Neighborhood Assn., Inc. v. Limberger ( 2016 )

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THE NEIGHBORHOOD ASSOCIATION, INC. v. JILL M.
LIMBERGER ET AL.
(SC 19509)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued November 5, 2015—officially released April 26, 2016
Keith Yagaloff, for the appellant (named defendant).
Kristie Leff, with whom was Ronald J. Barba, for
the appellee (plaintiff).
Opinion
McDONALD, J. Under Connecticut’s Common Inter-
est Ownership Act (act), General Statutes § 47-200 et
seq., the executive board of a common interest commu-
nity may commence an action against a unit owner to
foreclose a lien for common charges under specified
conditions, including that it either has voted to institute
the particular foreclosure proceeding or has previously
adopted a standard foreclosure policy under which that
foreclosure would be authorized. General Statutes (Rev.
to 2011) § 47-258 (m) (3).1 The present case requires us
to determine whether a standard foreclosure policy is
a ‘‘rule’’ subject to the act’s notice and comment require-
ments and, if so, whether the failure to adhere to those
procedural requirements is a jurisdictional defect. The
defendant Jill M. Limberger2 appeals3 from the judgment
of foreclosure by sale rendered by the trial court in
favor of the plaintiff, The Neighborhood Association,
Inc. The dispositive issue on appeal is whether the trial
court properly concluded that the plaintiff’s standard
foreclosure policy is an ‘‘internal business operating
procedure’’—not a rule—and, thus, not subject to the
notice and comment requirements for a rule. See Gen-
eral Statutes § 47-261b. We conclude that the standard
foreclosure policy is a rule and that the rule-making
requirements are jurisdictional. Accordingly, we
reverse the judgment of the trial court with direction
to dismiss the plaintiff’s action.
The record reveals the following undisputed facts
and procedural history. The defendant owns a condo-
minium unit in The Neighborhood, a common interest
community subject to the provisions of the act. The
plaintiff is the homeowner’s association for The Neigh-
borhood. The plaintiff acts through its executive board
(board), which is elected by the plaintiff’s members.
The board’s powers are defined by ‘‘The Declaration
of The Neighborhood’’ (declaration). The declaration
gives the board the power to, inter alia, adopt and
amend bylaws, rules and regulations, collect assess-
ments for common expenses, engage in litigation, and
impose late fees and other charges.
In 2010, the board adopted a ‘‘Standard Foreclosure
Policy’’ by way of resolution (2010 policy). That policy
authorized the plaintiff’s attorney to commence a fore-
closure action if, within thirty days of a written demand,
(1) the unit owner failed to either bring his or her
account current or agree to and follow a payment plan
that would bring the account current within six months,
and (2) the unit owner owed a sum equal to or greater
than two months common charges. According to the
plaintiff’s property manager, this policy was solely an
‘‘internal document . . . .’’
On advice of new counsel, in March, 2011, the board
voted to adopt a different policy (2011 policy). The 2011
policy provides that it is being adopted as the plaintiff’s
‘‘ ‘standard collection policy’ pursuant to . . . § 47-258
(m).’’ The 2011 policy differs in various respects from
the 2010 policy. Like its predecessor, however, the 2011
policy authorizes the board’s attorney to commence a
foreclosure action if a unit owner owes an amount equal
to or greater than two months common charges. The
policy further provides, inter alia: ‘‘Homeowners are
expected to pay their monthly common expenses on
the first of each month and to maintain a zero balance.
If there is a balance due equal to two . . . months of
common expenses it will be referred to counsel for
foreclosure. . . . [H]omeowners will be responsible
for any attorney’s fees and collection costs incurred to
collect or in attempting to collect outstanding [c]om-
mon [e]xpenses including a [$225] attorney’s fee for the
initial demand letter which amount may change from
time to time.’’ The policy then prescribes the order in
which any payments received will be applied to the
various components of the debt, with the oldest
monthly common expenses paid first, interest paid sec-
ond, late fees paid third, outstanding fines paid fourth,
special assessments paid fifth, and attorney’s fees and
other collection costs paid last. The board neither noti-
fied unit owners that the policy would be considered at
its March, 2011 meeting nor thereafter gave unit owners
notice that it had adopted the policy.
