be obtained, and will do so promptly
upon the request for same. In the event there is a modification
or refinancing of any of the aforesaid mortgages, BTMCA shall permit
same, shall subordinate to the new modified or other mortgages pro-
vided, however, that its priority as set forth above, as a third
mortgage, is not altered, and a payment of $32,000.00 is tendered
to the BTMCA to be applied to the outstanding balance. This shall
include any bonafide construction, land acquisition, land improvement
or equity financing required gy BRC.
5. It is specifically understood that uponn payment of
the aforesaid $600.00 the unit encumbered by said payment shall
be released immediately from the lien of the aforesaid mortgage
by BTMCA.
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6. All conditions and obligations of BRC contained in
the Resolution No. R-111-84 of the Brick Township Planning Board
dated November 13, 1984, shall hereby deemed to bind and obligate
BRC and its successors and assigns to BTMCA for the same conditions
and obligations including rights of enforcement. Provided, however,
that a decision of the Brick Township Planning Board and or any
official of Brick Township or the Township fo Brick accepting any
of the work or releasing any of the obligations and conditions shall
be binding upon BTMCA but shall not constitute a waiver of any latent
defects contained in said work.
7. Included herein is the right to maintain a reasonable
sales, marketing, and construction office in a trailer or otherwise
to exhibit signs, both directional and promotional, which shall
be agreed upon by and between the parties herein. Such offices
and signs shall be maintained on common areas where construction
is under way or on Van Zile Road and not in areas where existing
units are located with the exception of directional arrows.
8. BRC shall post a repair fund with BTMCA in the amount
of $1,000.00 for minor repairs to the new units to be constructed
by BRC. There shall be no release of monies based upon any claims
by BTMCA absent written notice to BRC advising it of the item or
defect which is claimed to be the responsibility of BRC. Upon receipt
of said notice, BRC shall have ten days to either make the repair
itself or to notify BTMCA in writing that it is not its reposnibility.
In the efent the repair is the responsibility of BRC and BRC does
not make the repair within ten days, then BTMCA can and shall have
the right to make the repair itself or through its agents and draw
upon the fund to be reimbursed for its costs. Upon making said
repair, it shall immediated send an invoice indication the nature,
date, and amount of work done to BRC for its review and payment
to the fund. The fund must be reimbursed and maintained by BRC
until such time as all Certificates of Occupancy are issued. Provided
further, that in the event of an emergency such as broken pipes
or loss of heat, BTMCA shall be authorized to take all responsible
measures to alleviate any emergency conditions.
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9. In order to provide adequate protection for the
interest of the individual unit owners of the existing units
of Burnt Tavern Manor, the unit owners shall be afforded an
opportunity to be heard and submit comments or objections re-
garding this agreement. Comments and objections may be sub-
mitted in writing to counsel of record for BRC and BTMCA who
shall in turn provide the court with copies. Unit owners shall
also be afforded an opportunity to appear in court and place
comments or objections on the record. Unit owners shall be
afforded written notice of such proceedings by mail to their
last known address. Cost of the postage shall be borne by
BRC.
10. The parties hereto shall execute a stipulation
of settlement consistant with this agreement and dismiss, without
prejudice, all claims against BTMCA and its individual directors
and BTMCA shall likewise dismiss, without prejudice, any and
all claims it has filed in the aforesaid proceedings, without
prejudice, against BRC and any other defendant including third
party defendants.
11. Paul Hayes Management Company (PHM) will act
as liason between BRC and BTMCA to coordinate constructon
plans of BRC, movement of materials, and use of association
property in order that inconvenience to unit owners and occupants
is minimized. It is understood that both parties shall act
reasonably and in an effort of mutual cooperation to provide
for expeditious resolution of any and all problems that may
arise by reason of the construction of the remaining units.
12. BRC shall notify BTMCA of the date of any proposed
closing of title to a third party of an individual unit. Upon
said notice BRC shall send a release of mortgage lien which
will be executed and returned prior to date of closing to BRC
by BTMCA. Said release shall be held in escrow by the attorney
for BRC pending closing of title and transmittal of the aforesaid
$600 per unit. BRC shall cooperate by giving the name and
address of any purchaser for the aforesaid unit and shall collect
any payment necessary for an escrow, common charges, and membership
fee as required by the by-laws and Master Deed. BRC shall
provide to BTMCA copies of all contacts of sale after execution
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and prior to closing of title. BRC shall also provide copies of
closing statements subsequent to closing of title. BRC shall dis-
tribute a letter from BTMCA to all new unit owners. A proposed
form of the letter is attached hereto and made a part hereof.
13. No further changes shall be made to the site plan
of Burnt Tavern Manor absent the prior approval of BTMCA, which
approval sahll not be unreasonable withheld. Provided, however,
that in the event a modification to the site plan is required gy
any municcipal or governmental agency ro is approved by the Planning
Board, said approvals shall be valid and constitute the approval
of BTMCA. Provided further, that notice shall be given to the BTMCA
prior to the release of any performance or other bonds posted or
to be posted by BRC with the Township of Brick. Provided further,
that all contractors of BRC posting performance or completion bonds
shall name BTMCA as co-beneficiary.
