                     NOT FOR PUBLICATION WITHOUT THE
                    APPROVAL OF THE APPELLATE DIVISION

                                        SUPERIOR COURT OF NEW JERSEY
                                        APPELLATE DIVISION
                                        DOCKET NO. A-2118-13T2

HIGHPOINT AT LAKEWOOD
CONDOMINIUM ASSOCIATION, INC.,
                                          APPROVED FOR PUBLICATION
       Plaintiff-Appellant,
                                               August 14, 2015
v.
                                              APPELLATE DIVISION

THE TOWNSHIP OF LAKEWOOD, a
Municipal Corporation and Body
Politic of New Jersey,

     Defendant-Respondent.
___________________________________

           Argued November 18, 2014 – Decided August 14, 2015

           Before Judges Ostrer, Hayden and Sumners.

           On appeal from the Superior Court of New
           Jersey, Chancery Division, Ocean County,
           Docket No. C-214-12.

           Scott K. Penick argued the cause for
           appellant (McGovern Legal Services, LLC,
           attorneys; Mr. Penick, on the briefs).

           Christopher B. Healy argued the cause for
           respondent (Bathgate, Wegener & Wolf, PC,
           attorneys; Mr. Healy, on the brief).

           The opinion of the court was delivered by

OSTRER, J.A.D.

       This appeal arises out of a condominium developer's failure

to complete construction of certain planned units.                 Plaintiff

High   Point   at    Lakewood   Condominium   Association,       Inc.   (High
Point) appeals from the General Equity Part's November 22, 2013,

summary judgment order dismissing its quiet title complaint.

       High Point currently consists of 260 completed condominium

units in thirty-three low rise buildings, located within the

bounds      of   a     25.03     acre   property.           The   1971    master       deed

contemplated         the     construction       of    136    additional        units     in

seventeen buildings in the southern portion of the total parcel.

Pursuant to the master deed, the developer also obtained the

power of attorney from all original owners to remove from the

condominium unbuilt units and the land on which they were to be

built.       Neither       the   original      developer,     nor    a    successor      in

interest, completed the 136 unbuilt units, or formally removed

them     from    the       condominium.         Eventually,       the    successor       in

interest failed to pay real estate taxes on the unbuilt units.

Lakewood Township ultimately foreclosed on tax sale certificates

and took title to the unbuilt units in 1980.                              There is no

evidence     that      Lakewood     attempted        to   exercise       the    power    of

attorney to remove the unbuilt units and the roughly 9.8 acres

on which they were to be constructed.

       In    September         2012,    High     Point      challenged         Lakewood's

foreclosure of the unbuilt units, and sought a declaration that

the township did not hold title to the undeveloped portion of

the parcel removed from the condominium's common property.                               In




                                            2                                    A-2118-13T2
the alternative, High Point asserted that Lakewood was liable

for common area assessments payable by all unit owners.                 The

trial court determined that Lakewood holds clear title to the

undeveloped parcel removed from the condominium; and dismissed

High Point's remaining claims.

    High Point's appeal requires us to determine the status of

the undeveloped parcel and the unbuilt or so-called "phantom"

units.     In so doing, we must address several novel questions

regarding the rights and duties pertaining to such units.                We

hold that phantom units are subject to real estate tax, and to

foreclosure if taxes are not paid.         As the foreclosure pertains

to specific units, the association is not entitled to personal

notice.     We also hold that the title owner of phantom units may

be liable for common area assessments, absent legal or equitable

defenses.     Assuming the powers of attorney as were granted in

this case comply with the New Jersey Condominium Act (Act),

N.J.S.A. 46:8B-1 to -38, and run with land — about which we

express substantial doubts — we hold that they are not self-

executing.     Consequently, absent the formal filing of a deed of

removal,     the   phantom   units   and   undeveloped   parcel    remain

integrated with the balance of the development, as set forth in

the master deed.




                                     3                            A-2118-13T2
      We therefore disagree with the trial court's determination

that Lakewood currently holds separate title to the undeveloped

parcel.       Based   on   the   record       before   us,   Lakewood    owns    the

phantom units and the undivided proportionate share of common

elements accompanying those units.               We therefore affirm in part

and reverse in part the trial court's order, and remand for

further proceedings.

                                        I.

      The     essential    facts      are     undisputed.     High      Point    was

established under the Act pursuant to a master deed from High

Point Development Corp. (HPDC) as grantor recorded in February

1971.1      The master deed contemplated the construction of up to

396   condominium     units      in   fifty     separate     buildings.         Each

building would contain eight units, except for building number

four, which would contain four units.              Each building adjoined at

least one other building; thus, as depicted in drawings, the

total proposed development appears to consist of a total of

twenty-four separate structures.




1
   The original master deed was dated January 8, 1971, and
recorded on February 8, 1971.    An amendment was dated February
8,   1971,  and   recorded  three   days  later  to   correct  a
typographical error resulting in the omission of the first eight
words of section 13. We refer to the master deed as amended as
the "master deed."



                                          4                                A-2118-13T2
    Under section 13 of the master deed, entitled "Removal,"

HPDC reserved the authority to remove "lands" described in the

master deed by exercising powers of attorney granted by unit

owners   pursuant     to   the    master     deed.        The   first    unnumbered

paragraph    states    that      any   and    all    lands      were    subject      to

withdrawal   from     condominium      ownership      pursuant     to    a    deed   of

revocation executed by all unit owners, or their attorneys-in-

fact or mortgagees:

                 Anything to the contrary herein or in
            any other document notwithstanding, the
            submission of the lands described in Exhibit
            "A" aforesaid[2] to condominium ownership shall
            be subject to removal from the provisions of
            the   Condominium    Act   by   a  Deed(s)   of
            Revocation executed by all unit owners or
            the sole owner of the property, the holders
            of all mortgages or other liens affecting
            all units, or be [sic] the attorney-in-fact
            for any of the foregoing, and recorded in
            the same office as this Master Deed.

