NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2894-24
PALISADIUM MANAGEMENT CORP.,
Plaintiff-Appellant,
v.
CARLYLE TOWERS CONDOMINIUM ASSOCIATION, INC.,
Defendant-Respondent. _____________________________
Submitted March 24, 2026 – Decided June 16, 2026
Before Judges DeAlmeida and Torregrossa-O'Connor.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1463-23.
Bivas Law LLC, attorneys for appellant (Ariel A. Bivas, on the briefs).
Greenbaum Rowe Smith & Davis, LLP, attorneys for respondent (Alan S. Pralgever and Meredith C. Sherman, on the brief).
PER CURIAM In this easement dispute concerning access road rights, plaintiff
Palisadium Management Corporation, appeals from two related Law Division
orders, issued February 19, 2025, denying its motion for summary judgment,
and partially granting defendant Carlyle Towers Condominium Association's
cross-motion for summary judgment. The partial grant of summary judgment
enforced two separate easements pertaining to the same roadway in favor of
defendant, and permanently enjoined plaintiff from obstructing access to the
roadway by defendant or its condominium residents. Plaintiff also appeals from
an April 3, 2025 order, which disposed of the parties' remaining claims. In light
of applicable legal principles, we vacate the partial grant of summary judgment
in favor of defendant and remand for further proceedings in accordance with this
opinion.
I.
A.
1. The Easements
The crux of the parties' dispute surrounds the scope of defendant's
authorized use of Palisadium Drive (or the roadway),1 which runs through
1 Palisadium Drive is at times throughout the record alternatively referenced as "the service access way" or "Tower Drive." We understand these references indicate the same road. A-2894-24 2 plaintiff's property and connects defendant's contiguous property to a main road,
Palisade Avenue. Specifically, Palisadium Drive, a paved roadway without
sidewalks, provides the only access to the front entrance of plaintiff's wedding
venue, which sits between the public roadway and the rear entrance to the North
Tower of Carlyle Towers Condominiums. Thus, accessing the rear entrance of
the Carlyle North Tower via Palisadium Drive necessitates passing the front and
only entrance to plaintiff's wedding venue. It is undisputed alternative access
exists to the North Tower's front entrance via a separate public roadway.
Two easements relate to Palisadium Drive. The first was created by
agreement entered in 1973 (the 1973 agreement), when the parcels of property
now individually owned by plaintiff and defendant were part of the same tract
(the Overall Tract). Specifically, in 1973, Centex Homes Corporation and 4606
Land Corporation (together, "Centex"), the then-owners of the Overall Tract,
sought to subdivide the property in preparation for the construction of multiple
condominium complexes. On August 15, 1973, to further this goal, Centex
executed a "Declaration of Easements and Operating Agreement" with an
express purpose "to create and establish certain easements, restrictions and
obligations, binding upon and inuring to the benefit of owners and operators of
A-2894-24 3 the various portions of the Overall Tract . . . in order to provide for the full and
efficient development and operation thereof."
Regarding access throughout the Overall Tract, the 1973 agreement
provided in its first paragraph:
Declarant does hereby establish and create for the benefit of the owners and operators of each and every portion of the Overall Tract, and their invitees, licensees, heirs, personal representatives, successors and assigns, and for the benefit of and burdening the various portions of the Overall Tract, mutual, reciprocal and non-exclusive easements, licenses, rights, and privileges (i) of ingress, egress, passage and use, for pedestrians and vehicles, over all interior roadways, walkways, alleys and other access areas as, if and when located and constructed on portions of Overall Tract (excluding any of the foregoing which may be located within buildings), to and from the various other portions of the Overall Tract and/or to and from any streets, roads or walkways adjoining the Overall Tract (hereinafter called the "Access Easements") and (ii) for the use, placement, maintenance, repair, relocation and replacement of all utility lines, wires, pipes, conduits and other facilities providing for sewage, drainage, water, light, power and other forms of energy, signals or services (hereinafter called the "Utility Easements") in, to, upon and over any and all portions of the Overall Tract as the same may, from time to time be constructed upon and by the owners of the various portions of the Overall Tract, subject to and upon the terms hereinafter described.
