Watson v. The Village at Northshore I Ass'n, Inc. ( 2016 )

Watson v. The Village at Northshore I Ass’n, Inc., No. 835-8-13 Cncv (Toor, J., Feb. 5, 2016).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
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VERMONT SUPERIOR COURT
CHITTENDEN UNIT
CIVIL DIVISION
│
ROY H.A. WATSON, III, │
Plaintiff │
│
v. │ Docket No. 835-8-13 Cncv
│
THE VILLAGE AT NORTHSHORE I │
ASSOCIATION, INC., │
Defendant │
│
RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT, MOTION TO DISMISS,
AND MOTION FOR JOINDER
This is a remanded action for declaratory relief concerning various disputes between a unit
owner and a condominium association. Plaintiff Roy H.A. Watson, III requests declaratory
judgment on thirteen issues related to the governance of The Village at Northshore (“Northshore”),
a condominium in Burlington. Brooks McArthur, Esq. and David J. Williams, Esq. represent
Watson, and Carl H. Lisman, Esq. represents The Village at Northshore I Association (“the
Association”).
The Association moves to dismiss multiple issues for lack of subject matter jurisdiction
and moves for summary judgment on all issues. Watson filed a notice of voluntarily withdrawn
issues, which the court interprets as a motion to dismiss. Watson cross-moves for summary
judgment. The Association also moves to join other unit owners under V.R.C.P. 19(a).
Facts
The following facts are undisputed unless otherwise noted. Watson has owned a unit at
Northshore since 1987. Northshore was created in 1986 by the Declaration of Condominium of
the Village at Northshore I (“Original Declaration”). Pl.’s Ex. 1. The Association amended the
Original Declaration multiple times between 1986 and 2012. When the Association adopted and
recorded the Amended and Restated Declaration of Condominium (“Amended Declaration”) in
2012, it replaced the Original Declaration and brought Northshore under the provisions of the
Vermont Common Interest Ownership Act.1 Id.
The dispute between the parties revolves around Northshore’s division into units, common
elements, and limited common elements, and the subsequent amendments that purport to alter the
definition or boundaries of that division. “Common areas” or “common elements” include all parts
of the property that are not units.2 Orig. Decl., Art. I(A)(7). Each unit owner is permitted to use
the common elements “in accordance with the purposes for which they were intended without
hindering or encroaching” upon other unit owners’ rights, subject to the Association’s rules and
regulations. Id. Art. III(B)(3). “Limited Common Elements” are the “portions of the Common
Elements reserved for the exclusive use of one or more, but less than all, of the Units.” Id. Art.
I(A)(16).
A unit includes “the undivided interest in the Common Elements which pertain to that Unit,
as defined in the [Condominium Ownership] Act.” Id. Art. I(A)(10). The undivided interest
“means the percentage interest of each Unit in the Common Elements.” Id. Art. I(A)(27).
1
Northshore was originally subject to Vermont’s Condominium Ownership Act, 27 V.S.A. § 1301 et seq. Orig. Decl.,
preamble (“[T]he Declarant hereby submits the Property to the provisions of Chapter 15 Title 27 of the Vermont
Statutes Annotated, known as the Vermont Condominium Ownership Act . . .”). Certain sections of Vermont’s
Common Interest Ownership Act, 27A V.S.A. § 1-101 et seq., apply to events and circumstances after December 31,
1998, while others apply to events and circumstances after December 31, 2011. The court will note this where it is
relevant. See 27A V.S.A. § 1-204(a)(1)–(2). The remaining sections of the Common Interest Ownership Act apply to
Northshore after the Association enacted its Amended Declaration in 2012. The Condominium Ownership Act
provides that “[a]ll of the apartment or site owners may remove a property from the provisions of this chapter by an
instrument to that effect, duly recorded, if the holders of all liens affecting any of the apartments or sites consent
thereto or agree, in either case by instruments duly recorded, that their liens be transferred to the percentage of the
undivided interest of the apartment or site owner in the property as herein provided.” 27 V.S.A. § 1316(a). The parties
have not submitted evidence that such an instrument was recorded or that the relevant lien holders consented to remove
Northshore from the Condominium Ownership Act.
2
The Original Declaration further defines common areas and common elements by reference to their definition in the
Condominium Ownership Act, 27 V.S.A. § 1301 et seq.
2
Northshore consists of two- and three-bedroom units as well as single story “garden homes.” Id.
Art. II(C).
Each unit consists of space between defined boundaries. Id. Art. II(D). The upper boundary
is “the horizontal plane of the bottom surface of the plasterboard of the ceilings of the second floor
of the Two Bedroom Unit and the Three Bedroom Unit and of the first floor of the Garden Home.”
Id. Art. II(D)(1)(a). The lower boundary is “the horizontal plane of the top surface of the
subflooring on the first floor.” Id. Art. II(D)(1)(b). The vertical boundary is “the vertical plane
which includes the innermost surface of the plasterboard of all walls bounding each Unit extending
to intersections with each other and with the upper and lower boundaries.” Id. Art. II(D)(2).
According to the Association, each attic space is accessible only to the unit below it, and the attic
spaces themselves are structurally separated by firewalls. Watson disputes this fact, arguing that
the Board president, whose affidavit supports it, is not qualified to testify regarding the structure
of the buildings.
Limited common elements include “[a]ny doorsteps, stoops, porches, decks, patios and all
exterior doors and windows, equipment storage areas, closets or other fixtures or improvements
designated to serve, attached to, or adjacent to a single Unit, but located outside the Unit’s
boundaries.” Id. Art. III(A)(2). These limited common elements are “allocated exclusively” to a
unit. Id. Additionally, “garage spaces” are “Limited Common Elements appurtenant to and for the
exclusive use of the respective Units to which they are assigned.” Id. Art. III(A)(3). The Original
Declaration states that the garages are depicted in Exhibit B, which is an overhead drawing of
Northshore. Id.
In October 2006 the Association recorded an amendment to the Original Declaration to
allow garage spaces to be “reallocated by an amendment to [the Declaration] executed by the unit
3
owners between or among whose units the reallocation is made.” Pl.’s Ex. 5. Unit owners
executing the reallocation amendment must provide the recording fees and a copy of the
amendment to the Association, which will record it. Id.
In January 2008 the Association recorded an amendment to the Original Declaration,
adding “attic spaces and roof structures located immediately above a Unit” to the definition of
limited common elements. Pl.’s Ex. 6. One purpose of this amendment is to “reclassify the attic
spaces and roof system immediately above a Unit as a Limited Common Element in order to allow
for extension of the livable area of a Unit.” Id. The Association admits that the amendment purports
to effect a reclassification, but argues that the attic spaces and roof structures located immediately
above a unit have always already been limited common elements.
In November 2011 the Association recorded another amendment to the Original
Declaration, this time replacing the phrase “attic spaces and roof structures located immediately
above a Unit” with “attic spaces above a Unit and skylights above a Unit.” Pl.’s Ex. 7. The
Association does not dispute the language of the amendment but disputes that it changed the
definition of limited common elements.