The plaintiff subsequently commenced the present
action against the defendant, seeking to foreclose a
statutory lien for allegedly delinquent common
expenses, attorney’s fees, and other costs. The defen-
dant filed a motion to dismiss the action on the ground
that the court lacked subject matter jurisdiction due
to, inter alia, the plaintiff’s failure either to vote to
commence a foreclosure action against the defendant’s
unit or to adopt a standard foreclosure policy pursuant
to the notice and comment requirements of the act. The
plaintiff opposed the motion, claiming that its policy
was an internal business operating procedure, not a
rule, and therefore it was not subject to the notice and
comment procedures for rules.
After an evidentiary hearing, the trial court, Sfer-
razza, J., denied the defendant’s motion to dismiss.
The court concluded that the board was not required
to give unit owners notice of the policy because the
policy was an internal business operating procedure.
The court rejected the literal meaning of rule as defined
in the act, which includes a policy that governs the
‘‘conduct of persons’’; General Statutes § 47-202 (31);
reasoning that such an ‘‘expansive interpretation . . .
would subsume the exemption of [internal business
operating procedures] because every operating proce-
dure entails the regulation of persons to some extent.’’
Instead, the trial court adopted a narrower interpreta-
tion under which ‘‘the definition of ‘rule’ is aimed at
the conduct of residents and visitors of condominium
units and the use and appearance of the physical facil-
ity . . . .’’
The case then proceeded to trial before the court.
Following trial, the court, Hon. Lawrence C. Klaczak,
judge trial referee, rendered judgment for the plaintiff
and, subsequently, the court, Sferrazza, J., entered a
judgment of foreclosure by sale. This appeal followed.
The defendant’s dispositive claim is that the trial
court improperly denied her motion to dismiss because
it improperly concluded that the board’s policy is an
internal business operating procedure rather than a
rule. Specifically, the defendant contends that her inter-
pretation is supported by the following four factors: (1)
the plain meaning of the words ‘‘adopt’’ and ‘‘policy’’; (2)
comments to the Uniform Common Interest Ownership
Act of 2008 (uniform act), on which our act is modeled;
(3) comments to the Uniform Common Interest Owners
Bill of Rights Act; and (4) the purpose behind the rele-
vant sections of the act, which she asserts is to protect
unit owners. See Unif. Common Interest Ownership Act
of 2008, § 1-103, comment (28), 7 U.L.A. (Pt. 1B) 246
(2009); Unif. Common Interest Owners Bill of Rights
Act, § 2, comment (7), 7 U.L.A. (Pt. 1B) 189–90 (2009).
In addition, the defendant contends that the failure to
comply with the procedures for properly adopting a
rule is a jurisdictional defect. The plaintiff responds
that the trial court properly ascribed a common sense
and contextual meaning to ‘‘rule.’’ It asserts that,
because its policy directs the conduct of its counsel, not
unit owners and their visitors, it is an internal business
operating procedure. We agree with the defendant that
the policy is a rule and that failure to adopt such a rule
in accordance with the notice and comment require-
ments is a jurisdictional defect.
Our standard of review following a trial court’s ruling
on a motion to dismiss is plenary as to its ultimate legal
conclusion. Dorry v. Garden, 313 Conn. 516, 521, 98
A.3d 55 (2014); see id., 521–24 (explaining scope of
inquiry differs depending on status of record, whether
evidentiary hearing is required and other considera-
tions). In resolving the specific question in this case,
we apply our well established principles of statutory
construction. See General Statutes § 1-2z (setting forth
plain meaning rule); Teresa T. v. Ragaglia, 272 Conn.
734, 742, 865 A.2d 428 (2005) (‘‘[w]hen a statute is not
plain and unambiguous, we also seek interpretive guid-
ance from the legislative history of the statute and the
circumstances surrounding its enactment, the legisla-
tive policy it was designed to implement, the statute’s
relationship to existing legislation and common-law
principles governing the same general subject matter’’).
I
We begin with the substantive question of whether
a standard foreclosure policy is a rule, because if it is
not, there clearly is no potential jurisdictional defect.