[(Emphasis added)].
A-2894-24 4 Paragraph fourteen declared the easements upon the Overall Tract "run[]
with the land," "shall be perpetual," and "create privity of contract and/or estate"
with "[e]very grantee accepting a deed to any interest in any portion of the
Overall Tract."
Paragraph fifteen provided the agreement could be "abrogated, modified,
rescinded or amended" or "alter[ed]" only by
written consent of . . . 100% of the owners of the various portions of the Overall Tract, except that with respect to each portion of the Overall Tract which is submitted to the Condominium Property Act of the State of New Jersey for a condominium apartment building there shall be required the written consent of the owners of at least 75% of the total number of apartment units in such condominium building[.]
Paragraph fifteen also required any such "alteration shall be made by a
declaration in writing executed by said owners . . . and duly recorded in the
Office of the Recorder in and for the county in which the Overall Tract is
located."
Paragraph sixteen reserved the right of the declarant, Centex,
so long as it shall be the owner of any portion of the Overall Tract, to execute and deliver a further declaration binding the portions of the Overall Tract covered thereby granting to the general public the right of vehicle and/or pedestrian access, ingress and egress to and from Palisades Avenue, to and from Lafayette
A-2894-24 5 Avenue, over any roadway constructed between two such streets.
Thereafter, on May 17, 1989, plaintiff, through its then-president, and
defendant's predecessor in interest, Cliffside Park Associates (Cliffside), entered
into an "Easement Agreement" (the 1989 agreement). At the time, Carlyle
Towers, and specifically its North Tower abutting plaintiff's property, was under
construction, and the structure on plaintiff's property was operating as a health
club, and had not yet become a wedding venue. The 1989 agreement expressly
identified plaintiff as the owner of "Tower Drive," which is undisputedly the
access road now known as Palisadium Drive. It generally stated its purpose,
declaring, "[Plaintiff] has agreed to grant to Cliffside the right to use the existing
roadway solely for vehicular ingress and egress to the North Tower service
entrance over the property owned by [plaintiff], subject to reasonable rules and
regulations to be promulgated by [plaintiff]."
The agreement further memorialized the "Grant" as follows: "[Plaintiff]
hereby grants to Cliffside a non-exclusive easement appurtenant to the Carlyle
Parcel solely for the purpose of permitting vehicular traffic over the Service
Access Way to the service entrance located in the North Tower of Carlyle
Towers." The next paragraph conferred plaintiff's "Right of Closure," clarifying
the grant "shall in no wise be construed to grant rights not otherwise expressly
A-2894-24 6 set forth in this agreement," and "to this end, [plaintiff] shall have the right to
close the Service Access Way . . . to preclude any claim of prescriptive rights or
adverse possession."
In separate paragraphs, the agreement required Cliffside to maintain its
property bordering the roadway in a "neat, clean, and attractive manner," and,
at plaintiff's request, to "maintain, at its cost, public liability and property
damage insurance in amounts reasonably acceptable to [plaintiff]" and that such
insurance shall name plaintiff as "co-insureds." The agreement designated the
easements and rights created by them "shall be perpetual and run with the
Carlyle Parcel" and be "binding upon the owners of the respective parties, their
successors and assigns."