In September 1999 the Association’s Board approved a plan for the owner of unit 136 to
expand the unit into the attic space above it. The Board approved similar expansions of other units
before and after the 2008 amendment. Watson asserts that each expansion into the attic space
above a unit required the building structure to be altered and roof trusses removed. Pl.’s Ex. 4. The
Association objects that no affidavit supports Watson’s exhibit, a diagram of a unit expansion. The
parties agree that some structural modification is necessary to expand a unit into the attic space
above it.
4
Watson received permission to install a satellite dish on the chimney above his unit in 2008,
and he installed the dish in 2009. In 2010 he relocated the dish to the roof above his unit. The
parties dispute the reasons for and circumstances surrounding the relocation. Plaintiff petitioned
the FCC in 2010 for a ruling on the Association’s rules regarding satellite dishes. In 2013, the
Association modified its satellite dish rule to conform with FCC rules.
In August 2011 Watson and the trustees of the Edmunds Living Trust executed an
amendment that purported to reallocate a garage space from unit 127 to Watson’s unit. Watson
provided the amendment to the Association with the filing fee, but the Association has not recorded
the amendment. The Association sent Watson a letter in which it indicated that it would file the
amendment as soon as Watson corrected an error it contained. Pl.’s Ex. 11.
In June 2012 the Association recorded an Amended and Restated Declaration of
Condominium (Amended Declaration). Pl.’s Ex. 12. The Amended Declaration provides that the
Board or its representatives may enter any unit “after prior notice, to determine compliance with
this Declaration and Rules, to enforce such compliance and for any other lawful purpose.”
Amended Decl., § 5.04(b).
The Amended Declaration also requires that unit owners maintain the temperature in their
units “at all times at a level which will prevent the freezing of water pipes of both the plumbing
and heating systems.” Amended Decl., § 6.02(c)(ii). In 2005, the Association’s insurance carrier
advised its agent that as a result of a loss of $80,144 due to flooding from a burst pipe, it would
not renew the Association’s insurance coverage.3 Pl.’s Ex. U. After the agent discussed with
3
Watson claims that this fact is disputed because “there is no evidence in the contemporaneous Board meeting minutes
to substantiate this statement.” The fact is, however, supported by an affidavit, and Watson does not claim that the
evidence is inadmissible. Watson cites his own affidavit, claiming that “Defendant has acknowledged that it received
no correspondence from the insurance carrier threatening to cancel coverage over the temperature monitoring issue”
(emphasis added). Plaintiff’s Response to Defendant’s Statement of Undisputed Material Facts in Support of Motion
for Summary Judgment. According to the exhibit Watson cites, the Association replied to Watson’s request to produce
correspondence in which the insurance carrier threatened to cancel coverage unless the Association mandated the use
5
various insurance companies how the Association could obtain coverage without prohibitive cost,
the Association enacted the rule requiring temperature monitoring devices in each unit.4
The Association has required that unit owners maintain temperature monitoring devices
since 2005. The current rules require unit owners to install and maintain temperature monitors that
remotely alert the management company or other designee of the Board when the temperature of
a unit falls below 45 degrees. Id. § 2.5.7. In a unit owner’s absence, the Board or its agents “may
take such reasonable action as is deemed appropriate including entry into the unit to verify the loss
of heat and the actual temperature within the unit.” Id.
The Board adopted rules on April 29, 2013, that state that “[n]o immoral, improper,
offensive or unlawful use shall be made of any unit, and all valid laws and regulations of all
governmental bodies having jurisdiction shall be observed.” Pl.’s Ex. 13, § 2.3.1.
Plaintiff complained to the Board about the condition of the fence behind his unit in 2008.
Plaintiff also requested that the Association relocate the fence. The parties dispute whether the
fence has been repaired.
The Association Bylaws require that unit owners “desiring to address the Board of
Directors shall give notice at least 48 hours prior to the Meeting; the President may waive this
requirement for good cause shown.” Ex. 15, § 6.06(f). The parties dispute the facts surrounding
another unit owner’s attempt to raise an issue with the Board.
of “temperature monitoring devices … in every unit.” Pl.’s Ex. U. The Association stated that it had received no
correspondence stating that the carrier would cancel coverage “unless the Association mandated installation of
temperature monitoring devices in all units.” Id. (emphasis added). That statement does not contradict the fact asserted
by the Association: the carrier informed the Association’s insurance agent that it would not renew coverage due to the
$80,144 loss caused by a burst pipe. That fact is therefore not genuinely disputed.
4
Watson attempts to dispute this fact by asserting that the rule was adopted “several months after the Board had
chosen the exact model of temperature monitor that would be mandated.” He also claims that the minutes do not
mention “that an insurance crisis required the Board to adopt the temperature monitor rule.” These assertions are not
inconsistent with the fact asserted by the Association, which is therefore not genuinely disputed.
6
Discussion
I. Motion to Dismiss under V.R.C.P. 41
Watson filed a “Notice Re: Voluntarily Withdrawn Issues” on August 6, 2015. The
Association filed its “Motion To Dismiss Or, In the Alternative, For Summary Judgment” on June
11, 2015, in which it argued that the court should dismiss three of the four issues that Watson now
withdraws, or to grant summary judgment in favor of the Association on all four.
Voluntary dismissal by a plaintiff is permitted without order of the court or by stipulation
only before the adverse party files an answer or a motion for summary judgment. V.R.C.P.
41(a)(1). The court therefore interprets Watson’s “notice” as a motion for dismissal by order of
the court. V.R.C.P. 41(a)(2). Under V.R.C.P. 41(a)(2), dismissal may be “upon such terms and
conditions as the court deems proper.”
Watson’s amended complaint contained 13 issues for declaratory judgment. The
Association investigated facts related to each issue and expended time and effort in addressing
each of the issues in its motions to dismiss and for summary judgment. The Association requests
that the court dismiss with prejudice the 4 issues that Watson now agrees to dismiss and that the
court order Watson to reimburse the Association for fees and costs. The court agrees that given
the timing of Watson’s consent to dismissal it should be with prejudice. Thus, issues 8, 11, 12, and
13 of the amended complaint are dismissed with prejudice.5 However, the request for attorney fees
is denied. The fact that a party concedes that it cannot prove certain claims is not grounds for a fee
award, absent further evidence regarding pursuit of, for example, obviously frivolous claims.
5
The issue numbers refer to the numbers in Watson’s amended complaint (Oct. 21, 2014).
7
The following issues remain:6
1. Whether the “access easement” included in the Amended Declaration, § 5.04 violated
Watson’s property rights under Vermont law (Issue 1).
2. Whether the Association can mandate the use of temperature monitors in units (Issue 2).
3. Whether the Association’s bylaw that requires members who wish to address the board provide
48-hour notice violates Vermont law (Issue 3).