To answer that question, we examine the relevant provi-
sions of the act.
Section 47-258 addresses common interest commu-
nity liens and their enforcement. An association has a
statutory lien on a unit for common charges and other
assessments attributable to the unit imposed against
its unit owner. General Statutes (Rev. to 2011) § 47-258
(a). Such liens may be foreclosed ‘‘in like manner as a
mortgage on real property.’’ General Statutes (Rev. to
2011) § 47-258 (j). General Statutes (Rev. to 2011) § 47-
258 (m) prescribes three conditions that must be met
before such an action may be commenced: ‘‘An associa-
tion may not commence an action to foreclose a lien
on a unit under this section unless: (1) The unit owner,
at the time the action is commenced, owes a sum equal
to at least two months of common expense assessments
based on the periodic budget last adopted by the associ-
ation . . . (2) the association has made a demand for
payment in a record . . . and (3) the executive board
has either voted to commence a foreclosure action spe-
cifically against that unit or has adopted a standard
policy that provides for foreclosure against that unit.’’
Section 47-258 does not, however, prescribe the proce-
dure for adopting a standard foreclosure policy.
What procedure, if any, is required under the act
turns on the meaning of General Statutes § 47-261b and
the relevant definitions of the key terms therein. The
principal subject of § 47-261b is unit owners’ associa-
tion (association) rules. Subsection (a) of § 47-261b
requires a board to give unit owners notice of its inten-
tion to adopt, amend or repeal a rule as well as the
opportunity to comment on the proposed change. Sub-
section (b) requires an association to give unit owners
notice of a board’s subsequent action on the rule and
a copy of any new or amended rule. Subsections (c)
through (f) prescribe limitations on certain matters that
the association may address in a rule. For example,
subsection (d) provides that an association may not
prohibit the display of state flags or signs for candidates
for election, but may adopt rules governing the time,
place, size, number, and manner of such displays.4
Finally, subsection (g) provides that an ‘‘association’s
internal business operating procedures need not be
adopted as rules.’’
A standard foreclosure policy is not designated
expressly as either an internal business operating proce-
dure or a rule. The act does not define ‘‘internal business
operating procedures.’’ A rule, however, is defined in
expansive terms. A ‘‘ ‘[r]ule’ means a policy, guideline,
restriction, procedure or regulation of an association,
however denominated . . . which is not set forth in the
declaration or bylaws and which governs the conduct of
persons or the use or appearance of property.’’5 General
Statutes § 47-202 (31). Similarly, ‘‘ ‘[p]erson’ ’’ is expan-
sively defined as ‘‘an individual, corporation, limited
liability company, business trust, estate, trust, partner-
ship, association, joint venture, public corporation, gov-
ernment, governmental subdivision or agency,
instrumentality or any other legal or commercial
entity.’’ General Statutes § 47-202 (24).
These definitions make it abundantly clear that, even
if we were to agree with the plaintiff that its standard
foreclosure policy exclusively governs the conduct of
its attorney, the policy still would fall within the plain
meaning of a rule as defined by the act. Had the legisla-
ture intended to limit rules to those policies that govern
the conduct of unit owners or their visitors, it readily
could have done so. Instead, the legislature provided
that rules include policies that govern the conduct of
‘‘persons,’’ an all-encompassing term. General Statutes
§ 47-202 (31).
That this capacious meaning was intended is sup-
ported by concurrent actions by the legislature in 2009.
In the same public act, the legislature added the rule-
making provision; Public Acts 2009, No. 09-225, § 34
(P.A. 09-225), codified at § 47-261b; added the definition
of a rule, and amended the already broad definition of
person to make it even more comprehensive. P.A. 09-
225, § 1. In that same public act, the legislature
increased unit owners’ rights with respect to informa-
tion about and participation in board meetings, protec-
tions that would be further advanced by an expansive
interpretation of rules subject to notice and comment
requirements. See P.A. 09-225, § 25, codified at General
Statutes § 47-250.
We nevertheless recognize that application of the
literal meanings of person and rule would effectively
render the exception for internal business operating
procedures superfluous. Under a literal interpretation,
a board policy to cash checks received by the associa-
tion on Wednesdays would be a rule because it would
not be set out in the declaration or bylaws and it would
govern the conduct of the person cashing the check.
