Alexander Bldg. Corp. v. Borough of Carteret, A--23

• Decision Date: 09 November 1959
• Docket Number: No. A--23,A--23
• Citation: 155 A.2d 263,31 N.J. 87
• Parties: ALEXANDER BUILDING CORPORATION, a New Jersey Corporation, Plaintiff-Respondent, v. BOROUGH OF CARTERET, a municipal corporation of New Jersey, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 87

31 N.J. 87

155 A.2d 263

ALEXANDER BUILDING CORPORATION, a New Jersey Corporation Plaintiff-Respondent, v. BOROUGH OF CARTERET, a municipal corporation of New Jersey Defendant-Appellant.

No. A--23.

Supreme Court of New Jersey.

Argued Oct. 14, 1959.

Decided Nov. 9, 1959.

Raymond W. Troy, Newark, argued the cause for plaintiff-respondent (Lum, Fairlie & Foster, Newark, attorneys; Theodore L. Abeles, Newark, on the brief).

Morris Brown, Westfield, argued the cause for defendant-appellant (John M. Kolibas, Carteret, attorney).

PER CURIAM.

The borough sold certain tracts of land to plaintiff's predecessor in title subject to conditions with respect to their improvement, which were set forth in the deeds. The conditions imposed the obligation (1) to construct complete sanitary and storm sewers to accommodate the property sold, (2) to provide a five-inch penetration macadam road on all streets on which the lots face, (3) not to build houses thereon which would cost less than $6,000, (4) to furnish all utilities required for houses when erected, (5) to lay curbs according to grades established by the borough engineer at the time when houses were built, and (6) not to build a house on less than 5,000 square feet of land. No words were included by which the purchaser expressly agreed and undertook to build houses. The deeds did provide, however, that the 'entire tract shall be Improved within 3 years and 3 months from the date of confirmation of the said sale by the borough council. In the event that the purchaser shall fail to Improve the aforesaid property within the period provided for, then in that event the unimproved lots in this tract shall revert to the Borough of Carteret * * *.' (Emphasis added.) Although the matter is of no particular moment in the framework of the case before us, it is plain that the quoted language created a fee on a condition subsequent and not a determinable fee. Oldfield v. Stoeco Homes, Inc., 26 N.J. 246, 139 A.2d 291 (1958).

In the three years and three months following confirmation of the sale, all of the tracts were cleared, graded and adapted as building lots, the required streets were paved, utilities and sewers were installed (except for a rather insignificant amount), the necessary curbing had been installed, and 511 homes had been built. At this time, apparently 22 more houses could have been built on the remaining 39 scattered lots. More than two years after the termination date of the last three year and three months period (the property was conveyed in four tracts by separate deeds bearing different dates) plaintiff made an agreement with the then owner to purchase the remaining lots. When a title guaranty policy was sought, the title company requested that a resolution be obtained from the borough to the effect that the conditions in the deeds had been satisfied. Such a resolution was prepared and presented to the council. After preliminary inquiries of the borough engineer by the mayor which elicited the information that all the improvements were in, everything was in that had to be in, the resolution and a 'declaration' attached to it were adopted on April 18, 1957. The declaration, after referring to the various deeds, said in part:

'Whereas, in said deeds there is a restrictive covenant which in effect states that if the purchaser shall fail to Improve the aforesaid property within the period of three (3) years and three...