    HPDC     also   purported     to   reserve       to   itself   the       power   to

remove unsold units together with the common elements and land

associated with them, to within twenty-five feet of structures

not removed, pursuant to the following paragraph:

                 Grantor hereby reserves for itself, its
            successors and assigns, the irrevocable
            right to remove, at its election, from the
            Condominium and from the application of the
            Condominium Act, any or all unsold units

2
  Exhibit A is the metes and bounds description of the "Entire
Tract" as defined.



                                        5                                     A-2118-13T2
            . . . comprising the Condominium, except for
            all units contained in Building Nos. 11
            through 21 ("Charter Units"), together with
            that portion of the common elements of the
            Condominium comprising the land upon which
            the units removed are located and all lands
            contiguous   thereto   which  are  at   least
            twenty-five (25) feet distant from any
            existing building or structure which remains
            a part of the Condominium.     Said right of
            election to remove the Removed Units from
            the   Condominium    may   be  exercised   in
            accordance with applicable law from time to
            time and any [sic] any time.

    However,        the    master      deed     appears      to    acknowledge     that

consent   of   all   unit     owners      was   required      for   removal   of    any

units,    as   set    forth       in   the      first   and       second   unnumbered

paragraphs.      Consequently,         in     the   third    unnumbered    paragraph

within    section    13,    the    deed     purports    to    automatically      grant

powers of attorney to the grantor to exercise that consent:

                 By acceptance of a deed to any unit or
            by the acceptance of any other legal or
            equitable interest in the Condominium, each
            and every contract purchaser, unit owner or
            occupant or holder of any mortgage or other
            liens, does automatically and irrevocably
            name,   constitute,   appoint  and   confirm
            Grantor its successors and assigns, as
            attorney-in-fact    for   the   purpose   of
            executing such Deed(s) of Revocation or
            other instrument necessary to effect the
            foregoing.

            [(Emphasis added).]




                                            6                                 A-2118-13T2
The master deed also states, "The Power of Attorney aforesaid is

expressly   declared   and   acknowledged   to   be   coupled   with   an

interest in the subject matter."

    The master deed provides, "[u]pon the removal(s) of any

unit(s)," for the recalculation of the remaining unit owners'

proportionate interest in common elements.3           In the event of

removal, remaining unit owners retained an easement to parking,

driveways for ingress and egress, and various utilities that may

be located on or contiguous to removed units.

    The recitals of the master deed recognize that in order to

remove units or portions of common elements, the Act "requires

that a Deed of Revocation be executed by all unit owners or the

sole owner of the property and the holders of all mortgages or

other liens affecting all units."      The recitals state that the

powers of attorney were granted to enable HPDC to reserve unto

itself the power of removal:

                 WHEREAS, Grantor may at some future
            date determine that it is not feasible to
            continue the development and sale of the
            Entire Tract as a condominium in the manner
            herein provided, and may desire to remove
            from the aforesaid Condominium, according to
            the provisions of the Condominium Act, any
            or all condominium units not theretofore

3
  The master deed also preserves the right of owners or occupants
of removed units to use the recreational clubhouse or pool
facilities which remain common elements of the condominium, but
puts a limit on the total number of families that can use them.



                                  7                             A-2118-13T2
            sold, shown on the map hereinafter described
            as Exhibit "B", including those portions of
            the common elements constituting certain
            lands contiguous to and upon which such
            units are located (hereinafter referred to
            as the "Removed Units"); and

                 WHEREAS, in order to so remove the
            Removed Units, the Condominium Act requires
            that a Deed of Revocation be executed by all
            unit owners or the sole owner of the
            property and the holders of all mortgages or
            other liens affecting all units; and

                 WHEREAS, in order to facilitate the
            execution of any such Deed(s) of Revocation
            by all such required parties, the Grantor
            desires to reserve herein the irrevocable
            right to remove the Removed Units from the
            Condominium and from the application of the
            Condominium Act and for the Grantor to
            execute any such Deed(s) of Revocation as
            attorney-in-fact   for  all   such   required
            parties without any further consent or the
            necessity for execution of any further
            instrument or document by any such party.

     Ultimately,    only   260   condominium   units   were   completed,

although the date of their completion is not indicated in the

record.     The unbuilt 136 units were to be located on roughly 9.8

acres of land denominated as Block 423, Parcel 1A (Undeveloped

Parcel).4

     By a deed recorded on June 30, 1971, HPDC purported to

transfer various rights and property to Unisave Service Corp.

4
   Although the land is denominated as Parcel 1A in the
foreclosure judgment discussed below, the record includes no
other evidence — such as the tax map — reflecting the
subdivision of the entire tract.