2. Borough Involvement
In 2014, the Borough of Cliffside Park (the Borough) established a fire
lane and loading zone at the end of Palisadium Drive adjacent to the North
Tower's rear entrance.2 It is unclear from the record precisely what precipitated
2 The parties concur the fire lane/loading zone action taken by the Borough arose from the fire official's initiative and attempt to address informally disputes between the parties concerning Palisadium Drive access. Although described as a "mediation" by defendant's attorney in argument before the trial court, the parties have not provided any information concerning the proceedings or the parties' respective positions relative to ownership or existing access rights to
A-2894-24 7 the Borough's action. In a 2014 letter from the Borough Fire Prevention Bureau
to the borough attorney, the fire lanes were described by specific location for
the purpose of "provid[ing] access to the public way from the Interior of Carlyle
Towers." The letter also memorialized "a loading zone . . . [to] be used by the
Carlyle Towers for moving items in [and] out of building." A related September
3, 2014 letter from the Borough Fire Official to plaintiff and "Carlyle Towers,"
stated the loading zones and fire lanes were deemed effective September 8, 2014
and expressed the "hope that all parties involved will follow the rules and
cooperate with each other and the municipality."
In 2023, disputes between the parties related to Palisadium Drive
continued. Plaintiff alleged misuse of the roadway, in particular by pedestrian
traffic and dog walking by defendant's residents, leaving dog excrement along
the property and entrance to the wedding venue. Defendant complained
condominium residents were harassed and blocked from use and access of the
roadway.
For specific reasons unclear from the record, the Borough's attorney sent
plaintiff a letter dated May 8, 2023 regarding "Fire Lanes," referencing both the
Palisadium Drive at the time. Before the trial court, plaintiff disputed the Borough's action resulted from an agreement between the parties. A-2894-24 8 1973 and 1989 agreements pertaining to Palisadium Drive. The letter stated,
"Although [Palisadium Drive] is owned by your company, the Borough paves,
salts, and maintains the roadway to assist all residents and business invitees to
the Palisadium and Carlyle. Additionally, the easement grants [defendant]'s
residents and visitors access over your property." The letter then instructed,
"you must cease and desist from precluding Carlyle residents access to the
roadway . . . or hampering Borough Officials in addressing fire safety needs and
Fire Lane Markups."
B.
1. Complaint and Motions for Summary Judgment
In March 2023, plaintiff filed a complaint in the Law Division related to
the parties' ongoing dispute over Palisadium Drive. Count one sought
termination of the prior easement agreements, and count two an injunction to
prevent defendant's residents from using Palisadium Drive. Count three alleged
defendant breached the covenants of good faith and fair dealing by exceeding
lawful access beyond that permitted by the 1989 agreement; and count four
alleged breach of contract for defendant's failure to secure insurance for
Palisadium Drive as required by the 1989 agreement.
A-2894-24 9 Defendant filed an answer and counterclaim asserting six counts: count
one sought specific performance for "breach of easement in a loading zone";
count two alleged a breach of the covenant of good faith and fair dealing based
on plaintiff's "alleged harassment"; count three alleged nuisance based on
plaintiff's "continual harassment" of Carlyle residents; count four alleged a
deprivation of property rights; count five alleged tortious interference, also
based on plaintiff's harassment; and count six sought declaratory judgment that
the 1973 agreement controlled the easement property.
At the close of discovery, both parties moved for summary judgment. The
record before the motion court included the 1973 and 1989 agreements, the 2023
letter from the Borough, and deposition excerpts from Shella Abadi, plaintiff's
representative, and Sandra Morse, defendant's property manager. At deposition,
Abadi explained her husband and other family members have owned the LLC
that holds the Palisadium property since 2005, and began management of the
property and the wedding venue located on it in 2007. She indicated the venue
is under new management, but she continues to address "building issues"
concerning the property. She described Palisadium Drive as a private roadway,
but denied blocking pedestrian use of Palisadium Drive by residents of Carlyle
Towers, adding that she only objected to pedestrians walking their dogs. She
A-2894-24 10 expressed her concern is for the wedding venue where food is served, describing
venue staff is required to spend hours cleaning up dog feces on plaintiff's
property. She refused to speak about a specific encounter with a Carlyle
resident.
Morse testified she worked for defendant for twelve years, holding the
position of property manager for three. She understood Carlyle Towers
residents had the right to use Palisadium Drive for "vehicular and pedestrian
traffic," but could not identify the source of that right. When shown pictures of
vehicles and pedestrians walking dogs of Palisadium Drive, Morse testified
some were Carlyle residents, but she could not identify others with certainty.