4. Whether the Association has an obligation to repair the fence located behind Watson’s unit
(Issue 4).
5. Whether Watson has the right to install an antenna on the “roof structure” immediately above
his unit pursuant to Federal Communications Commission rules (Issue 5).
6. Whether unit expansion into either a common element or a limited common element to enlarge
the living space of that unit violates Watson’s property rights under Vermont law, and whether
the removal of ceilings, joists, and roof trusses to enlarge the living space of that unit violates
Watson’s property rights under Vermont law (Issue 6).
7. Whether “roof structures” can be removed from the allocation of a limited common element
without Watson’s consent (Issue 7).
8. Whether the Association has an obligation to file the Amendment reallocating a garage space
to Watson’s unit (Issue 9).
9. Whether the Amended Declaration’s redefinition of garages as limited common elements
violates Watson’s rights under Vermont law (Issue 10).
6
Unless otherwise noted, the court refers below to the issues as they are numbered in Watson’s Amended Complaint.
8
II. Motion to Dismiss under V.R.C.P. 12(b)(1)
The court first addresses the Association’s motion to dismiss Issues 1, 3, 5–7, and 10
because it relates to subject matter jurisdiction.7 The Association contends that these issues are not
justiciable cases or controversies upon which the court may issue declaratory judgment.
Additionally, with regard to Issue 5, the Association argues that the Federal Communications
Commission (FCC) has sole authority to adjudicate the issue of satellite dish installation, and no
private right of action exists under the FCC Rule at issue.
Watson requests only declaratory relief. 12 V.S.A. § 4711. The purpose of declaratory
judgment is “to adjudicate and define specific rights and liabilities of parties.” Cupola Golf Course,
Inc. v. Dooley, 2006 VT 25, ¶ 10, 179 Vt. 427. A declaratory judgment should “serve some useful
purpose to the parties” and “serve some practical end in quieting or stabilizing an uncertain or
disputed jural relation either as to present or prospective obligations.” Walsh v. Andorn, 311
N.E.2d 476, 478 (N.Y. 1974).
“The availability of declaratory relief turns on whether the plaintiff is suffering the threat
of actual injury to a protected legal interest.” Dernier v. Mortgage Network, Inc., 2013 VT 96,
¶ 38, 195 Vt. 113 (quoting Town of Cavendish v. Vt. Pub. Power Supply Auth., 141 Vt. 144, 147
(1982)). “[A]n action for declaratory relief must be based on an actual controversy; the claimed
result or consequences must be so set forth that the court can see that they are not based upon fear
or anticipation but are reasonably to be expected.” Dernier, 2013 VT 96, ¶ 38 (quoting Robtoy v.
City of St. Albans, 132 Vt. 503, 504 (1974)). The court lacks jurisdiction if the plaintiff “is merely
speculating about the impact of some generalized grievance.” Town of Cavendish v. Vermont Pub.
7
Although the Association frames its motion to dismiss under V.R.C.P. 12(h)(3), the court will treat it as a motion to
dismiss under V.R.C.P. 12(b)(1). Rule 12(h)(3) provides that a motion under 12(b)(1) may be filed at any time. See
Poston v. Poston, 161 Vt. 591, 592 (1993) (mem.).
9
Power Supply Auth., 141 Vt. 144, 147 (1982). Whether the “facts are sufficiently immediate and
real to make an actual controversy is something that must be worked out on a case-by-case basis.”
Wright, Miller & Kane, 10B Fed. Prac. & Proc. Civ. 3d § 2757. There is no precise test to
determine whether there is a controversy, but “the question in each case is whether the facts
alleged, under all the circumstances, show that there is a substantial controversy, between parties
having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a
declaratory judgment.” Golden v. Zwickler, 394 U.S. 103, 108 (1969) (quotation omitted).
The Association argues that Watson’s issues are general grievances, rather than justiciable
controversies. It cites a previous decision in which this court ruled that it lacked subject matter
jurisdiction when a plaintiff challenged the legality of condominium declaration provisions, rather
than asserting an injury. Pinnacle at Spear Homeowners Ass’n v. Larkin Milot Partnership, No.
S0700-08 Cnc, slip. op. at 5 (Vt. Super. Ct. Mar. 17, 2010) (Toor, J.). Pinnacle revolved around a
declarant’s retained but unexercised veto power over future amendments to the condominium’s
declaration. In this case, Watson asserts that he had acquired property rights that required his
consent to alter, and that the Association subsequently altered its governing documents, affecting
those rights without his consent. Whereas the plaintiff in Pinnacle speculated about a future,
hypothetical injury, if Watson is correct, his injury has already occurred. Viewed together, the
issues in this case reveal years of unsettled controversy between the parties.
In Issue 1, Watson seeks declaratory relief invalidating the provisions granting Board
members access easements to enter units (§§ 5.04 and 6.02 of the Amended Declaration). The
Association argues that Watson’s complaint is a “generalized grievance” rather than a justiciable
controversy because Watson has not suffered any injury. According to the Association, it has never
exercised its right to enter Watson’s unit or threatened to do so. It is not necessary, however, for
10
the Association to enter or to expressly threaten to enter Watson’s unit for controversy to arise
over whether an amendment to the declaration impermissibly abridges a protected legal interest.
Watson’s ownership of unit 132 includes a right to exclude.8 See Loretto v. Teleprompter
Manhattan CATV Corp., 458 U.S. 419, 435 (1982) (“The power to exclude has traditionally been
considered one of the most treasured strands in an owner’s bundle of property rights.”); Chioffi v.
City of Winooski, 165 Vt. 37, 43 (1996) (quoting Esposito v. South Carolina Coastal Council, 939
F.2d 165, 170 (4th Cir. 1991) (stating that “the fundamental incidents of ownership, include[e] the
right to […] exclude others from it”)); 27 V.S.A. § 1305 (“Each apartment or site owner shall be
entitled to the exclusive ownership and possession of his or her apartment or site.”).
By accepting the deed to unit 132, Watson agreed to be bound by the terms of the Original
Declaration, which included easements that limit his right to exclude. See Pl.’s Ex. 2; Orig. Decl.
Art. V(E) (providing that unit owners must allow the Association and its agents access across their
units for maintenance, repair, and replacement of the common elements and the units). The
Amended Declaration arguably broadens the easement, or creates a new easement, to allow the
Board and its representatives to enter a unit to determine compliance with the declaration and rules.
§ 5.04 (“Easement for Entry”). Thus, the actual controversy is whether the new or broadened
easement, to which Watson allegedly did not consent, impermissibly encroaches on Watson’s right
to exclude. Since the Association has already recorded the Amended Declaration, this is a
justiciable controversy that is ripe for declaratory judgment.
The Association similarly contends that Watson fails to allege injury by the rule that
requires Association members to give 48-hour notice before addressing issues at Board meetings.