14. BRC hereby waives any claim to a seat on the Board
of Directors of BTMCA.
15. BRC shall furnish within twenty (20) days of the
day of execution of this agreement to BTMCA copies of all plans,
drawings, architectural designs, and interior layouts of the proposed
constrution. Said plans, designs, and layouts shall be incorp-
orated herein by reference and constitute a part fo this agreement.
The plans, specifications, and layouts shall not be substantially
altered absent the express written consent of BTMCA.
16. BRC shall designate an officer or agent of BRC for
purposes of communications with BTMCA.
17. BRC shall cooperate with any application by BTMCA
to the Township of Brick for the transfer of the $30,000.00 fund
posted with the Township to BTMCA as mentioned in paragraph 3, to
be applied toward imporvements to the Burnt Tavern Manor Clubhouse
in the event BTMCA elects to do so.
18. This settlement shall not inure to the benefit of
any third party, including any third party defendant and shall not
be admissible as evidence before any court, tribunal, or any hearing
other than in the instant action cited above.
19. This document shall bind all successors and assigns.
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20. This document may be signed in its counterparts.
SCHEDULE A
TITLE NO. AT-NJ 811912 Effective Date January 25, 1984
1. Policy of Policies to be issued: Amount
(a) x ALTA Owners Policy Form______ -1970 $ 160,000.00
Proposed Insured: ANTHONY NAPOLEON, AND/OR
HIS CORPORATE OR PARTNERSHIP ASSIGNEE
(b) x ALTA Loan Policy 1970 $ 128,000.00
Proposed Insured: BURNT TAVERN MANOR, INC.
2. The estate or interest in the land described or referred to in this Committment and covered herein is a Fee Simple.
3. Title to said estate or interest in said land is at the effective date hereof vested in:
BURNT TAVERN MANOR, INC. A New Jersey Corporation, under deed from Total Building Systems, Inc., A New Jersey Corporation, Dated February 12, 1973 and Recorded in the Ocean County Clerk’s Office on March 14, 1973 in Deed Book 3286 Page 511.
4. The land referred to in this Committment is described as follows:
All that certain real property, situate, lying and being in the Township of Brick, in the County of Ocean and State of New Jersey, and more particularly described as follows:
Being the following buildings and the condominium units in each building as set forth below, all in Burnt Tavern Manor Condominium, a Condominium, together with the respective undivided percentage interest in the common elements appurtenant to each unit, in accordance with and subject to the terms, limitations, conditions, covenants, restrictions and other provisions of that certain Master Deed dated May 10, 1973 and recorded June 8, 1973 in Deed Book 3327 page 1, and as further amended by amendments in Deed Book 3356 page 743, Deed Book 3381 page 420, Deed Book 3477 page 550 and Deed Book 3529 page 453, subject to the By-Laws of the Burnt Tavern Manor Condominium Association, as the same were amended by resolution in Deed Book 4170 page 584:
Building No. 10, Unit Nos. 1 through 8; Building No. 11, Unit Nos. 1 through 8; Building No. 12, Unit Nos. 1 through 8; and Building No. 13, Unit Nos. 1 through 8,
Building No. 24, Unit Nos. 1 through 8; Building No. 25, Unit Nos. 1 through 8;
Building No. 26, Unit Nos. 1 through 8; Building No. 27, Unit Nos. 1 through 8.
FIFTH CORRECTED AMENDMENT TO THE MASTER DEED
OF BURNT TAVERN MANOR CONDOMINIUM
BY ORDER OF THE SUPERIOR COURT
By Judgement of the Superior Court of New Jersey, Law
Division in an action captioned Brenton Realty Co., Inc. vs.
Burnt Tavern Manor Condominium association, et.al, Dockt No.
