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The Declaration expressly provides that the recreational and communal facilities should benefit and provide enjoyment for Radburn residents. Furthermore, all Radburn residents pay an annual assessment to the Association to be used at its discretion within Radburn "for the benefit of the residents" and "for the enhancement of education, recreation, social life, and community welfare . . . ." These assessments are at least partially used for maintenance and upkeep of the common areas, and the interest in the common areas shared by all Radburn residents is sufficient to satisfy PREDFDA's requirement that a PRED "provid[e] for common or shared elements or interests in real property." N.J.S.A. 45:22A-23h.
The Court has long noted that the "universal character" of a "common neighborhood plan" is based on the existence of "reciprocal or mutual burdens and benefits shared by each lot owner . . . ." Weinstein v. Swartz, 3 N.J. 80, 86 (1949). In such cases, "[t]here must be a clear intent to establish a neighborhood scheme of restrictions[,]" which, in order to be enforceable, must be universal, reciprocal and reasonably uniform although not necessarily identical. Olson v. Jantausch, 44 N.J. Super. 380, 386 (App. Div. 1957). Radburn's Declaration of Restrictions, to which each property in the community is subject, establishes the existence of a common neighborhood plan.
The Restatement (Third) of Property: Servitudes (Restatement) 1.8 (2000), defines a "common-interest community" as:
[A] real estate development or neighborhood in which individually owned lots or units are burdened by a servitude that imposes an obligation that cannot be avoided by nonuse or withdrawal
(1) to pay for the use of, or contribute to the maintenance of, property held or enjoyed in common by the individual owners, or
(2) to pay dues or assessments to an association that provides services or facilities to the common property or to the individually owned property, or that enforces other servitudes burdening the property in the development or neighborhood.
One of the comments following this section further explains the requirements for a common-interest community:
Most common-interest communities have both commonly held property and mandatory-membership associations, but the existence of either is sufficient to constitute the property bound by the servitude requiring payment to a common-interest community. The distinctive feature of a common-interest community is the obligation that binds the owners of individual lots or units to contribute to the support of common property, or other facilities, or to support the activities of an association, whether or not the owner uses the common property or facilities, or agrees to join the association. Most common-interest communities are created by a declaration, which not only imposes the servitudes, but also provides automatic and mandatory membership in an association of property owners. Such a provision is not a prerequisite for inclusion in the definition of a common-interest community as used in this Restatement, however. If the property owners are obligated by virtue of a servitude to contribute to maintenance of common property, to the provision of services or facilities, or to pay for enforcement of covenants, or other activity, whether or not they use the common property or facility, or receive any benefit from the enforcement effort or other activity, they are part of a common-interest community. Property subject to such obligations is part of a common-interest community even though no association has been created, or membership in the association is voluntary.
[Ibid. at comment c. (emphasis added).]
The Restatement supports the conclusion that Radburn, which contains commonly enjoyed property and requires payment of assessments by residents for care of this property, is a common- interest community. All of the attributes described in the Restatement are present here. Judge Contillo correctly concluded that Radburn is a PRED in the context of PREDFDA.
Radburn is a Common-Interest Community that is regulated under the NJ Planned Real Estate Development Full Disclosure Act (PREDFDA)
Although Radburn residents who are not members of the Association do not have an ownership interest in the common parks, buildings and other amenities, they do have a shared interest in them.