8
Watson cites Barrett v. Kunz, 158 Vt. 15 (1992) for the proposition that because an easement is a right of use over
the property of another, the creation of an easement directly implicates and abridges the right of a property owner to
exercise his or her right to exclude others from entering. Barrett, however, deals with appurtenant easements and does
not actually provide authority that Watson, as the owner of a condominium unit, has the right to exclude.
11
“Unit owners must be given a reasonable opportunity at any meeting to comment regarding any
matter affecting the common interest community or the association.” 27A V.S.A. § 3-108(a)(5).
The parties do not dispute that Board meetings include an “Open Forum” time when unit owners
can bring up questions or concerns. Watson does not assert that the Board ever denied him the
right to address the Board, only that another unit owner attempted to bring up the issue of unit
expansions, and the Board tabled the discussion. The statute requires that unit owners must have
“a reasonable opportunity” to comment at meetings, but Watson fails to show that the 48-hour
notice rule unreasonably limits the opportunity to speak. There is no justiciable controversy with
regard to the 48-hour notice rule.
Next, the Association argues that Watson alleges no injury from the unit expansions into
attic spaces and the redefinition of limited common elements (specifically “roof structures”). The
Association claims that the theoretical impact that Watson alleges “cannot exist as a practical
matter.” According to the Association, the costs of repair and maintenance are borne by the owner
of an expanded unit, not by the Association. The controversy, however, is whether the Board
violated Watson’s interest in the common elements, first when it allowed units to expand into the
common elements, and next when it amended the Original Declaration’s definition of limited
common elements, including—and later excluding—“roof structures.” There is no dispute that
Watson, as a unit owner, has an interest in the common elements. The question of whether the
Association violated Watson’s property rights with regard to those attic spaces is a justiciable
controversy because the Association’s approval of unit expansions arguably affects Watson’s
interest in the attic spaces. This issue is closely connected with the questions of whether an
amendment allocated the roof structure above Watson’s unit to Watson, and whether a further
amendment impermissibly altered that allocation without his consent. The resolution of this
12
controversy will quiet the parties’ longstanding disagreement about the status of the attic
expansions and the allocation of roof structures.9
The Association next argues that Watson’s claim regarding his garage fails because “[i]t is
not at all clear that the Amended Declaration alters the allocation of garage space, as Limited
Common Elements, to any Unit,” and “[w]hat is clear is the absence of any allegation of harm
flowing from any such alteration, and the corresponding absence of justiciable controversy in [this
Issue].” Watson’s claim is that the Original Declaration allocated the attic space and roof above
each garage to the unit owners as limited common elements, whereas the Amended Declaration
limits garage space to “the area within the walls, ceilings and floors of the garages.” Thus, the
question is whether the Amended Declaration reallocated the attic and roof of Watson’s garage,
reducing his allotted exclusive use in violation of his rights. Watson’s concern appears to be his
ability to place satellite dishes on the roof. Because Watson claims a loss of exclusive use of the
garage roof—presumably for satellite dish placement—he states a justiciable claim.
Finally, the Association moves to dismiss the satellite dish issue. First, the Association
essentially argues that the issue is moot because Watson’s dish is permitted to remain on his roof
under the revised rules. However, under the new rules, Watson will have to seek permission if he
seeks to install an upgraded dish or move his dish to a different location to get better reception.
Watson’s claim is that by requiring such processes, the Association violates his rights to the use
of the roof. The issue is therefore not moot.
However, the Association also argues that this court does not have jurisdiction to decide
this issue because Watson already petitioned the FCC to decide the matter. The Court agrees. The
9
Watson’s filings with the FCC indicate his plans to install satellite dishes on the roof. Although this court will not
render a decision with regard to the application of the OTARD rule, the court’s declaratory judgment with regard to
whether the roof structures are limited common elements allocated to Watson potentially affects the application of the
OTARD rule.
13
FCC’s Over the Air Reception Devices Rule, 47 C.F.R. § 1.4000 (“OTARD rule”) does not create
a private right of action between a condominium association and unit owner. Scott v. Lantern Park
Condo. Ass’n, No. CIV. 3:05CV1265AVC, 2006 WL 618108, at *4 (D. Conn. Mar. 9, 2006)
(quoting Opera Plaza Residential Parcel v. Hoang, 376 F.3d 831, 835 (9th Cir. 2004)). The satellite
dish claim is therefore dismissed.
III. Cross-Motions for Summary Judgment
A. Statutes of Limitation
The Association argues that it is entitled to judgment as a matter of law on several of the
remaining claims because they are time-barred. According to the Association, Watson’s claims
regarding the easements for entry (Amended Declaration §§ 5.04 and 6.02), the bylaw requiring
48-hour notice before bringing an issue to a Board meeting, the redefinition of garages as limited
common elements, and the removal of roof structures from the definition of limited common
elements are controlled by 27A V.S.A. § 2-117. That statute provides that “[n]o action to challenge
the validity of an amendment adopted by the association pursuant to [section 2-117 of the Common
Interest Ownership Act] may be brought more than one year after the amendment is recorded.”
27A V.S.A. § 2-117(b) (emphasis added).
Section 2-117 has applied to Northshore only since the Amended Declaration was recorded
on June 25, 2012, subjecting the Association to the Common Interest Ownership Act in its
entirety.10 Watson’s claims regarding the easements for entry challenge the validity of certain
sections of the Amended Declaration. Although Watson filed his claims after section 2-117 applied
to Northshore, section 2-117(b)’s one-year limitations period only applies to amendments adopted
10
Section 2-117 is not one of the enumerated sections that applied before the Amended Declaration was recorded. See
27A V.S.A. § 1-204(a)(1)–(2).
14
pursuant to section 2-117. The Amended Declaration, including sections 5.04 and 6.02 and the
revised definition of garage space, could not have been adopted pursuant to section 2-117 because
that section did not apply until after the Amended Declaration was recorded. Therefore section 2-
117(b)’s one-year limitations period does not apply to the issues that challenge those provisions.
The redefinition of limited common elements in the 2011 amendment preceded the
Association’s 2012 adoption of the Common Interest Ownership Act, including section 2-117. The
Association nevertheless contends that because the Amended Declaration restated the “covenants,
conditions, [and] easements … applicable to the property,” Watson’s challenge to the 2011
amendment is also a challenge to the Amended Declaration. Even if that were the case, challenges
to the Amended Declaration, as noted above, are not limited by section 2-117(b) because section
2-117 did not control the Association’s enactment of the Amended Declaration itself.11
Finally, the Association argues that Watson’s claim regarding the Association’s obligation
to repair the fence accrued “at the latest” in August 2008, when Watson first notified the Board
that the fence was in disrepair. This claim, says the Association, is subject to a six-year limitations
period. 12 V.S.A. § 511; see Fitzgerald v. Congleton, 155 Vt. 283, 287 (1990) (noting that section
511 “is a catchall statute that applies to civil actions generally”). Watson first raised the fence
claim in his amended complaint in October 2014.