She also indicated she was unaware whether defendant insured or maintained
Palisadium Drive pursuant to the 1989 agreement.
At oral argument, the court initially inquired whether ownership of
Palisadium Drive was disputed. Defendant responded by questioning plaintiff's
ownership, citing the Borough's maintenance of the roadway. Plaintiff argued
it owned the roadway, citing the 1989 agreement acknowledging its ownership,
and alleging it could only grant an easement as it had if it owned the property.
Plaintiff asserted the establishment of fire lanes and loading zones did not
"negate[] ownership," likening Palisadium Drive to "any commercial parking
A-2894-24 11 lot" for which the Borough has the right to establish fire lanes and loading zones.
Plaintiff also averred the Borough occasionally maintains Palisadium Drive, but
plaintiff also maintains the property by, for example, shoveling snow.
The court stated, "I'm not sure whether ownership is necessarily a
dispositive issue right now. We're talking about easements." The court then
instructed the parties to begin oral argument concerning the access dispute.
Plaintiff clarified it was seeking an order declaring the 1989 agreement
controls Palisadium Drive and restricts defendant's use "solely to access for
vehicular traffic over the service access way to the service entrance located in
[Carlyle Towers]." Additionally, plaintiff requested a declaration that
defendant's use of the easement property is conditioned upon "[defendant's]
provision of adequate insurance."
Plaintiff claimed the 1989 agreement, rather than the 1973 agreement,
controlled defendant's access to Palisadium Drive because the second easement
was executed around the time Carlyle Towers was completed, and plaintiff
would not have allowed pedestrian traffic at and around its wedding venue
entrance. Plaintiff disputed defendant's reliance on the 1973 agreement, arguing
A-2894-24 12 that easement permitted pedestrian traffic for "maintenance and construction of
tennis courts," "long ago" completed.3
Plaintiff emphasized the 1989 agreement's language expressly restricted
access to use "[s]olely for vehicular ingress and egress" and "solely for vehicular
access." Thus, plaintiff argued defendant violated the 1989 agreement by
overburdening the roadway, allowing its residents to walk on and through
Palisadium Drive and their dogs to defecate by the wedding venue, and failing
to procure insurance listing plaintiff as "co-insured."
Defendant conceded it would provide insurance, although emphasizing
plaintiff never requested defendant secure insurance until filing its complaint.
3 Paragraph five of the 1973 agreement contained a separate paragraph referencing the construction of tennis courts, stating in relevant part:
Anything herein or elsewhere to the contrary notwithstanding there is hereby granted the right to the owner of the Palisadium, to erect one or more but not more than three tennis courts on the land of Towers 200 and/or any other portion of the Overall Tract . . . . At this writing Centex is the owner of the Palisadium. In the event that the ownership of the same shall change prior to the erection of all three tennis courts on the Overall Tract, then the owner of the Palisadium is precluded from exercising any of the rights granted in the within paragraph without the prior written consent of Centex, and any act in derogation hereof shall be null and void. A-2894-24 13 Defendant then argued the 1989 agreement does not supersede, and is not
inconsistent with, the 1973 agreement. It contended the 1973 agreement is the
only document that controls access because there is no indication regarding who
entered into the 1989 agreement, which was never ultimately recorded in
defendant's master deed.
Defendant further argued it has "no control over who uses that street"
because, for decades, Carlyle residents and pedestrians from other buildings
have used Palisadium Drive, in particular to access the gym on plaintiff's
property prior to its replacement with a wedding venue. According to defendant,
there came a point when plaintiff began obstructing access, stopping and
interfering with those using the roadways. Defendant also indicated plaintiff
fails to utilize the parking garage and instead parks vehicles in the fire lanes
during events.