                                    8                           A-2118-13T2
(Unisave) in exchange for $640,000.                    We infer that as of that

date, HPDC had not completed construction of, or sold the 260

units that were ultimately finished and transferred.                          We do so

because the deed purported to transfer buildings 1 through 10,

and 22 through 50, including the apartments contained therein,

plus "such land . . . which encompasses Building #13, Apartments

D-1, D-2, D-3, D-4, and Building #14, Apartments R-1, R-2, E-3

and E-4."         In other words, the only buildings apparently not

transferred       —    perhaps    because      they   were    completed      and   units

therein were sold or retained by HPDC — were nine buildings:                          11

through     12,   and     15    through      21.5     The   deed    stated   that    the

transferred property "is a portion of the property conveyed in

the aforesaid Master Deed."                  Thus, according to the deed, the

property transferred to Unisave included, but was not limited

to,   the   9.8       acres    that   were    to    contain   the   136   never-built

units.

      The deed also transferred to Unisave the powers of attorney

received by HPDC.              "The foregoing conveyance is made together

with all rights reserved to Grantor in the aforesaid Master Deed

which include, but are not limited to: . . . (e) The right of

5
  So-called "Charter Units" — units in buildings 11 through 21 —
were not subject to claimed removal rights, according to the
master deed quoted above.         Nonetheless, the land that
encompassed the identified units in buildings 13 and 14 was
transferred in the HPDC-to-Unisave deed.



                                              9                                A-2118-13T2
removal reserved by Paragraph #13 of said Master Deed as the

same may have been amended."

    It is undisputed that Unisave ultimately defaulted on the

payment of property tax on the 136 phantom units.                          In August

1979,    Lakewood       filed   a    complaint     against    each   of    the   units

seeking foreclosure in rem on the tax sale certificates of those

units.     The record does not include the complaint, but it is

undisputed that Lakewood did not name High Point as a party, nor

did it serve High Point with the complaint.                     However, Lakewood

did publish notice of its complaint.

    Ultimately,           Lakewood       secured      a      final   judgment       in

foreclosure on the tax sale certificates on December 5, 1980,

transferring to Lakewood "an absolute and indefeasible estate of

inheritances       in    fee    simple    in   said   lands."6       The    judgment

described    the    "lands"         transferred,    setting     forth     each   unit,

noting its building and apartment number, that it was part of




6
  The reference to a "fee simple" interest does not connote
ownership of property removed from the condominium.    "The New
Jersey Supreme Court has characterized a condominium unit owner
as having 'fee simple title to and enjoy[ing] exclusive
ownership of his or her individual unit while retaining an
undivided interest as a tenant in common in the facilities used
by all of the other unit owners.'"      Jennings v. Borough of
Highlands, 418 N.J. Super. 405, 419 (App. Div. 2011) (emphasis
added) (quoting Fox v. Kings Grant Maint. Ass'n, 167 N.J. 208,
219 (2001)).




                                          10                                 A-2118-13T2
Block 423, Parcel 1A, and that it consisted of "Vacant Land."7

According    to    High   Point,   for    over    thirty   years     thereafter,

Lakewood did not take any steps to exercise physical possession

of the foreclosed property.

     Apparently concerned that the "status quo" would change, on

September 24, 2012, High Point filed its complaint to quiet

title to the undeveloped parcel.              It sought a judgment declaring

it   the    sole    owner   of     the    undeveloped      parcel.      In    the

alternative, if the court found that High Point did not own the

parcel, then High Point — based on theories of contract and

quasi-contract — sought back payments of unpaid assessments on

the phantom units, plus interest, from January 1, 2006, through

September 18, 2012.

     High Point sought summary judgment, and Lakewood filed a

cross-motion.       High Point argued that the undeveloped parcel

remained part of the common elements of the condominium; it was




7
   For example, the "Description on tax duplicate and in
certificate of sale" for the first of the 136 units was
presented as follows:

            Block 423 Parcel 1A3401
            Massachusetts Avenue
            Part of Block 423,
            Parcel 1A
            Building 34, Apt. 01
            High Point at Lakewood
            Vacant Land



                                         11                             A-2118-13T2
not subject to separate taxation; High Point was entitled to

notice; and the foreclosure judgment was void.

    Lakewood           argued        that    taxation          and     foreclosure        were

permitted on the unbuilt units; High Point was not entitled to

notice;    and    High       Point    was    time-barred        from        challenging    the

foreclosure.           In    its   response        to   High    Point's       statement     of

material     facts,          Lakewood       asserted       that       its      judgment    of

foreclosure "effectuated Lakewood's exercise of its rights as

successor in interest to the developer under Paragraph 13 of the

Master Deed [governing removal] and resulted in Lakewood taking

possession       of    the    Property."            Lakewood         also    submitted     the

opinion of a title officer with a title insurance agency, who

stated that the HPDC-to-Unisave deed conveyed to Unisave the

removal rights in section 13 of the master deed; and Lakewood

became a successor in interest to those rights; and by operation

of the foreclosure, it removed the units from the condominium,

and obtained a fee simple estate to the undeveloped parcel.                                 In

other words, the title officer took the position that until the

foreclosure,          the     phantom       units       were    still        part   of     the

condominium.

    The     trial       court      granted        Lakewood's     motion,       denied     High

Point's    motion,          dismissed       the    complaint,         and    declared     that

Lakewood is the fee simple owner of all lands foreclosed upon by




                                              12                                    A-2118-13T2
way of the 1980 final judgment, free from any requirements of

the High Point master deed, by-laws, or the Act.                    In its oral

decision, the trial court held that each unit, including unbuilt

units, were subject to taxation, citing Glenpointe Associates v.