The Association does not explain its reasoning that the claim accrued “at the latest” when
Watson first brought his concerns about the fence’s condition to the Board in 2008. Certainly a
unit owner cannot be said to be on notice that the Association has breached its obligation to repair
or replace a common element the moment the unit owner reports a damaged common element.
11
In other words, the Amended Declaration, by subjecting Northshore to the Common Interest Ownership Act,
provides that the Association will enact future amendments pursuant to section 2-117. Those amendments will
generally be subject to the one-year limitations period in section 2-117(b).
15
The alleged breach, if there was one, would likely have occurred at some later time, when the
Association was already aware of the need to repair or replace the fence and neglected to perform
its obligation. Equally puzzling is Watson’s argument that “[s]ince this cause of action has not yet
accrued, [the] claim is not time-barred.” The claims would have accrued at least by October 2009,
when Watson alleges that all action on the fence ceased. Am. Comp. ¶ 29. The court cannot
ascertain a specific date when the claim accrued, based on the undisputed material facts.
B. Access Easements (Issue 1)
Watson requests declaratory judgment that the “access easement” included in the Amended
Declaration violates his property rights under Vermont law. The Original Declaration required unit
owners to allow the Association and other unit owners access across each unit for maintenance,
repair, and replacement of the common elements and units. Orig. Decl. Art. V(E). Under the
Amended Declaration, the Board and its representatives may enter any unit in an emergency or to
“accomplish emergency repairs,” and “after prior notice, to determine compliance with [the
Amended Declaration and Rules], to enforce such compliance and for any other lawful purpose.”
§ 5.04(a)–(b).
The Condominium Ownership Act provides that “[t]he association of owners shall have
the irrevocable right, to be exercised by the manager or board of directors, to have access to each
apartment or site from time to time during reasonable hours as may be necessary for the
maintenance, repair or replacement of any of the common areas and facilities therein or accessible
therefrom, or for making emergency repairs therein necessary to prevent damage to the common
areas and facilities or to another apartment or apartments or sites.” 27 V.S.A. § 1306. The Common
Interest Ownership Act provides that the unit owners must provide access “reasonably necessary”
for maintenance, repair, and replacement of common elements and units. 27A V.S.A. § 3-107(a).
16
Watson argues that the “easement for entry” in the Amended Declaration expands the
purposes for which the Board and its representatives may enter a unit beyond what is specifically
allowed under Vermont law by allowing access to check for compliance with the declaration and
rules. § 5.04. Watson does not argue that the Amended Declaration was unduly adopted, only that
the Amended Declaration’s “easement for entry” exceeds the authority for such easements in
Vermont’s statutes.
While the statutes do not expressly allow easements for other purposes beyond
maintenance, repair, and replacement, they also do not limit a declaration’s easements to the
purpose of maintenance and repair. Watson takes issue with the Amended Declaration’s grant of
access to ensure compliance with rules. He notes that the Board has adopted rules that prohibit
“immoral, improper or offensive behavior.” The Amended Declaration’s easement for entry does
grant the Board the right to enter Watson’s unit in a broader range of circumstances than the
easement in the Original Declaration, but Watson has not shown that this easement is unlawful,
void, or otherwise unenforceable. By accepting the deed to his unit, Watson accepted the terms of
the covenants, including the method for amending the declaration, which can occur even if Watson
is opposed to it. The easement does not violate Watson’s property rights under Vermont law.
C. Temperature Monitoring Devices (Issue 2)
Watson argues that the Board cannot promulgate a rule that requires unit owners to install
and maintain temperature monitors and permits the Board or its agents to enter units to verify the
loss of heat or actual temperature. Pl.’s Ex. 13, § 2.5.7.
The Amended Declaration requires that unit owners maintain their own units such that their
failure to make repairs does not damage other units or the common elements. § 6.02(c).
Specifically, unit owners must maintain the temperature in their units “at all times at a level which
17
will prevent the freezing of all water pipes.” Id. Unit owners (and their tenants or lesees) are liable
for damages resulting from their “acts, neglect, or carelessness.” Amended Decl., § 10.02. The
Amended Declaration also prohibits activities that “may result in an increase in insurance rates
occasioned by use … of a Unit …” Id.
The Association may generally adopt and amend rules. 27A V.S.A. § 3-102(a). Rules that
“affect the use of or behavior in units” must “(1) implement a provision of the declaration; (2)
regulate any behavior in or occupancy of a unit which violates the declaration or adversely affects
the use and enjoyment of other units or the common elements by other unit owners; or (3) restrict
the leasing of residential units to the extent those rules are reasonably designed to meet
underwriting requirements of institutional lenders that regularly make loans secured by first
mortgages on units in common interest communities or regularly purchase those mortgages.” 27A
V.S.A. § 3-120(f).
Watson argues that because the statutes and Amended Declaration do not specifically
authorize the Board to require temperature monitors, and because maintenance of unit temperature
(and each unit’s condition, generally) is the responsibility of the unit owner, the Association
(acting through the Board) cannot require temperature monitors. According to Watson, the
Association is responsible only for maintenance of common elements. Watson additionally
contends that the temperature monitor rule does not meet the requirements of section 3-120(f), and
that the rule is “not reasonable” as required by section 3-120(h). He claims that the Association
and unit owners are protected by the liability provision in the Amended Declaration, combined
with the provision that requires that unit owners maintain temperatures that prevent pipes from
freezing.
18
Watson cites Weldy v. Northbrook Condominium Association for the proposition that the
declaration is the Association’s “constitution.” 904 A.2d 188, 191 (Conn. 2006). In Weldy,
however, the Connecticut Supreme Court also cited with approval a case noting that “an
association’s power should be interpreted broadly, [and] the association, through its appropriate
governing body, is entitled to exercise all powers of the community except those reserved to the
members.” Id. (quoting Schaefer v. Eastman Cmty. Ass’n, 836 A.2d 752, 756 (N.H.
2003)(quotation omitted)). “[P]rovided that a [board’s action] does not contravene either an
express provision of the declaration or a right reasonably inferable therefrom, it will be found
valid, within the scope of the board’s authority.” Id. (quoting Beachwood Villas Condo. V. Poor,
448 So. 2d 1143, 1145 (Fla.Dist.Ct.App. 1984)).12 The provisions of the declarations that render a
unit owner responsible for maintenance within the unit, and the Association responsible for
maintenance of common elements except those damaged by unit owners, create obligations, not
rights that the temperature monitor rule contravenes.
The Association argues that the temperature monitor rule implements the provisions in the
Amended Declaration that require that unit owners maintain temperatures to prevent pipes from
freezing and forbid unit owners from activities that lead to increased insurance costs. In the
alternative, the rule “regulate[s] any behavior in or occupancy of a unit which violates the
12
At the time of Weldy, Connecticut, like Vermont, had adopted the Uniform Common Interest Ownership Act. The
Connecticut legislature had not yet enacted the provision analogous to Vermont’s 27A V.S.A. § 3-120. Conn. Gen.