2. The Court's Decision
The court then stated its findings. It first framed the access issue, stating,
"[Plaintiff] maintains that [Palisadium Drive] is not a public property . . . but
instead is owned by [plaintiff]. [Defendant] maintains the roadway is a public
road shared by both [plaintiff] and [defendant] . . . and that it is maintained by
the [B]orough."
A-2894-24 14 After citing the summary judgment standard and applicable law, the court
noted "there are some material facts in this matter not in dispute." The court
found it undisputed that there were two easements "at issue" in this case : "the
1973 easement over the parcel and the 1989 easement providing, among other
things, vehicular access over the service way." The court also found it
"undisputed" that the Borough in 2014, "created a fire zone along the wall" by
the Carlyle Towers entrance, and "a loading zone on the west side of the roadway
from the point of the end of the gate from the parking garage of the Palisadium."
The court also referenced the 2023 letter from the Borough, noting it lacked
"force of law," but was "evidentiary in nature as to the understanding of the
[B]orough regarding the relationship of the parties."
The court found defendant "has allowed its residents, invitees and vendors
to use the area for pedestrian traffic, dog walking, parking and construction -
related activities." Specifically, the court found Carlyle Towers residents use
the back entrance to the North Tower building, often exiting from there to walk
their dogs on Palisadium Drive. However, the court found questions of fact
remained "regarding who is using the service walkway," rendering the court
unable to "conclude that the use of the service area is solely by [defendant]."
A-2894-24 15 The court noted, when the 1973 agreement was entered, new construction
was underway on the Overall Tract, and "the intent was that the various parcels
that would ultimately comprise the [Overall Tract] . . . would work together."
The court concluded, "the 1973 easement was clear in that regard and permitted
pedestrian and vehicular access in accordance with the 1973 easement."
However, the court noted the master deed was not in the record, and thus found
"the 1989 easement is not void. The parties have been operating consistent with
the 1989 easement since the period of time that it was recorded or drafted, that
over [thirty] years have passed since that time."
The court then reconciled the two agreements as not in conflict,
interpreting the 1989 agreement as "not expressly extinguish[ing] any rights of
ingress or egress or pedestrian access granted under the 1973 easement," but
instead "also provid[ing] vehicular access to the Carlyle over the service way."
As to plaintiff's argument that the 1989 agreement's language changes the
permitted access and limits use "solely" to vehicle traffic, the court stated there
was no process undertaken to "modify, abrogate, or alter the terms of the 1973
agreement, which the court f[ound] to be clear and unambiguous."
Further, the court noted "the 1989 easement was clarified in 2014 using
the mediation efforts of the Borough, which ultimately resulted in the creation
A-2894-24 16 of a loading and fire zone to the benefit of both [plaintiff] and [defendant]." The
court concluded:
[T]he 1973 easement is valid, as is the 198[9] easement, and that the parties are required to abide by the terms of each, as well as the terms of the . . . 2014 mediation result, memorialized in the memorandum of July 10th, 2014 to [the] borough attorney . . . regarding fire lanes, roadway, Palisadium Drive[.]
The court added, the agreements "are not so different that [the] 1989 easement
would necessarily supersede or extinguish the 1973 [easement]" and thus
entered partial summary judgment in favor of defendant.
Regarding the parties' remaining arguments and claims, the court found
questions of fact existed regarding the nature of "vehicular access and parking
in the area," "pedestrian access," and "the insurance . . . arrangements in
connection with the 1989 easement," specifically, "whether or not the insurance
was insisted on by [plaintiff] or not historically; whether or not the insurance
was procured; whether or not the insurance requirement is, in fact, waived given
the amount of time this agreement has been in play." It further found disputes
concerning actions allegedly taken by plaintiff to obstruct or prevent use of the
roadway and plaintiff's claims of defendant's misuse of the roadway impacting
its wedding venue. Accordingly, the court granted defendant partial summary
A-2894-24 17 judgment on defendant's counterclaim for declaratory judgment, and denied
summary judgment on the remaining claims.