Township of Teaneck, 10 N.J. Tax 288 (Tax 1988).                      The court

found that High Point was not entitled to specific notice of the

foreclosure complaint, and it was, in any event, time-barred

from challenging the foreclosure.            Finally, the court held that

the developer possessed the right to remove unsold units from

the    condominium    pursuant   to    section   13    of    the   master    deed;

Lakewood succeeded to those rights; and the in rem foreclosure

"effectively removed this land from the condominium" pursuant to

those removal rights.

                                       II.

       We review the trial court's grant of summary judgment de

novo, applying the same standard as the trial court.                   Henry v.

N.J.   Dep't   of    Human   Servs.,   204   N.J.     320,   330   (2010).      We

determine whether the moving party has demonstrated the absence

of genuine issues of material fact, and whether the trial court

has correctly determined that movant is entitled to judgment as

a matter of law, owing no deference to the trial court's legal

conclusions.        N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438




                                       13                               A-2118-13T2
N.J. Super. 501, 507 (App. Div.), certif. denied, ___ N.J. ___

(2015).

       Interpretation of a master deed is also a question of law.

Belmont Condo. Ass'n v. Geibel, 432 N.J. Super. 52, 86 (App.

Div.), certif. denied, 216 N.J. 366 (2013).           We exercise de novo

review of such legal questions.            See Manalapan Realty, L.P. v.

Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

                                     A.

       We turn first to the issue of taxation and Lakewood's in

rem foreclosure of the tax sale certificates.             High Point argues

that    Lakewood   was   not   empowered    to   impose   taxes   on,     or   to

foreclose on, phantom units.         Further, High Point asserts that

its foreclosure complaint sought foreclosure on common property;

High Point was entitled to notice as owner; and the failure of

notice rendered the judgment void.          We are unpersuaded.

       Under the condominium form of ownership of real property, a

"master deed provid[es] for ownership by one or more owners of

units of improvements together with an undivided interest in

common elements appurtenant to each such unit."             N.J.S.A. 46:8B-

3(h).     A "unit" consists of "a part of the condominium property

designed or intended for any type of independent use, having a

direct exit to a public street or way or to a common element

. . . leading to a public street or way."            N.J.S.A. 46:8B-3(o).




                                     14                                 A-2118-13T2
"Each unit shall constitute a separate parcel of real property

which may be dealt with by the owner thereof in the same manner

as is otherwise permitted by law for any other parcel of real

property."        N.J.S.A. 46:8B-4.          A common element includes land

described as such in the master deed; "yards, gardens, walkways,

parking areas;" and "installations of all central services and

utilities."       N.J.S.A. 46:8B-3(d).

      For purposes of taxation, each unit is taxed separately.

N.J.S.A. 46:8B-19 (stating that "[a]ll property taxes . . .

shall be separately assessed against and collected on each unit

as a single parcel, and not on the condominium property as a

whole"); see also Perth Amboy Gen. Hosp. v. City of Perth Amboy,

176   N.J.    Super.     307,   312   (App.    Div.    1980)    (stating   that   "a

condominium unit is for tax purposes an exclusive and separate

unit despite the fact that by definition any condominium owner

shares    undivided      interests     in    common    with    others"),   certif.

denied,      87   N.J.   352    (1981);     Cigolini   Assocs.    v.   Borough    of

Fairview, 208 N.J. Super. 654, 664-65 (App. Div. 1986) (stating

that the borough was authorized to separately assess nineteen

apartments        converted      to    condominium       form     of   ownership,

notwithstanding that the plaintiff who converted the apartments

retained ownership, and continued to rent the units because of

poor market conditions).              Likewise, the tax shall serve as a




                                          15                               A-2118-13T2
"lien   only    upon    the    unit    and   upon    no    other    portion       of   the

condominium property."          N.J.S.A. 46:8B-19.8

    In    Glenpointe,         the   tax   court     held    that     under       N.J.S.A.

46:8B-19, a unit does not need to include an apartment, and an

assessment may involve only land.                   Glenpointe, supra, 10 N.J.

Tax at 294.      Furthermore, a condominium unit does not need to be

completed      before   it     is     considered     a    unit     for    purposes      of

assessing      responsibility       for   the   proportionate            share    of   the

common elements.        Ibid.

            By   statute    [the   Condominium    Act],   a
            condominium is created and established upon
            the filing of a master deed.       The statute
            also clearly provides that each condominium
            unit   is  separately    assessed   and   that,
            appurtenant to and inseparable from each
            unit, is a proportionate share of the common
            elements.   Indeed, the statutory definition
            of a condominium unit includes the share of
            the common elements assigned to it.         The
            separate     assessment     of    each     unit
            contemplated    by   N.J.S.A.   46:8B-19    may
            involve land only, or it may reflect land
            plus partial improvements, such as footings
            and foundations.    Whatever the condition of
            the unit assessed, whether finished or

8
  We recognize that if a condominium association separately owns
a parcel not recorded as a "common element," the association may
be subject to separate taxation.   See Tower W. Apartment Ass'n
v. Town of W. New York, 2 N.J. Tax 565, 569-74 (Tax 1981)
(allowing separate taxation of parking facility not conveyed as
part of the condominium unit and not within the purview of
N.J.S.A. 46:8B-19), aff'd o.b., 5 N.J. Tax 478 (App. Div. 1982);
see also Wendell A. Smith, Dennis A. Estis, & Christine F. Li,
New Jersey Condominium & Community Association Law, § 2:4 at 21
(2015).



                                          16                                     A-2118-13T2
           unfinished, the unit's assigned share of the
           value of the common elements is included in
           the assessment.

           [Ibid.]

