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Title Nerds co-hosts Mike O’Donnell and Bethany Abele welcomed two partners from our Environmental Practice In Episode 9, Alexa Richman-La Londe and Steve Senior. Alexa and Steve discussed the hot real estate market in New Jersey for commercial/industrial properties, which are frequently environmentally impaired and require remediation. This led to an interesting conversation about the use and mechanics of NJDEP’s Deed Notices that get recorded in land records, including a case where a property owner refused to consent to a Deed Notice (Cozzoli Machine Company v. Crown Real Estate Holdings, Inc., Docket No. A-1733-19, App. Div., Dec. 7, 2021). The discussion led into other environmental documents that show up in title searches (including, other deed restrictions, conservation easements and liens), and the potential obligations of sellers and/or lenders to disclose environmental reports.
Next, Mike interviewed counsel Jorge Sanchez about a case recently heard in the Appellate Division and approved for publication, Woodmont Props. v. Twp. of Westampton, 2022 N.J. Super. LEXIS 13, *2 (N.J. App. Div. Feb. 7, 2022). In this published case, the appeals court affirmed the dismissal of a potential purchaser’s claim for a constructive trust as to foreclosed land, finding that the potential purchaser’s claim could not be sustained because a foreclosure and sheriff’s sale extinguished any unrecorded contractual right to purchase the property. The plaintiff, Woodmont had contracted to purchase a piece of land. The contract required that the seller not encumber the Property more than 80% of its value. Woodmont did not record the contract in the County Clerk’s Office. The following week, the seller gave a mortgage on the land to TD Bank to secure a loan, encumbering the property. The seller defaulted on the loan prior to closing with Woodmont, and TD Bank sought foreclosure of the property. Woodmont did not intervene. While the foreclosure was pending, Woodmont entered into a redevelopment agreement with the Township of Westampton, which was terminated by Westampton when Woodmont failed to secure title to the land. The property was eventually sold to TD Bank at a Sheriff’s Sale. Woodmont subsequently filed suit against Westampton and TD Bank, among others, alleging tortious interference and a breach of the redevelopment agreement. Central to the claim was that the TD mortgage lien was more than 80% of the property’s value. The case was dismissed, and Woodmont appealed. On appeal, the appeals court found that the claims against Westampton failed because the redevelopment agreement was conditioned on Woodmont having title to the property, which it did not. As to TD Bank, the Court first found that even if TD Bank knew of the Woodmount contract, it still had a right to foreclose and need not name Woodmont as the contract was not recorded. To rule otherwise would run contrary to N.J.S.A. 2A:50-30, prior case law. The Court warned that those who did not record their interests ran the risk of their property interest being terminated without being named as defendants in a foreclosure. However, the court did find that Woodmont could have a viable claim against TD Bank for tortiously interfering with its contractual rights with the seller if it indeed knew of the contract .