On April 3, 2025, the court issued a consent order, noting the parties
"agreed" to dismiss "[a]ll remaining claims, counterclaims, and defenses ."
Defendant reserved its "right to appeal with regard to reinstating its
counterclaims" in the event plaintiff appealed. The order directed defendant
provide to plaintiff "proof of current insurance coverage naming [plaintiff] as
an additional insured in accordance with the 1989 [e]asement." Finally, the
order provided for vacatur if either summary judgment order "is vacated or
reversed on appeal."
II.
Plaintiff appeals from both summary judgment orders. Plaintiff argues
the court erred in denying its motion for summary judgment and partially
granting defendant's because: (1) the court improperly construed the 1973
agreement too broadly, as its language limited easements to use necessary for
construction and maintenance of the Overall Tract, and the court's interpretation
renders other provisions in that easement and the 1989 agreement, superfluous;
(2) alternatively, even assuming the 1973 agreement provided for residential
pedestrian access, granting summary judgment at this juncture was improper
A-2894-24 18 because a material conflict exists between the two easements creating genuine
issues of material fact as to whether the 1989 agreement superseded the 1973
agreement; (3) the court improperly relied on the non-party Borough's past
informal determinations of the respective rights, which are not binding or
relevant to the court's decision; (4) the court erred in granting defendant
declaratory judgment under the Declaratory Judgment Act, specifically because
the court's granting declaratory judgment failed to "remove uncertainty as to the
relationship between the [two easements]"; and (5) the court "failed to award
[plaintiff] summary judgment" because defendant breached the insurance
provision of the 1989 agreement by failing to obtain insurance naming plaintiff
as "co-insured."
"We review de novo the trial court's order granting summary judgment
and are guided by the same standards that governed its decision." Boyle v. Huff,
257 N.J. 468, 477 (2024). A court must grant summary judgment "if the
pleadings, depositions, answers to interrogatories and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact challenged and that the moving party is entitled to a judgment or
order as a matter of law." R. 4:46-2(c). "To decide whether a genuine issue of
A-2894-24 19 material fact exists, the trial court must 'draw[] all legitimate inferences from
the facts in favor of the non-moving party.'" Friedman v. Martinez, 242 N.J.
450, 472 (2020) (alteration in original) (quoting Globe Motor Co. v. Igdalev,
225 N.J. 469, 480 (2016)). "The court's function is not 'to weigh the evidence
and determine the truth of the matter but to determine whether there is a genuine
issue for trial.'" Rios v. Meda Pharm., Inc., 247 N.J. 1, 13 (2021) (quoting Brill
v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). "In the absence of
a factual dispute, we review the interpretation of a contract de novo." Serico v.
Rothberg, 234 N.J. 168, 178 (2018).
"An easement creates a non-possessory right to enter and use land in the
possession of another and obligates the possessor not to interfere with the uses
authorized by the easement." Caribbean House, Inc. v. N. Hudson Yacht Club,
434 N.J. Super. 220, 226 (App. Div. 2013). "An easement appurtenant is created
when the owner of one parcel of property (the servient estate) gives rights
regarding that property to the owner of an adjacent property (the dominant
estate)." Rosen v. Keeler, 411 N.J. Super. 439, 450 (App. Div. 2010).
Easements can be created by implication, express conveyance, or prescription.
Leach v. Anderl, 218 N.J. Super. 18, 24 (App. Div. 1987). And, an easement
A-2894-24 20 "cannot exist separate from the land itself." Vill. of Ridgewood v. Bolger
Found., 104 N.J. 337, 340 (1986).