See also Tall Timbers, Inc. v. Vernon Twp., 5 N.J. Tax 299, 301-

10 (Tax 1983) (addressing taxation of vacant land, campsites,

with access to limited improvements, in a condominium campground

community), overruled in part on other grounds by Twp. of W.

Milford v. Van Decker, 235 N.J. Super. 1, 22 (App. Div. 1989),

aff'd 120 N.J. 354 (1990).

    High    Point    argues   that    Glenpointe   only     stands   for     the

proposition that the value of a unit may involve only land, but

not that a unit may consist only of undeveloped land.                      High

Point notes that in Glenpointe, physical construction of the

units had begun and was at various stages of completion.                   High

Point contends the Act requires that a unit include improvements

to land.

    We disagree.       A unit may exist under the Act, even if it

does not yet have an actual use.           A unit is defined as a part of

property "designed or intended for any type of independent use."

N.J.S.A. 46:8B-3(o) (emphasis added).            The taxation of phantom

units   constitutes   taxation   on    the    basket   of   property    rights




                                      17                               A-2118-13T2
associated      with     the     unit,    including     the        unit's     undivided

interest in the common elements.9

     Although     we     have    found    no   case    in    New     Jersey    directly

addressing      the     issue    of   taxation    of        phantom     units,     other

jurisdictions have persuasively held that a developer is liable

for taxes on unbuilt units.               In Saddle Ridge Corp. v. Bd. of

Review, 784 N.W.2d 527 (Wis. 2010), the court affirmed taxation

of phantom units, and rejected arguments like those High Point

presents here: that unbuilt units were not "units" under the

state's    condominium         statute,   and    taxation       of    phantom      units

amounted to taxation of the vacant land that was part of the

condominium's common elements.             Id. at 536.         The Wisconsin court

endorsed the reasoning that a condominium is created when the

declaration and plat are recorded.                    Id. at 540.             The court

reasoned that if unbuilt units                 are not taxable, a developer

could be immune from taxation unless and until it commenced

construction.         Id. at 539.     See also Vill. at Treehouse, Inc. v.

Prop.     Tax   Adm'r,     321    P.3d    624,    625-28       (Colo.       App.   2014)




9
  We need not address the appropriate means of valuing such
property. See N.J.S.A. 54:4-23.




                                          18                                    A-2118-13T2
(approving taxation of development rights to construct unbuilt

condominium units).10

         Having concluded that Lakewood was empowered to tax the

phantom units as individual properties, separate from the common

elements of the condominium, we reject High Point's argument

that it was entitled to separate notice of Lakewood's complaint

to foreclose on the tax sale certificates.                   Lakewood was obliged

to send notice to the owner of record of the phantom units —

Unisave.     See Twp. of Montville v. Block 69, Lot 10, 74 N.J. 1,

19-20 (1977) (stating that the owner of record is entitled to

actual     notice    of   in       rem   foreclosure   action).        Constructive

notice     through    publication          was   sufficient       notice   to   other

parties, including High Point.              See N.J.S.A. 54:5-104.42.

         High Point misplaces reliance on Wynwood Condo. Ass'n v.

Twin Trees Dev. Co., 250 N.J. Super. 510 (Ch. Div. 1991).                       That

case involved the mistaken transfer to a third party of property

—    a   drainage   basin      —    that   was   contained   in    a   condominium's

master deed.         Id. at 514.           The third-party property owner of

record failed to pay taxes.                  Ibid.     Notice of the tax sale

foreclosure action was provided to the owner of record, but not


10
  Our conclusion that phantom units are subject to taxation is
also supported by the substantial authority in other states,
concluding that phantom units are subject to assessments, which
we discuss below.



                                            19                              A-2118-13T2
the condominium.          Id. at 517.          In that case, in light of the

initial error in the transfer of the property, the court held,

given   "the   unusual      set     of   facts,"    that   the    condominium    was

entitled to actual notice of the foreclosure action.                        Id. at

519.    The distinction between that case and the one before us is

obvious.       The    foreclosure         here     did    not    involve   property

consisting     of    part   of     the   common    elements;      the   foreclosure

pertained to the phantom units.                In light of the foregoing, we

need not reach the issue whether High Point was time-barred from

challenging the foreclosure judgment.

       In sum, we discern no substantive basis to disturb the 1980

foreclosure judgment.              We therefore affirm the trial court's

determination dismissing High Point's challenge to the judgment.

                                          B.

       However,      we     part     company       with    the     trial    court's

determination that as a consequence of its foreclosure judgment,

Lakewood removed the phantom units from the condominium, and

obtained fee simple ownership of the undeveloped parcel.                         The

court's conclusion was predicated on the developer's right to

remove unsold units pursuant to section 13 of the master deed,




                                          20                               A-2118-13T2
and the court's determination that the judgment of foreclosure

was equivalent to a deed of revocation of the phantom units.11

     The Act, as in effect in 1980 when Lakewood obtained title

to the phantom units, authorized removal of condominium property

upon the unanimous vote of the unit owners.

          Any condominium property may be removed from
          the provisions of this act by a deed of
          revocation duly executed by all unit owners
          or the sole owner of the property and the
          holders of all mortgages or other liens
          affecting all units and recorded in the same
          office as the master deed.

          [L. 1969, c. 257, § 26 codified at N.J.S.A.
          46:8B-26.]