Stat. Ann. § 47-261b. The court includes the discussion of Connecticut case law because it was raised by the parties.
Although Watson and the Association argue for and against the temperature monitoring law in terms of § 3-120, that
section was added by the legislature in 2009 to take effect in 2012. See 2009, No. 155 (Adj. Sess.), § 38. The parties
do not dispute that the temperature monitoring rule at Northshore has been in effect since 2005. The Association did
not move for summary judgment on the issue of the temperature monitoring rule on the basis of the statute of
limitation.
19
declaration or adversely affects the use and enjoyment of other units or the common elements by
other unit owners.” 27A V.S.A. § 3-120(f).
The temperature monitor rule is not the only rule that affects the use of or behavior in units.
The Association requires the use of lint filters in clothes dryers. Pl.’s Ex. 13, § 2.5.3. Similarly,
units must have stove hoods and grease screens. Id. Unit owners must also provide the Board with
written evidence of biannual boiler inspections and professional cleaning of dryer vents, as well
as annual professional cleaning and inspection of wood-burning fireplaces and flues if used during
the preceding heating season. Id. § 2.5.6(1)–(3). Like the temperature monitor rule, these rules
require unit owners to take measures, at the unit owners’ expense, designed to reduce the chance
of damage to other units or common elements, even though a unit owner would already be liable
for damage resulting from his acts or omissions. All of these rules are consistent with the terms of
the Amended Declaration and the Original Declaration. The temperature monitor rule is reasonable
in light of these other rules.
The rule implements a provision of the declaration by requiring a device that sends an alert
when a unit’s temperature is too low, causing a risk of broken pipes and damage to the surrounding
units and common elements. The undisputed facts indicate that the decision to implement the rule
also related to the cost of obtaining insurance for the Association. Thus, the rule also aims to curtail
behavior that would violate the terms of the declaration by causing increased insurance costs.13
The temperature monitor rule does not have to be the most efficient or effective means of
achieving its purposes to satisfy the requirements of section 3-120(f). Watson’s motion for
summary judgment on the temperature monitoring rule is denied. Because the undisputed facts
13
Watson argues in a footnote that the rule is also unreasonable. 27A V.S.A. § 3-120(h). However, no reasonable jury
could find that the rule is unreasonable.
20
show that the rule meets the statutory requirement of implementing a provision of the declaration
the Association is entitled to summary judgment in its favor.
D. Fence Repair (Issue 4)
Watson requests a declaratory judgment stating that the Association has an obligation to
repair the fence located behind his unit. The parties do not dispute that the fence located behind
Watson’s unit is a common element. The Association bears the cost of maintaining, repairing, or
replacing common elements. 27 V.S.A. § 1302(7)(B); 27A V.S.A. § 3-107(a) (providing that the
Association is generally “responsible for maintenance, repair and replacement of the common
elements”). The Original Declaration and the Amended Declaration provide that “[a]ny portion of
the Common Elements which is damaged or destroyed shall be promptly repaired or replaced by
the Association.” Orig. Decl., Art. VI(A); Amended Decl., § 6.03. The Amended Declaration also
specifies that replacements must be substantially similar to the original construction. Amended
Decl., § 6.03.
Watson requested that the Association replace and relocate the fence in 2008. The Board
and Association Building Committee considered and discussed the request in 2008 and 2009 but
did not grant it. The parties disagree about what happened later. Neither party’s undisputed
material facts indicate that the fence was “damaged or destroyed” such that the fence’s condition
triggered the Association’s obligation to replace it. The actual condition of the fence is a question
of fact that is not definitively set forth in either party’s facts. The court cannot determine whether
the Association did or did not have an obligation to repair or remove the fence, or whether the
“business judgment rule” applies. The undisputed facts do not entitle either party to summary
judgment on this issue.
E. Unit Expansions (Issue 6)
21
Use of Attic Spaces
Watson requests declaratory judgment stating that unit expansion into either a common
element or a limited common element to enlarge the living space of that unit violates his property
rights. The 2008 amendment, which designated attic spaces as limited common elements, says
Watson, violated his rights under Vermont law by altering his undivided interest in common areas
and facilities without his consent. The Amended Declaration continued to define the expanded
areas as limited common elements.
Watson’s argument is that when a unit’s living space expands into a limited common
element, it diminishes his undivided interest in common elements (of which limited common
elements are a part). He argues that the expansions violate two provisions of the Condominium
Ownership Act. First, “[t]he percentage of the undivided interest of each apartment or site owner
in the common areas and facilities as expressed in the declaration shall have a permanent character
and shall not be altered without the consent of all of the apartment or site owners expressed in an
amended declaration duly recorded.” 27 V.S.A. § 1306(b). Second, “[c]ommon areas and facilities
shall remain undivided” and “[n]o apartment or site owner or any other person may bring any
action for partition or division of any part thereof, unless the property has been removed from the
provisions of [the Condominium Ownership Act].” 27 V.S.A. § 1306(c). Watson argues that the
units that have expanded in the attic spaces have increased in value, and “[t]he diminishment of
[Watson’s] undivided interest is, of course, inversely proportional to the increased value of the
expanded units.”
The plain language of the statute refers to “percentage of undivided interest,” which is
“computed by taking as a basis the value of the apartment or site in relation to the value of the
property.” 27 V.S.A. § 1306(a). Exhibit C to the Original Declaration presents a schedule of values
22
of the units, and the corresponding percentage of undivided interest in the common elements. The
Original Declaration assigned a value of $90,000 to Watson’s unit (132) and 0.6781% undivided
interest in the common elements.
The Common Interest Ownership Act provides that “[t]he declaration shall state the
formulas used to establish allocations of interests.” 27A V.S.A. § 2-107(b). The Amended
Declaration simply provides that the percentage of undivided interest in common elements is set
out in “Exhibit C,” which appears to be the same schedule that was attached to the Original
Declaration.14 §9.08. The facts do not include any indication that the assigned unit values or
corresponding percentages of undivided interest in common elements have been altered.
The undisputed facts also do not include evidence that the expanded units have increased
in value generally. And even if the expanded units have increased in value, the statute requires an
amendment by unanimous consent to alter the corresponding percentages of interest. The facts do
not indicate that such an amendment has occurred. Therefore it is immaterial that the expanded
units, by virtue of increased living space, sell at higher prices: Watson’s percentage of undivided
interest remains the same. Additionally, since the expanded living spaces are considered limited
common elements, they are still owned in common by the unit owners even though each space is
allocated for the use of only one unit—like the garages and decks at Northshore. No unit owner’s
percentage of undivided interest is altered when a unit’s deck is extended, or when a unit owner
acquires the use of a second garage.
The Condominium Ownership Act’s provision requiring that common areas remain
“undivided” and prohibiting actions for partition or division does not apply to amendments that
14
The court’s copy of Watson’s Exhibit 12 (the Amended Declaration) is missing the page of its schedule that includes
his Unit’s value and percentage of undivided interest in the common elements, but the other pages of the schedule of
values are identical to the schedule that was recorded with the Original Declaration. The undisputed facts do not show
that the Association has altered the schedule of assigned percentages of undivided interest.