‘‘It is a basic tenet of statutory construction that the
legislature [does] not intend to enact meaningless provi-
sions. . . . Because [e]very word and phrase [of a stat-
ute] is presumed to have meaning . . . [a statute] must
be construed, if possible, such that no clause, sentence
or word is superfluous, void or insignificant.’’ (Internal
quotation marks omitted.) Lopa v. Brinker Interna-
tional, Inc., 296 Conn. 426, 433, 994 A.2d 1265 (2010).
A proper definition of rule, therefore, must give some
reasonable field of operation to the term internal busi-
ness operating procedure. At the same time, that field
of operation presumably must be quite limited in scope
given that rule is defined so broadly, internal business
operating procedure is undefined, and exceptions are
generally construed narrowly.
Accordingly, we conclude that it is appropriate to
consider extratextual sources to the extent that they
can illuminate any limiting principle. We first turn to
the legislative history of P.A. 09-225, which enacted the
relevant changes to the act. Public Act 09-225 was the
product of a study group created by the Connecticut
Law Revision Commission to consider amendments
made to the uniform act in 2008, on which our original
act was modeled. See 52 H.R. Proc., Pt. 31, 2009 Sess.,
p. 9861; Weldy v. Northbrook Condominium Assn., Inc.,
279 Conn. 728, 735, 904 A.2d 188 (2006). Representative
Gerald M. Fox III explained that the ‘‘goals of the study
committee were to provide significant new rights to
individual unit owners when dealing with the associa-
tion’s elected board of directors’’ and that the study
committee ‘‘also wanted to enhance the association’s
authority to address issues that arise in the daily life
of the common interest community . . . .’’ 52 H.R.
Proc., supra, p. 9862. Representative Arthur J. O’Neill
noted that P.A. 09-225 would provide ‘‘new protections
for unit owners facing foreclosure’’ by delaying com-
mencement of foreclosure actions. Id., p. 9866.
The prefatory note and comments to the 2008 amend-
ments to the uniform act, which contains a rules provi-
sion similar in all material respects to § 47-261b, suggest
a broader purpose for P.A. 09-225, § 34. See generally
Alvord Investment, LLC v. Zoning Board of Appeals,
282 Conn. 393, 404 n.9, 920 A.2d 1000 (2007) (citing
prefatory note to 1994 version of uniform act). The
prefatory note in the 2008 version of the uniform act
explains that there ‘‘has been considerable publicity
across the country regarding alleged abuse in the fore-
closure process when unit owners fail to pay sums
due the association. To address this specific issue, the
[uniform] [a]ct proposes new and considerable restric-
tions on the foreclosure process as it applies to common
interest communities.’’ Unif. Common Interest Owner-
ship Act of 2008, prefatory note, 7 U.L.A. (Pt. 1B) 225
(2009). The comment to the uniform act’s counterpart to
§ 47-261b further explains: ‘‘[T]he ‘association’s internal
business operating procedures need not be adopted as
rules’. This distinction permits the association’s execu-
tive board or its management company to adopt or
amend at will the wide variety of internal management
procedures that govern the association’s daily business
activities—as opposed to the conduct of persons or the
use and appearance of property. It may be helpful to
provide a few examples of what the drafters contem-
plate might be typical internal business procedures that
need not be adopted as rules:
‘‘The association wishes to solicit bids from potential
contractors for a particular [project] or service and
adopts a procedure for soliciting, reviewing and
accepting those bids.
‘‘The board approves a management contract with
an outside management company. The management
contract contains various procedures governing how
the manager is going to carry out its duties with regard
to the management of the association.
‘‘The recreation committee adopts a sign-up proce-
dure for using the pool table in the clubhouse.’’ Id., § 1-
103, comment (28), p. 246.
These extratextual sources yield the following con-
siderations. The legislative history of P.A. 09-225 sug-
gests that internal business operating procedures
cannot be policies that could lead to abuse in the fore-
closure process. The examples in the uniform act of
internal business operating procedures suggest that
such procedures would address daily business activities
and not policies that impact unit owners’ rights and
obligations, directly or indirectly.