The statute was amended in 1985 to authorize removal with a vote

of eighty percent of unit owners.   L. 1985, c. 3, § 1.    Once a

deed of revocation is recorded, "the unit owners as of the date

of recording of such deed shall become tenants-in-common of the


11
   The metes and bounds of the land that HPDC transferred to
Unisave in the HPDC-to-Unisave deed constituted a large part of
the land that HPDC previously subjected to condominium ownership
in the master deed; it included land under both the phantom
units and units that were ultimately completed and form part of
the existing association. Lakewood's argument presumes that the
phantom units remained part of the condominium until it obtained
foreclosure judgment on the tax sale certificates, and only then
removed them from the condominium.     In other words, Lakewood
does not contend that the HPDC-to-Unisave deed removed the
phantom units, as well as those apartments built or unbuilt and
contained in buildings 1 through 10, 22 through 50, and parts of
13 and 14, which were transferred by the deed.      We therefore
need not address whether such a removal by the HPDC-to-Unisave
deed would have been effective under the Act.



                               21                         A-2118-13T2
property unless otherwise provided in the master deed or deed of

revocation."          N.J.S.A. 46:8B-27.

       We reject Lakewood's argument that section 26 of the Act

pertains only to the termination of an entire condominium, and

not   the     partial      removal    or   withdrawal       of   units.      The   plain

language of the provision, which refers to "[a]ny condominium

property," encompasses any unit or units of property within the

condominium.          See State v. Rosecliff Realty Co., 1 N.J. Super.

94, 100 (App. Div. 1948) ("The word 'any' means '. . . one out

of    many    .   .   .'   and   is   given      the   full   force    of    'every'    or

'all.'") (citation omitted), certif. denied, 1 N.J. 602 (1949).

       Lakewood's reading would also lead to an absurd result.                          On

one    hand,      unanimous      consent   would       be   required    to   remove     an

entire       condominium      property,       to   shield     unit     owners   of     the

potential prejudicial impact of termination.                     On the other hand,

according to Lakewood's reading, a developer may reserve unto

itself the power — without any say from unit owners — to remove

or withdraw all but a slight portion of an entire condominium,

to comparable prejudice of the affected owners.12


12
   We note that the amended Uniform Condominium Act § 1-
103(11)(iv), 7 U.L.A. 504 (1980) (U.C.A.), empowers a developer
to retain the power to "withdraw" real estate from a
condominium. See ibid. (defining development rights to include
right   to  withdraw  property).      However,  the  power   is
circumscribed, to protect the interests of unit owners.     See
                                                    (continued)


                                            22                                  A-2118-13T2
    The recitals in High Point's master deed also recognize

that unit owners' approval was required for the partial removal

of unsold units.      The prime consideration in determining the

meaning of a deed is the intent of the parties.           Normanoch Ass'n

v. Baldasanno, 40 N.J. 113, 125 (1963).            The recitals reflect

the grantor's intent.      See generally Genovese Drug Stores, Inc.

v. Conn. Packing Co., 732 F.2d 286, 291 (2d Cir. 1984) ("[A]n

expression   of   intent   in   a   'whereas'   clause   of   an   agreement

between two parties may be useful as an aid in construing the

rights and obligations created by the agreement, but it cannot

create any right beyond those arising from the operative terms



(continued)
U.C.A. § 2-105(8) (requiring a description of those areas
subject to withdrawal); U.C.A. § 2-110(d) (governing the
exercise of the power to withdraw, providing that if the
declaration does not describe portions subject to withdrawal,
then none of the real estate may be withdrawn once one unit has
been conveyed; and if portions are subject to withdrawal, then
no portion may be withdrawn after one unit in that portion has
been conveyed). New Jersey's statute does not expressly address
the subject. Consequently, if a developer is uncertain whether
economic conditions will justify the complete build-out of a
planned condominium, the developer may approach the project in
phases, adding new sections to the master deed as conditions
permit, rather than attempt to withdraw unbuilt or unsold units
from the condominium.   See Smith, Estis & Li, supra, ch. 4 at
27-35 (discussing phasing of condominium projects); Lowell E.
Sweet, Condominium Law and Practice, § 54.03(1)[d] (2015)
(discussing issues raised by failure to complete a project,
phantom units, and the desirability to eliminate phantom units
by amending a condominium's declaration, although such amendment
"can usually be adopted only by the unanimous consent of the
developer and all unit owners").



                                     23                             A-2118-13T2
of    the    document.");             see    also    Monks     v.     Provident         Inst.    for

Savings, 64 N.J.L. 86, 89 (Sup. Ct. 1899) (stating "parties to a

deed or contract are estopped from contradicting or disputing

these recitals, and they must be taken as true so far as they

may aid and assist in the interpretation of the contracts").

       The third "whereas" clause notes that the developer may

want to remove unsold units if "it is not feasible to continue

the    development            and     sale   of     the     Entire    Tract."           Apparently

referring to N.J.S.A. 46:8B-26, the next recital states that "in

order       to    so    remove        the    Removed        Units,    the    Condominium         Act

requires         that    a    Deed     of    Revocation       be     executed      by    all    unit

owners . . . ."                 Thus, the recitals reflect the intent that

unanimous consent of unit owners was required to remove any

unsold units.

       The substantive provision of the master deed, section 13,

granted HPDC and its successors the irrevocable right to remove

unsold       units.           But     the    removal        power     is    not    unqualified.

Section      13        also    includes       the    automatic        grant       of    powers    of

attorney to execute deeds of revocation.                             The powers of attorney

were    granted         "for     the    purpose        of    executing      such       Deed(s)    of

Revocation         or         other     instrument          necessary       to         effect    the

foregoing" — where "foregoing" refers to the preceding paragraph

that addressed HPDC's right to remove unsold units.