23
allocate the use of limited common elements to specific units. 27 V.S.A. § 1306(c). Since the
Condominium Ownership Act provides for limited common areas, the use of which is by definition
restricted to fewer than all units, it would make no sense to interpret this statute to mean that
common areas cannot be limited common areas, or that the designation of limited common areas
is the sort of “division” that the statute purports to prohibit. Rather, this statute disallows unit
owners from acting to legally divide or partition any part of the common areas. The unit expansions
at issue in this action cannot be characterized as actions to claim ownership or to force partition of
common elements.
Watson compares the expansion of units in Northshore to the improvements increasing the
size of a unit in Sisto v. Am. Condo. Ass’n, Inc., 68 A.3d 603 (R.I. 2013). Sisto was an action for
declaratory relief regarding unit expansion within a condominium that includes three
“subcondominium residential areas,” each of which is governed in accordance with a master
declaration and its own declaration. Id. at 606. Sisto sought to expand his unit into the adjacent
yard. Id. at 610. He argued that the yard was a limited common element and that unit expansions,
according to his subcondominium’s declaration, were also limited common elements. Id. Under
Rhode Island’s Condominium Act, amendments that change unit boundaries require unanimous
approval of unit owners. R.I. Gen. Laws § 34-36.1-2.17. The Sisto Court held that a declaration
could not circumvent the statute’s requirement for unanimous consent by creating a “legal fiction”
that an expansion merely occupies limited common elements rather than changing the unit’s
boundaries. Id. at 614.
Sisto is of little help in this case. First, a proposed expansion of a unit’s footprint into a
lawn area that could more likely be used by other unit owners differs from the Association’s
approval of expansions into attic space that is otherwise unusable to any unit other than the one
24
below each attic. Second, Vermont lacks an analogous statute that requires unanimous consent for
unit expansions. As for expansion under the Amended Declaration, the Common Interest
Ownership Act specifically allows amendments, by 67 percent vote, to relocate boundaries
between common elements and units such that common elements are incorporated into units. 27A
V.S.A. § 2-112(b). Vermont law does not require the unanimous consent that the declaration in
Sisto sought to circumvent.
The Association’s insistence that units expanded into attic spaces are using limited
common elements draws on a similar legal fiction, but it does not circumvent a statute that clearly
intends to require unanimous approval of unit expansions. Watson is not entitled to summary
judgment on the unit expansion issue.
The Association argues that it had authority to permit unit expansions into the attic spaces.
Before the 2008 amendment, attic spaces were either common elements (because they are outside
of the unit boundaries) or already limited common elements as “portions of the Common Elements
reserved for the exclusive use of one or more, but less than all, of the Units.” Orig. Decl., Art.
I(A)(16). The 2008 amendment expressly includes attic spaces as limited common elements.
The Association may “regulate the use, maintenance, repair, replacement, and modification
of common elements,” “make additional improvements to the common elements,” and “grant
easements, leases, licenses, and concessions through or over the common elements.” 27A V.S.A.
§ 3-102(a)(6), (7) and (9). Limited common elements, as portions of the common interest
community other than units, are a type of common element. 27A V.S.A. § 1-103(4).
Although most provisions of the Common Interest Ownership Act did not apply to
Northshore until the Association recorded the Amended Declaration in 2012, sections 1-103 and
3-102(a)(6) applied to events and circumstances occurring after December 31, 1998. 27A V.S.A.
25
§ 1-204(a)(1). The provisions relating to “additional improvements” and easements did not govern
Northshore until 2012. The Board approved some of the challenged expansions before 2012. The
subsection that authorizes the Association to regulate the use and modification of the common
elements empowered the Board to approve unit owners’ expansions of their units into the attic
spaces. See 27A V.S.A. § 3-102(a)(6). The original bylaws provided that “[n]othing shall be altered
or constructed in or removed from the Common Elements except upon the prior written consent
of the Board of Directors.” Ex. A-1 at V(H)(1)(d). Watson does not dispute that the Board
consented to the expansions.
The Association argues that prior to the 2008 amendment that expressly characterized the
attic spaces as limited common elements, the attic spaces were either already limited common
elements because access to them was only possible from the unit below, or they were common
elements that could be used by the units below without interfering with other unit owners’ use of
them because other units had no way of accessing them. It is not necessary for the court to conclude
that the spaces were already limited common elements prior to the 2008 amendment because the
statutes authorize the Board’s approval of construction and regulation of use of the attic spaces.
The Association is entitled to summary judgment on the issue of unit expansions.
Removal of Ceilings, Joists, and Roof Trusses
Watson’s Motion for Summary Judgment treats the actual removal of ceilings, joists, and
roof trusses as a separate issue, although in the Amended Complaint, it appeared to be part of the
issue of unit expansion into the attic spaces. The Association argues that Watson’s evidence does
not support his assertion that specific structural elements were removed for all the unit expansions
in question, but the parties agree that the unit expansions required some alteration of the building’s
structure. Watson argues that these structures are common elements and that Vermont law requires
26
that they “shall have a permanent character and shall not be altered without the consent of all of
the apartment or site owners expressed in an amended declaration duly recorded.” 27 V.S.A. §
1306(b).
The statute does not mean that common elements as such cannot be physically altered
without consent of all unit owners; it refers to the “permanent character” of “the percentage of the
undivided interest of each apartment or site owner in the common areas and facilities.” Id.
(emphasis added). As noted above, the unit expansions do not alter the percentage of undivided
interest in common areas—Watson’s percentage of undivided interest remains as indicated in the
schedule of unit values and corresponding percentages of undivided interest.
Vermont law does not support Watson’s request for declaratory relief regarding the issue
of removal of ceilings, joists, and roof trusses. The Association did not expressly move for
summary judgment on this issue as a separate issue, but it substantively overlaps the unit expansion
issue.15 The court understands this issue to be included in the unit expansion issue, and grants
summary judgment in favor of the Association for the same reasons.
F. “Roof Structures” (Issue 7)
In 2008, the Association amended the Original Declaration to include “attic spaces and
roof structures immediately above a Unit” in the definition of limited common elements. Watson
argues that the subsequent amendment in 2011, which removed “roof structures” from the
definition of limited common elements, violated Vermont law by altering the allocation of a
limited common element without his consent. 27A V.S.A. § 2-108(a). In the alternative, Watson
argues that the 2008 amendment created a covenant running with the land that would require his
15
The Association based its motion for summary judgment on the issues as they are enumerated in Watson’s amended
complaint, in which the unit expansion issue encompassed structural modifications. In Watson’s motion for summary
judgment, he separated unit expansion and structural modification.
27
consent to extinguish. According to Watson, the 2011 amendment took away Watson’s exclusive
use and control of the roof structure without his consent.