We need not decide, however, a clear line of demarca-
tion between rules and internal business operating pro-
cedures. Instead, we need only decide into which
category standard foreclosure policies fall in light of
these limiting principles.
A comparison of the two policies adopted by the
board in the present case is instructive.6 That compari-
son demonstrates that such policies may determine: (1)
who will decide whether to commence a foreclosure
action (the 2011 policy authorizes the property manager
or the board to refer the matter to the plaintiff’s attor-
ney, whereas the 2010 policy authorizes the board only);
(2) what amount of delinquency will trigger a foreclo-
sure action (the statutory minimum or greater); (3) how
unit owner payments will be allocated to the outstand-
ing debt (principal, interest, attorney’s fees, etc.); (4) the
circumstances under which attorney’s fees will begin to
accrue; (5) the conditions under which unit owners
may avoid foreclosure following delinquency; and (6)
demand requirements before commencing foreclosure.
Indeed, the change from the 2010 policy to the 2011
policy: reduced the two written demands (one by the
association and one by the attorney) before commence-
ment of a foreclosure action to a single demand by the
attorney; eliminated the thirty day grace period to bring
the owner’s account current to avoid foreclosure; and
eliminated the option of a six month payment plan to
avoid foreclosure. Of course, because the unit owners
were never given notice of the policies, they could not
comment on whether such changes should be made.
Given the real and substantial effect that such matters
could have on the circumstances under which unit own-
ers will incur financial obligations and potentially lose
their residence, we cannot reasonably construe the pol-
icy as anything but a rule. To conclude otherwise would
render an absurd result. Under the plaintiff’s proffered
interpretation of the act, associations would be required
to give unit owners notice and the opportunity to com-
ment regarding policies on matters as inconsequential
as the placement of bird feeders outside units but would
not be required to afford notice and an opportunity to
comment on a policy prescribing conditions relating to
the foreclosure of the unit owner’s property.
Finally, we note that deeming standard foreclosure
policies to be rules creates no impediment to a board’s
timely and effective fulfillment of its responsibilities.
The adoption or amendment of such policies would not
occur routinely.
The plaintiff nevertheless advances several argu-
ments for characterizing standard foreclosure policies
as internal business operating procedures, none of
which we find sufficiently persuasive. First, the plaintiff
argues that the purpose of § 47-258 (m), according to
a treatise authored by one of the members of the study
committee, is to provide the board with the ability to
prescribe and have knowledge of the foreclosure crite-
ria used by its property manager or legal counsel in
deciding when and how to foreclose. See 1 D. Caron &
G. Milne, Connecticut Foreclosures (5th Ed. 2011) § 13-
1:9, p. 657 (Section 47-258 [m] was ‘‘intended to create
a set of objective prerequisites to an association’s fore-
closure. A particular concern leading to the adoption
of this provision was the business practice of some
associations to retain a management company or law
firm to oversee foreclosures, and the association had
little knowledge of which units were in foreclosure, and
the extent of the default that preceded the decision to
foreclose. Although, as an alternative to unit-by-unit
voting to foreclose, the association may still enter into
such arrangements with a management company or law
firm, it may only do so after it has adopted a standard
policy establishing the criteria to be satisfied before a
foreclosure can commence.’’). The plaintiff’s argument
is beside the point. The fact that the policy provides
such objective criteria does not eliminate the effect of
such criteria on unit owners. Moreover, to the extent
that the foreclosure criteria are intended in part to
protect unit owners, as the plaintiff itself concedes,
notice and comment requirements better protect unit
owners from arbitrary collection policies.
Second, the plaintiff claims that, ‘‘[a]s an alternative
to adopting a collection policy, the . . . board can vote
to commence a foreclosure specifically against a unit.
. . . It would yield an absurd result and not harmonize
with the statute to require that the standard collection
policy be adopted as a rule, yet allow this process to
be circumvented by a simple board vote to foreclose.’’
(Citation omitted.) We note that, with a limited excep-
tion, the act still requires a lesser form of notice and
comment for matters addressed in board meetings, even
if not rules.7 See General Statutes (Rev. to 2011) § 47-
250 (b) (1) through (6). We do not agree, therefore,
that the alternative basis for commencing a foreclosure
action is fundamentally at odds with a heightened notice
and comment requirement for standard policies.