                                                  24                                       A-2118-13T2
      Thus, HPDC attempted, through the master deed, to avoid the

necessity of actually obtaining the unanimous consent of the

unit owners.       HPDC did so by including in the master deed a

provision whereby unit owners automatically granted to HPDC, and

its successors, irrevocable powers of attorney to exercise their

votes.    HPDC's purpose is set forth in the fifth recital clause.

"[I]n order to facilitate the execution of any such Deed(s) of

Revocation," HPDC reserved unto itself the "irrevocable right to

remove the Removed Units . . . and . . . to execute any such

Deed(s) of Revocation as attorney-in-fact for all such required

parties      without   any   further      consent   or    the    necessity     for

execution of any further instrument or document by any such

party."

      High    Point    questions    the     validity     of     the   developer's

retention of the right to remove property from the condominium.

High Point argues the master deed provision violates section 26

of the Act, which requires unit owners' consent.                  The powers of

attorney were clearly designed to avoid the stricture of section

26.   Although not expressly addressed by High Point, section 7

of the Act may bar such powers of attorney.                   Section 7 states:

"Any agreement contrary to the provisions of this act shall be

void."    N.J.S.A. 46:8B-7.        Section 13 of the master deed may be

deemed an agreement contrary to the Act.




                                       25                                A-2118-13T2
    Although we have found no case in New Jersey interpreting

N.J.S.A. 46:8B-7, we note that the current version of the U.C.A.

expressly provides that powers of attorney may not be used to

evade statutory requirements.             U.C.A. §   1-104.     The comment

recognizes the potentially abusive use of powers of attorney to

evade consumer protections found elsewhere in the statute.

                 One of the consumer protections in this
            Act is the requirement for consent by
            specified percentages of unit owners to
            particular   actions  or   changes  in   the
            declaration. In order to prevent declarants
            from evading these requirements by obtaining
            powers of attorney from all unit owners, or
            in some other fashion controlling the votes
            of unit owners, this section forbids the use
            by a declarant of any device to evade the
            limitations or prohibitions of the Act or of
            the declaration.

            [U.C.A. § 1-104, comment 2.]

    It is also unclear that Lakewood succeeded to the powers of

attorney.     It   is   apparent   that    the   grant   of   the   powers   of

attorney was presumed to run with each unit, such that the grant

was binding against the unit owners' successors and assigns, and

to avoid the necessity that subsequent owners execute powers of

attorney.    We presume that the provision stating the grants were

"coupled with an interest in the subject matter" was intended to

accomplish that result.

    However, it is far from clear that the power to exercise

the powers of attorney ran with Unisave's property, as Lakewood



                                    26                                A-2118-13T2
asserts, such that Lakewood succeeded to Unisave's rights when

it obtained title to the phantom units.                        Unisave conceivably

could have defaulted on taxes of only some of the phantom units.

Under     that     scenario,    accepting       Lakewood's        reasoning,       both

Unisave    and     Lakewood    would     possess    the        powers   of   attorney

simultaneously        with      the    potential          of     exercising        them

inconsistently — an absurd result.

    However, we leave for another day the issue whether the

powers of attorney violate the Act — which lacks the express

reference found in the U.C.A. — or public policy.                        We also do

not resolve whether, if enforceable, the powers of attorney ran

with the land.        Even if they were enforceable, and ran with the

land, they were not self-effectuating.

    We thus differ with the trial court, which concluded that

the phantom units were removed by the entry of the foreclosure

judgment.        The Act requires the filing of a deed of revocation

executed by the unit owners or, arguably, their attorneys in

fact.     See N.J.S.A. 46:8B-26.         No such deed was filed.

    The foreclosure judgment does not suffice.                          The judgment

does not mention a "deed of revocation," or state expressly that

property     was     being     removed     from    the         condominium.         The

foreclosure       judgment     includes    no     metes    and     bounds     of    the




                                          27                                  A-2118-13T2
property obtained.13          It refers to each separate unit by its

building and apartment number.                We thus conclude that Lakewood

currently     holds      title   to    the    phantom      units,       which    remain

integrated with the entire tract as described in the master

deed.    Lakewood may choose to file a deed of revocation, to

secure its right to the land, removed from the association's

common   area.        If   Lakewood    does     so,    then      the    issue   of    the

enforceability of the powers of attorney may be joined.

                                         C.

     Finally, we address High Point's argument that if Lakewood

does hold title to the phantom units, then it is liable for

assessments      since     1980.14     Although       no   New    Jersey     case     has

apparently    addressed       the    issue,    liability      for      assessments     is

consistent    with       liability    for     taxation,       which     we   discussed


13
   The metes and bounds of property identified in the HPDC-to-
Unisave deed does not separately describe the undeveloped
parcel; rather, it describes all the land covered by the master
deed's metes and bounds, except for a portion in the northwest
corner, where, apparently, the units that were not transferred
were located.
14
  In its September 2012 complaint, High Point similarly alleged
that Lakewood's liability reached back to December 5, 1980.
Yet, in its prayer for relief, it sought judgment only for
slightly over six years of assessments, starting January 1,
2006, plus interest.       High Point did so apparently in
recognition of the six-year statute of limitations.          See
N.J.S.A. 2A:14-1.    However, High Point does not explain the
basis of its claim for assessments between January and September
2006.



