Land Use Restriction Not Binding Unless Written
On January 21, 2005, the Appellate Division in Mintz v. Township of Millstone, 374 N.J.Super. 396, held that a local planning board could not use anecdotal evidence of an alleged land use restriction as a basis for denying an application for subdivision approval where the owner/applicant took title to the affected lands without notice of such restriction. Here, the anecdotal evidence consisted of the "memories of some residents" and a comment in the minutes of the planning board's hearing that took place when the owner/applicant's predecessor in title first obtained approval from the board to create the property out of a larger tract. According to the court, there was "no dispute" that the purchaser/applicant would have been unable to discover the planning board's alleged prohibition against further subdivision by "conducting a diligent search of the chain of title." Mintz, 374 N.J.Super. at 398, 402. "Indeed, as the evidence heard by the board indicates, the only way a purchaser . . . could gain knowledge of this alleged restriction would be through the testimony of neighbors and the decoding of a typographical error in the minutes of a board meeting that occurred over twenty years earlier." Ibid. at 402.
The court further remarked that under the instant circumstances where "[t]he board's actions in attempting to create [an] alleged restriction are so wanting" a reviewing court may simply declare the restriction unenforceable without having to weigh the "competing interests" that may exist between a governmental agency seeking to impose a limitation on the use of land and an innocent purchaser who acquires the said property without notice of any such restriction. On the contrary, "[t]here need only be a weighing of these competing interests when a local agency has at least memorialized its ruling. A 'deed restriction of the mind,' such as that found by the board to exist, cannot be enforced." Ibid. at 406.
My question is can a developer restrict the use of a room in a condo? A developer is building condos with two bedrooms and a den with a closet. The den in next to the other bedroom and the bathroom and has a door on it. I want to use the den as a third bedroom.
Is that something I can do and how can they enforce such a restriction?
The condo is in Lower Township of Cape May County New Jersey
Mr. Ziccardi. We received your blog comment. It is very possible that a developer, by virtue of a master deed, can limit the use of the rooms, and hence the # of occupants. The Association would enforce this. The municipality likely has a similar restriction. I hope that this helps.