Easement agreements are analyzed under principles of contract
interpretation. Borough of Princeton v. Bd. of Chosen Freeholders of the Cnty.
of Mercer, 333 N.J. Super. 310, 324-25 (App. Div. 2000). Under such
principles, "[c]ourts enforce contracts 'based on the intent of the parties, the
express terms of the contract, surrounding circumstances and the underlying
purpose of the contract.'" Manahawkin Convalescent v. O'Neill, 217 N.J. 99,
118 (2014) (quoting Caruso v. Ravenswood Devs., Inc., 337 N.J. Super. 499,
506 (App. Div. 2001)). We refrain from interpreting a provision in a way that
"would render another provision meaningless." Homesite Ins. Co. v. Hindman,
413 N.J. Super. 41, 47 (App. Div. 2010).
To determine the extent of the rights conveyed under an easement, courts
look to the intent of the conveyor, and, "the intent of the conveyor is normally
determined by the language of the conveyance read as an entirety and in the light
of the surrounding circumstances." Khalil v. Motwani, 376 N.J. Super. 496, 503
(App. Div. 2005) (quoting Hammett v. Rosensohn, 26 N.J. 415, 423 (1958)).
When the terms of an easement are unambiguous and "the intent of the parties
is evident," the "terms of the instrument govern." Rosen, 411 N.J. Super. at 451.
A-2894-24 21 Applying these well-settled principles in view of the summary judgment
record, we first address and reject plaintiff's argument that the court erred in
denying plaintiff judgment based upon an incorrect and overly broad
interpretation of the 1973 agreement's language. As the court correctly noted,
Centex, as owner of the then-undeveloped Overall Tract, stated its purpose in
issuing its "declaration of easements and operating agreement," before the
numbered provisions that followed, "to create and establish certain easements,
restrictions and obligations, binding upon and inuring to the benefit of owners
and operators of the various portions of the Overall Tract . . . in order to provide
for the full and efficient development and operation thereof."
Immediately following, in paragraph one, Centex clarified the "access
easement" provides a right of use by "pedestrians and vehicles" over roadways
on portions of the Overall Tract. The access provision unambiguously extends
to "owners" "of every portion of the Overall Tract," and their "invitees,
licensees, heirs, personal representatives, successors and assigns," the right "of
ingress, egress, passage and use, for pedestrians and vehicles, over all interior
roadways . . . constructed on portions of the Overall Tract." (Emphasis added).
Palisadium Drive is a constructed roadway on the overall tract.
A-2894-24 22 Although it is true that the 1973 agreement also creates by separate
paragraph a "utility easement" that allows for the "construction" of utilities, the
separately standing access easement contains no limiting reference to
maintenance or construction. We do not interpret the utility provision allowing
access to traffic by construction and maintenance personnel to negate or govern
the separately granted easements for general pedestrian and vehicular access
throughout the Overall Tract. Indeed, the "Declaration of Easements," plural,
creates various rights of access. (Emphasis added). As such, we perceive no
merit to plaintiff's contention the 1973 agreement pertained only to construction
on the Overall Tract.
We are also not persuaded the motion court's interpretation of the access
easement in paragraph one renders superfluous paragraph sixteen, which
provides Centex the right as the owner to later "execute and deliver a further
declaration binding the portions of the Overall Tract covered thereby granting
to the general public the right of vehicle and/or pedestrian access" over
roadways within the Overall Tract. The provision allowing Centex the future
discretion to make access grants to "the general public" is separate and distinct
from the provision extending access rights to "owners." Thus, we do not
A-2894-24 23 construe paragraph sixteen as duplicative of the access easement provided to
"owners" in paragraph one.
We also reject plaintiff's claim that the rights granted in the access
easement do not apply to Carlyle Towers residents. In Khalil, we held, "In a
given context, a listing of persons or things should not be precisely limited to
those expressly mentioned but may also include, by implication, other persons
or things similarly situated." 376 N.J. Super. at 506 (citing Reilly v. Ozzard, 33
N.J. 529, 539 (1960)). As to whether one is similarly situated, "[t]he issue is
one of intention [and][t]he answer resides in the common sense of the situation."
Ibid. (alterations in original) (quoting Reilly, 33 N.J. at 539). Here, the 1973
agreement was executed while the Overall Tract included condominium
buildings. Therefore, in line with our decision in Khalil, we similarly determine
that the 1973 agreement's grant to "owners" and their "invitees, licensees, heirs,
personal representatives, successors and assigns" includes Carlyle Towers
residents.