                                         28                                     A-2118-13T2
above.    The Act provides that "common expenses shall be charged

to unit owners" without limitation to owners of partially built

or unbuilt units.      N.J.S.A. 46:8B-17.              Department of Community

Affairs   regulations,      pursuant       to    the     Planned   Real     Estate

Development   Full   Disclosure    Act,         N.J.S.A.    45:22A-21     to     -56,

contemplate   assessments     on   units        "under     development."          See

N.J.A.C. 5:26-8.6(b) ("When the association has made a common

expense assessment, the assessment shall be assessed against the

units individually owned and under development in proportion to

the benefit derived by the unit from the items included in the

budget.").

    There     is     also     persuasive           authority       from         other

jurisdictions,     applying   their    respective          statutes,      for     the

proposition that phantom units are subject to assessments.                        See

Mountain View Condo. Homeowners Ass'n v. Scott, 883 P.2d 453,

457 (Ariz. Ct. App. 1994) (recognizing view that U.C.A. does not

"distinguish between completed and uncompleted units in . . .

levying assessments for maintenance, repair and administrative

expenses attributable to the common elements"); Hatfield v. La

Charmant Home Owners Ass'n, 469 N.E.2d 1218, 1221-22 (Ind. Ct.

App. 1984) (rejecting argument that "habitability" must precede

assessment); Pilgrim Place Condo. Ass'n v. KRE Props., Inc., 666

A.2d 500, 502 (Me. 1995) (stating "[n]o provision of the Act




                                      29                                  A-2118-13T2
requires any distinction between built and unbuilt units in the

assessment      for    common    expenses");        Bradley    v.    Mullenix,       763

S.W.2d 272, 275-77 (Mo. Ct. App. 1988) (stating that neither the

statute nor the condominium's declaration distinguished between

completed and unfinished units, and holding that developer was

liable    for   proportionate          share   of   expenses     attributable         to

unfinished units); Centennial Station Condo. Ass'n v. Schaefer

Co. Builders, Inc., 800 A.2d 379, 384 (Pa. Commw. Ct. 2002)

(following Mountain View and Pilgrim Place); cf. Rafalowski v.

Old Cnty. Rd., Inc., 719 A.2d 84, 87-88 (Conn. Super. Ct. 1997)

(permitting a lesser assessment fee for unfinished units), aff'd

o.b., 714 A.2d 675, 675-77 (Conn. 1998).15

     Pilgrim Place is particularly noteworthy as it involved a

bank's    foreclosure     on    a   developer's      interest       in   a   partially

completed condominium development.                  Pilgrim Place, supra, 666

A.2d at 501.          Defendant KRE acquired title at the foreclosure

sale to twenty-four unbuilt units out of a total of forty-eight

units.     Ibid.        KRE    built    sixteen     units     during     its   control

period.    Id. at 501-02.           It paid no assessments on the unbuilt


15
   We recognize this is not the unanimous view of other
jurisdictions.   See, e.g., Meghan Coves Ass'n v. Meghan Coves
Prop., Inc., 50 P.3d 226, 230-31 (Okla. Civ. App. 2002) (finding
that under Oklahoma statutory law, the establishment of a unit
requires construction of a unit "rather than an idea expressed
on paper").



                                          30                                   A-2118-13T2
units.     Id. at 502.           The court held that it was liable for

assessments associated with the unbuilt units until its control

period ended, at which time the right to develop the unbuilt

units expired, according to the condominium declaration.                        Ibid.

       Nonetheless,    a    condominium        association    may   be    barred       by

principles     of    waiver       or   laches     from   imposing        retroactive

assessments.        See Springside Land Co. v. Bd. of Managers of

Springside Condo. I, 869 N.Y.S.2d 101, 105-06 (App. Div. 2008)

(finding that a board waived its right to assess common charges

on unfinished units by waiting ten years to impose them, but

stating that waiver can be withdrawn as it pertains to the right

to assess future common charges).                 In any event, it is unclear

that   assessments     on       phantom   units    should    be   equal    to      those

imposed on finished units.                See N.J.A.C. 5:26-8.6(b) (stating

that     assessments       on    "units     individually      owned       and      under

development" shall be "in proportion to the benefit derived by

the unit") (emphasis added); see also Ocean Club Condo. Ass'n v.

Gardner, 318 N.J. Super. 237, 240 (App. Div. 1998) (quoting

approvingly trial court decision stating that with respect to

units under development, "'[i]n such a setting, it would be

logical and equitable to only assess such units to the extent

that they benefit from the common elements which, during the

development stage, would understandably be less than for those




                                          31                                    A-2118-13T2
units that are complete'").           We remand to the trial court to

address High Point's claim to assessments.

                                      D.

      To summarize, we conclude that Lakewood was empowered to

tax   the   phantom    units,   and   to   foreclose         on    the    tax     sale

certificate after the taxes were unpaid.                However, Lakewood's

right to remove the phantom units required the unanimous consent

of the unit owners.         We question whether the powers of attorney

are valid or were transferred with the phantom units obtained

through     foreclosure.       However,    even    if   their          validity     and

transfer are assumed, they are not self-executing.                     Lakewood had

not executed or filed a deed of revocation; and the foreclosure

judgment does not suffice.

      Consequently,    Lakewood    remains    the   owner         of    the   phantom

units     until   an   enforceable    deed    of    revocation           is    filed.

Although    Lakewood   is    potentially   subject      to    assessments,          its

liability for past assessments may be barred by principles of

waiver or laches; in any event, Lakewood's liability is limited

by the statute of limitations.

      Affirmed in part, reversed in part and remanded.                    We do not

retain jurisdiction.




                                      32                                      A-2118-13T2