Third, the plaintiff argues, and the dissent agrees,
that the standard foreclosure policy at issue in this
case cannot be a rule because a rule addresses a matter
that is not set forth in an association’s declaration;
General Statutes § 47-202 (31); and the plaintiff’s decla-
ration does address unit owners’ obligations to pay
assessments and the plaintiff’s right to foreclose due
to unpaid assessments. We disagree. The plaintiff’s dec-
laration simply tracks the statutory language that
existed before P.A. 09-225 added the rule-making provi-
sion and the limitations on associations’ right to fore-
close, including the adoption of a standard foreclosure
policy. That declaration does not address the proce-
dures, rights, and limitations set forth in the board’s
foreclosure policies, previously discussed. Merely
restating statutory rights, of which unit owners already
are legally deemed to have notice, does not provide
notice to unit owners of significant information bearing
on the potential loss of their unit.
The flaw in the position of the plaintiff and the dissent
is aptly illustrated by the following example. Section
47-261b (d) specifies that an association may adopt
‘‘rules governing the time, place, size, number and man-
ner of [flag] displays,’’ rules that necessarily would be
subject to the notice and comment requirement. Sup-
pose that the declaration incorporated this statutory
language. Following the logic of the plaintiff and the
dissent, if the board later adopted a policy requiring all
flags to be no larger than four inches by six inches and
to be displayed only on holidays, that policy would
not be subject to the notice and comment requirement
because the right of the association to regulate the
time and size of flag displays has been set forth in the
declaration. Such a result plainly would contravene the
legislature’s intent, because the statute clearly envi-
sions that such policies will be promulgated as rules
subject to notice and comment. Accordingly, we are
not persuaded that a declaration’s incorporation of stat-
utory rights or limitations excuses a board from comply-
ing with the rule-making requirements for matters that
otherwise plainly fall within the meaning of a rule.
Accordingly, we conclude that standard foreclosure
policies are rules that require notice and comment
before adoption. To the extent that the plaintiff’s con-
cerns arise from the expansive definitions in the act,
its recourse lies with the legislature.
II
In light of our conclusion that a foreclosure policy
is a rule, we consider the defendant’s contention that
the plaintiff’s failure to adopt a standard foreclosure
policy in accordance with the rule notice and comment
requirements deprived the trial court of subject matter
jurisdiction. We agree.
Because a ‘‘determination regarding a trial court’s
subject matter jurisdiction is a question of law, our
review is plenary.’’ (Internal quotation marks omitted.)
Sastrom v. Psychiatric Security Review Board, 291
Conn. 307, 314, 968 A.2d 396 (2009). It is well established
that ‘‘there is a presumption in favor of subject matter
jurisdiction, and we require a strong showing of legisla-
tive intent’’ to overcome that presumption. Williams v.
Commission on Human Rights & Opportunities, 257
Conn. 258, 266, 777 A.2d 645 (2001). Nonetheless, we
are persuaded that such an intention is manifested in the
act’s condition precedent to commencing a foreclosure
action, namely, in the absence of a board vote to insti-
tute the particular foreclosure action, the proper adop-
tion of a standard foreclosure policy that would
authorize that action.