Beyond our aligned interpretation of the nature and scope of the 1973
agreement, our agreement with the trial court ends. Specifically, we are not
persuaded the two easements, so clearly dissonant on their faces, can be
A-2894-24 24 harmonized on the present record. Thus, we are unable to conclude the grant of
partial summary judgment was proper.
Generally, a contract supersedes an "earlier contract and becomes the only
agreement on the part of the parties on the subject matter" if the later contract
"cover[s] the same subject matter and [is] made by the same parties, but
contain[s] terms inconsistent with the former contract so that the two cannot
stand together." Rosenberg v. D. Kaltman & Co., 28 N.J. Super. 459, 463-64
(Ch. Div. 1953); see also Corbin on Contracts § 71.1 (rev. ed. 2021) (stating that
when analyzing two contracts, a court must look at "the two contracts together"
and, "[i]nsofar as they are inconsistent, the later one prevails; the remainder of
the first contract, if consistent with the second in substance and in purpose, can
be enforced").
Here, the 1973 access easement allowed for pedestrian traffic over all
roadways within the Overall Tract. The 1989 agreement, pertaining only to
Palisadium Drive and "solely" permitting vehicular traffic, does not. We cannot
agree with the motion court's finding the 1989 easement merely "also provides
vehicular access" over Palisadium Drive in addition to pedestrian access.
(Emphasis added). "Solely" is not an ambiguous term; it is not susceptible to
more than one reasonable interpretation. See Powell v. Alemaz, Inc., 335 N.J.
A-2894-24 25 Super. 33, 44 (App. Div. 2000). Instead "solely" means "to the exclusion of all
else" or "without another." Merriam-Webster's Collegiate Dictionary 1503
(12th ed. 2025). Therefore, on its face, the 1989 agreement's language defining
its scope as "solely for the purpose of permitting access to vehicular traffic"
grants a right to vehicular traffic "to the exclusion of" other forms of traffic. To
read the 1989 agreement as merely reiterating vehicles are permitted to utilize
Palisadium Drive, along with pedestrian traffic, would render the 1989
agreement "meaningless." See Homesite Ins. Co., 413 N.J. Super. at 47.
We are satisfied the 1973 access easement agreement and the 1989
easement agreement conflict to a degree "the two cannot stand together." See
Rosenberg, 28 N.J. Super. at 463. The trial court erroneously reconciled the two
agreements, without vital information concerning the intent underlying the 1989
agreement. Accordingly, we are constrained to vacate the order granting partial
summary judgment in favor of defendants and remand for further proceedings.
Specifically, remand is required to determine the intent and circumstances
surrounding the 1989 agreement, the parties to it, and the genesis of it, and
whether those circumstances evidence an intent to limit defendant's residents'
pedestrian access to Palisadium Drive. Given the conflict between the two
provisions, inquiry beyond the 1989 easement's language to glean the parties'
A-2894-24 26 intent is proper, as intent is derived from the language of the conveyance in light
of surrounding circumstances. See Khalil, 376 N.J. Super. at 503 (quoting
Hammett, 26 N.J. at 423).
Additionally, on remand the court should determine the owner of
Palisadium Drive at the time of the 1989 agreement. Critically, only an owner
of property can grant an easement over it. Ownership is anything but immaterial,
and the parties disputed ownership of the roadway. Further, consideration
should be given to the modification language in the 1973 agreement, requiring
the consent of the owners of the "various portions of the Overall Tract" as it
pertains to the validity of the 1989 agreement. We do not suggest the outcome
of these issues.
Given our determination, we also affirm the court's order denying
plaintiff's motion for summary judgment, and, accordingly, vacate the April 3,
2025 consent order, as required under its own terms.
Affirmed in part, vacated and remanded in part. We do not retain
jurisdiction.
A-2894-24 27