L-32887-85, to which this Amendment is attached as Exhibit
B the Master Deed of the Burnt Tavern Manor Condominium and
its amendments more specifically described below is amended
as follows:
WHEREAS, by Master Deed dated May 10, 1973, recorded
in the office of the Clerk of Ocean County on June 8, 1973
in Book 3309 of Deeds at page 49, the Grantor’s predecessor,
Burnt Tavern Manor, Inc., (hereinafter “Sponsor”) established
Burnt Tavern Manor Condominium, (hereinafter “Burnt Tavern Manor”)
pursuant to N.J.S.A. 46:8B-1 through 30; and
WHEREAS, said Master Deed has been variously amended
by the following instuments:
i. Amended Master Deed, dated July 27, 1973, and
recorded August 10, 1973 in Book 1127 of Deeds for Ocean County
at page 1 et.seq.; and
ii. Corrected Amended Master Deed, dated November
19, 1973, and recorded December 6, 2973 in Book 3356 of Deeds
for Ocean County at page 743 et.seq.; and
iii. Second Corrected Amended Master Deed, dated March
27, 1974, and recorded April 17, 1974 in Book 3381 of Deed
for Ocean County at page 420 et.seq.; and
iv. Third Corrected Amended Master Deed, dated August
29, 1975, and recorded September 29, 1975 in Book 3477 of Deeds
for Ocean County at page 550 et.seq.; and
v. Fourth Corrected Amended Master Deed of Burnt
Tavern Manor Condominium, dated April 28, 1976, and recorded
June 11, 1976 in Book 3529 of Deed for Ocean County at page
453 et.seq.; and
WHEREAS, the unit owners are now in control of the
Grantor Condominium Association; and
WHEREAS, one hundred and forty-four (144) or the
original three hundred and sixty-six (366) units remain still
to be built; and
WHEREAS, Brenton Realty Corp. (BRC), of 53 Aldo Court,
Toms River, New Jersey has succeeded to the interest of the
Sponsor in said one hundred and forty-four (144) unbuilt units,
subject to an agreement with The Burnt Tavern Manor Condominium
Association dated October 1, 1985, which provides that the
Master Deed be amended in the respects herein set forth in
order to enable BRC to proceed with the construction of the
unbuilt units; and
Exhibit A
WHEREAS, by Consent Judgement entered by the Superior
Court of New Jersey, Ocean County, the amendments herein set
forth may be recorded as a Fifth Corrected Amendment to the
Deed in the office of the Clerk of Ocean County:
NOW THEREFORE, the Grantor hereby amends the Master
Deed, and the By-Laws, which are a part thereof, in the following
respects;
1. The site plan referred to in Section 1 of the
Master Deed as Exhibit B and in Section 1 fo the Fourth Corrected
Amended Master Deed as Exhibit B2 is heregy replaced by the
revised site plan, marked Exhibit B3 and attached to this Fifth
Corrected Amended Master Deed.
2. The first two sentences of Section 2 of the Master
Deed are amended so that it shall read as follows:
“2. Burnt Tavern Manor contains forty-nine
buildings divided into six (6) separate
sections as shown on Exhibit B3 attached
hereto and made a part hereof and includes
all rights, roads, water priviledges, and
appurtenances thereto belongs or apper-
taining. Said forty-nine (49) buildings
consist of nineteen (19) apartment buildings
containing in the aggregate one hundred
fifty-two (152) apartment dwelling units,
and thirty-two (32) townhouse buildings
containing in the aggregate two hundred
fourteen (214) townhouse dwelling units…”
3. Section 3 of the Amended Master Deed is amended
in the following respects:
a. The first sentence of the introductoy paragraph
thereof shall read as follows:
“3. The location of the dwelling units is shown
on Exhibit B3; the dimensions and area of
the apartment dwelling units and of the
townhouse units in guilding numbers T1
through T12 are shown on Exhibits E1
through E5 and F; the dimensions and areas
of the townhous units in building numbers
10 through 13 and 24 through 37 are shown
on Exhibits E6 through E9 attached to
this Fifth Corrected Amendment to the
Master Deed.”
4. The schedule of percentage interest in the common
elements referred to as Exhibit D in Section 5 of the Amended
Master Deed and subsequently amended and corrected in the Second
Corrected Amended Master Deed is hereby replaced by a new schedule
of percentage interest attached to this Fifth Corrected Amended
Master Deed and marked Exhibit D1.
5. Excess utility charges for water and sewer above the minimum
charges billed by the Brick Township Municipal Utilities Authority to the
individual unit owners shall be borne by the Burnt Tavern Manor Association as
a common expense.
6. Article XV of the Bylaws of the Assocation shall be amended
as follows:
Each unit owner shall be permitted to examine the Books of Account
of the Board upon written request. The Books of Account are defined as the
General Ledgers and Journal Entries kept in accordance with generally accepted
accounting principals. The Books of Account of the Board shall be available
at a resonable time during business hours and on business days.
The schedule of Percentage of Common Elements is
as follows:
A. Each apartment unit contained in buildings number
1, 2, 3, 4, 5, 6, 7, 8, 9, 14, 15, 16, 17, 18, 19, 20, 21,
22, and 23 has a .261% interest in the general common elements
of the condominium.
B. Each townhouse unit in buildings number T1 through
T12 has a .325% interest in the general common elements of
the condominium.
C. Each townhouse unit in buildings number 10, 11,
12, 13, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36,
and 37 has a .261% interest in the general common elements of
the condominium.
D. The percentage of interest in the common elements
held by existing owners shall not be altered by this amendment.
— AMENDED SITE PLAN —
— COMPOSITE PLAN —
— UTILITY PLAN —
— SOIL EROSION & LANDSCAPING PLAN —
— FLOOR PLANS BY PAUL G. AMELCHENKO AND ASSOCS. —
The undersigned hereby consent to the form and entry of
the within order.