In ascertaining legislative intent, our case law has
distinguished between conditions imposed on the com-
mencement of a statutorily created right of action and
statutory conditions imposed on an action existing
under the common law. The former generally is deemed
to be jurisdictional, whereas the latter is not. See Stec
v. Raymark Industries, Inc., 299 Conn. 346, 371, 10
A.3d 1 (2010) (distinguishing its jurisdictional conclu-
sion from conclusion reached in Commissioner of
Transportation v. Kahn, 262 Conn. 257, 811 A.2d 693
[2003], because ‘‘it was important that the statute [in
Stec] served as a mechanism to enforce the common-
law right to compensation for governmental takings, as
opposed to a time limitation on the enforcement of a
right specifically created by statute’’). Thus, in the con-
text of a time limit for commencing litigation, this court
explained the distinction as follows: ‘‘A statute of limita-
tions is generally considered to be procedural, espe-
cially where the statute contains only a limitation as to
time with respect to a right of action and does not itself
create the right of action. . . . Where the limitation is
deemed procedural and personal it is subject to being
waived unless it is specifically pleaded because the
limitation is considered merely to act as a bar to a
remedy otherwise available. . . . Where, however, a
specific time limitation is contained within a statute
that creates a right of action that did not exist at com-
mon law, then the remedy exists only during the pre-
scribed period and not thereafter. . . . The courts of
Connecticut have repeatedly held that, under such cir-
cumstances, the time limitation is a substantive and
jurisdictional prerequisite . . . .’’ (Citations omitted;
internal quotation marks omitted.) Ecker v. West Hart-
ford, 205 Conn. 219, 231–32, 530 A.2d 1056 (1987).
Although this issue arises most frequently in the con-
text of time limits, this court also has held that other
condition precedents to the commencement of a statu-
tory cause of action are jurisdictional. See Forbes v.
Suffield, 81 Conn. 274, 275, 70 A. 1023 (1908) (‘‘The
right to maintain an action against a municipality for
the recovery of damages for personal injuries resulting
from defective highways, exists only by force of [the
applicable statute], which defines and limits the right
and prescribes the conditions under which it may exist.
. . . The giving of this notice [within a prescribed time]
is expressly made a condition precedent to any right
of action. Until it is given no such right exists.’’); see
also Bristol v. Ocean State Job Lot Stores of Connecti-
cut, Inc., 284 Conn. 1, 5, 931 A.2d 837 (2007) (timely
service of notice to quit in summary process actions
jurisdictional); Goodson v. State, 232 Conn. 175, 180,
653 A.2d 177 (1995) (This court concluded that the trial
court lacked jurisdiction due to an absence of pending
arbitration when a party sought relief under the statute
permitting the court to issue an order pendent lite upon
the application of ‘‘ ‘any party to the arbitration . . . .’ ’’
We reasoned: ‘‘ ‘The statute confers a definite jurisdic-
tion upon a judge and it defines the conditions under
which such relief may be given . . . . In such a situa-
tion jurisdiction is only acquired if the essential condi-
tions prescribed by statute are met. If they are not met,
the lack of jurisdiction is over the subject-matter and
not over the parties.’ ’’).
In certain instances, the legislature may be deemed
to have manifested an intention not to create a jurisdic-
tional bar even when it imposes a condition upon a
statutorily created right of action when doing so could
frustrate the purpose of the statute or would be incon-
sistent with other terms in the statute. See, e.g., Com-
mission on Human Rights & Opportunities v. Savin
Rock Condominium Assn., Inc., 273 Conn. 373, 381,
870 A.2d 457 (2005) (time limit prescribed for Commis-
sion on Human Rights and Opportunities to investigate
complaint and make final administrative disposition not
jurisdictional when statute explicitly provided that
Commission on Human Rights and Opportunities
retained jurisdiction over complaint in cases wherein
it failed to complete its investigation within pre-
scribed period).
Application of these principles persuades us that the
act’s condition precedent to commencing a foreclosure
action—that a board either votes to institute the particu-
lar action or to adopt a standard foreclosure policy—
is jurisdictional. ‘‘Liens for delinquent common expense
assessments on individual units within an association
are creatures of statute. . . . In addition to creating
the lien and authorizing its foreclosure, § 47-258, con-
trary to the tenet that the priority of liens is governed
by the common law rule that first in time is first in right
. . . carves out an exception and grants a priority to
the lien for common expense assessments.’’ (Citations
omitted.) Hudson House Condominium Assn., Inc. v.
Brooks, 223 Conn. 610, 614, 611 A.2d 862 (1992).
Although strict foreclosure is a common-law process;
Society for Savings v. Chestnut Estates, Inc., 176 Conn.
563, 568, 409 A.2d 1020 (1979); we conclude that the
right to foreclose the common charges lien is more
properly characterized as a statutory right of action.
The statutory language indicates that the legislature
intended the three conditions necessary for commenc-
ing an action to foreclose a common charges lien to be
jurisdictional prerequisites. General Statutes (Rev. to
2011) § 47-258 (m) provides that ‘‘[a]n association may
not commence an action to foreclose a lien on a unit
owner under this section unless’’ it satisfies certain
prescribed conditions. (Emphasis added.) The legisla-
ture could have phrased the requirement that a board
adopt a policy or vote to commence proceedings as a
limitation on a court’s ability to grant relief. Cf. General
Statutes § 45a-100 (k) (‘‘the court shall not grant relief
under this section if’’). Instead, it phrased the require-
ment as a condition precedent to the commencement
of the action itself. Thus, the adoption of a standard
foreclosure policy is ‘‘a condition precedent to any right
of action. Until [a vote is taken or a procedure is
adopted] no such right exists.’’ Forbes v. Suffield, supra,
81 Conn. 275. Because the plaintiff did not properly
satisfy either condition precedent, the trial court should
have granted the defendant’s motion to dismiss.
The judgment is reversed and the case is remanded
with direction to grant the defendant’s motion to dis-
miss and to render judgment dismissing the plaintiff’s
action.
In this opinion PALMER, EVELEIGH, ESPINOSA and
ROBINSON, Js., concurred.
1
General Statutes (Rev. to 2011) § 47-258 (m) (3) provides: ‘‘An association
may not commence an action to foreclose a lien on a unit under this section
unless . . . the executive board has either voted to commence a foreclosure
action specifically against that unit or has adopted a standard policy that
provides for foreclosure against that unit.’’
Hereinafter all references to § 47-258 are to the 2011 revision of the General
Statutes unless otherwise noted.
2
Connecticut Housing Finance Authority, EdConn Federal Credit Union,
Capital One, Jefferson Radiology, P.C., Palisades Acquisition, LLC, and
Achieve Financial Credit Union were also named as defendants. Limberger
is the only defendant who is a party to this appeal and, for convenience,
all references herein to the defendant are to Limberger.
3
The defendant appealed to the Appellate Court, and we transferred the
appeal to this court pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-1.
4
The dissent attempts to extrapolate from these specified limitations on
the association’s rule-making authority a broad principle by which to ascer-
tain whether standard foreclosure policies are rules. There is no support,
however, textual or extratextual, for the dissent’s inferential leap. For all
we know, these matters may have been specified simply because they were
a common subject of complaints by unit owners against associations. Indeed,
one of the matters addressed in § 47-261b (d), limitations on the display of
flags, was of such concern that it inspired federal legislation a few years
before the passage of Public Acts 2009, No. 09-225, § 34. See Freedom
to Display the American Flag Act of 2005, Pub. L. No. 109-243, 120 Stat.
572 (2006).
5
General Statutes § 47-202 (31) provides: ‘‘ ‘Rule’ means a policy, guideline,
restriction, procedure or regulation of an association, however denominated,
which is adopted by an association pursuant to section 47-261b which is
not set forth in the declaration or bylaws and which governs the conduct
of persons or the use or appearance of property.’’ (Emphasis added.)
dures that a board may adopt—rules and internal business operating proce-
dures—the phrase referring to this section does not inform our analysis.
6
Although the parties dispute which policy is controlling in the present
case, that fact is not material to our resolution of this appeal. Both policies
were submitted as full exhibits in the trial court. Even if we assume that
the 2011 policy is the sole operative policy because it superseded the 2010
policy, as the plaintiff contends, either both policies are rules or both are
internal business operating procedures. Otherwise, if the 2010 policy is a
rule but the 2011 policy is an internal business operating procedure, the
plaintiff could not repeal the former in favor of the latter without giving
unit owners notice and the opportunity to comment on the proposed change.
General Statutes § 47-261b.
7
General Statutes (Rev. to 2011) § 47-250 (b) (8) permits the board to act
by unanimous consent as documented in a record authenticated by all its
members, instead of meeting. The statute requires, however, prompt notice
to all unit owners of any action taken by unanimous consent. General
Statutes (Rev. to 2011) § 47-250 (b) (8). We question whether it would be
consistent with the intention of P.A. 09-225 to routinely vote on foreclosures
by unanimous consent. We need not address that issue in the present case.