The section of the Common Interest Ownership Act that requires an affected owner’s
consent to alter the allocation of a limited common element did not control Northshore until its
members recorded the Amended Declaration in 2012. At the time of the challenged 2011
amendment, such alteration was authorized by the terms of the Condominium Ownership Act,
which requires that a declaration include the method by which the declaration may be amended.
The Original Declaration requires agreement of the owners of units to which 2/3 of the votes
appertain. See 27 V.S.A. § 1311(11); Art. XI(B). The parties do not dispute that the Amended
Declaration was executed by that method. The Original Declaration does not specify that a
unanimous vote is required, nor does it require the consent of an affected unit owner to alter the
allocation of a limited common element.
Watson relies on general principles of property law to argue that the 2008 amendment
created a covenant running with the land that granted him exclusive use of the roof structures
above his unit, which could only be extinguished by his consent as the benefitted party. See
Chimney Hill Owners’ Ass’n, Inc. v. Antignani, 136 Vt. 446, 454–55 (1978) (“For a covenant to
be enforceable as running with the land, four requirements must be met: a writing, intent, touch
and concern, and notice.”); see also Albright v. Fish, 136 Vt. 387, 394 (1978) (“A release
extinguishes only the estate of the releasor.”).
The 2011 amendment cannot be viewed as a covenant in isolation of the Original
Declaration in which it is embedded: the amendment is part of the declaration. Watson, in
accepting the deed for his unit, acknowledged prior receipt of the Original Declaration and bound
himself, his heirs, and assigns to its provisions, one of which allowed for amendments to the
28
Declaration by 2/3 vote. See Pl.’s Ex. 2. It cannot be the case that unit owners possess the power
to veto any amendment that touches and concerns their property, regardless of a declaration’s
method for amendment. By accepting the deed to a unit in Northshore, Watson consented to be
bound by future, duly enacted amendments, regardless of whether he agreed with them or voted
against them. Watson’s motion for summary judgment on the issue of roof structures is denied.16
H. Obligation to Record Garage Reallocation (Issue 9)
Watson requests a declaratory judgment that the Association is obligated to file the
Amendment reallocating garage space to his unit. Pursuant to a 2006 amendment to the Original
Declaration, unit owners can reallocate a garage by executing an amendment. Pl.’s Ex. 5. The 2006
amendment requires the Association to record the amendment. Id. Watson and the other party
executed the reallocation amendment, but the Association declined to record it. See Pl.’s Ex. 11.
As Watson’s own exhibit plainly indicates, the Association pointed out that the amendment
inaccurately stated that the grantors had received their deed to the garage from Northshore, rather
than David Keith Johnston. Id. The Association offered to record the amendment promptly as soon
as it was corrected. Id.
Although Watson framed his complaint exclusively as a request for declaratory relief, his
Motion for Summary Judgment requests specific performance: the court should “order the
Association to record the amendment transferring interest in the garage space to him.” However,
“[e]very contract or duty governed by this title imposes an obligation of good faith on all parties
in its performance or enforcement,” and the facts do not indicate a breach of this obligation. 27A
V.S.A. § 1-113. The Association’s letter rejecting Watson’s reallocation amendment clearly
requests a simple correction to the amendment and states that the Association will file it when it is
16
The Association did not submit a substantive argument for summary judgment on the issue of the roof structures.
29
corrected. The undisputed facts do not indicate whether the Association was correct regarding the
language in the amendment. The facts also do not indicate that Watson executed the correction.
Watson’s argues that the terms of the 2006 amendment require the Association to record
the amendment regardless of its erroneous content. There is nothing in the undisputed facts that
indicates a lack of good faith on the part of the Association in refusing to record an amendment
when it knows that the contents are false. The court cannot grant Watson summary judgment on
this issue in the form of declaratory relief or an order of specific performance.17
H. Redefinition of Garages (Issue 10)
Watson contends that the Association’s “redefinition of garages as Limited Common
Elements” violates Vermont law. The Original Declaration states that the “garage spaces depicted
on Exhibit B shall be Limited Common Elements appurtenant to … the respective Units to which
they are assigned.” Art. III.A.1. Exhibit B of the Original Declaration is an overhead drawing of
Northshore, which depicts the footprints of the units and garages. Each garage is numbered to
match the number of a corresponding unit. The Amended Declaration changed the description of
limited common elements to “the garage stalls (that is, the area within the walls, ceilings and floors
of the garages) referred to on Exhibit B.” § 3.01(a). “Each garage stall designated on Exhibit B or
thereafter re-assigned is appurtenant to … the respective Unit to which it is assigned. The garage
stalls were originally numbered to correspond to the number of the Unit to which each was
originally appurtenant.” Id.
Watson argues that because Exhibit B of the Original Declaration was an overhead
depiction, “the entire garage structure, including the roof, the attic, the interior walls and the floor”
was a limited common element assigned to him for his exclusive use. He concludes that when the
17
The Association did not move for summary judgment on this issue.
30
Association amended the definition of garages as limited common elements to restrict the
corresponding unit owners’ exclusive use to the interior of the garage, it altered the “allocation”
of a limited common element. See 27A V.S.A. § 2-108(a) (generally requiring a unit owner’s
consent to alter the allocation from the unit to which a limited common element was allocated).
In order for Watson to succeed on this issue, the court would have to determine that the
Original Declaration actually allocated “the entire garage structure, including the roof, the attic,
the interior walls and the floor” to Watson. The Original Declaration simply states that the garage
spaces “depicted on Exhibit B” are limited common elements appurtenant to the units to which
they are assigned. The fact that the drawing depicts only an overhead view does not unequivocally
lead to the conclusion that the declaration allocates the entire structure, “including the roof, the
attic, the interior walls and the floor” to Watson. Notably, the drawing depicts units in the same
two-dimensional manner. To the extent that the drawing relates to the garages as limited common
elements, it only shows which “garage space” is allocated to each unit. The text of the Original
Declaration describes the allocated area as “garage space,” which also does not support the
conclusion that the exterior structures are limited common elements as opposed to common
elements.
The definition of limited common elements in the Amended Declaration includes the
interior of garages and is consistent with the previous allocation and does not alter the allocation.
Because the Amended Declaration does not alter the allocation—the garages remain appurtenant
to each unit as indicated by the drawing or by a subsequent amendment—the consent requirement
in section 2-108(a) does not apply.
Watson also argues that the definition of garages as limited common elements in the
Original Declaration created a covenant running with the land, and the benefit from that covenant
31
cannot be extinguished without his consent. Watson urged the court to apply the same reasoning
to the roof structure issue, and the court declines to do so for the same reasons it outlined above:
the covenant regarding the use of the garages as limited common elements cannot be separated
from the context of the entire declaration. The deed to Watson’s unit binds him to all the terms of
the Original Declaration, including a procedure for amendment that does not require his individual
consent. And even if his consent was required, the Original Declaration did not expressly include
a covenant to use “the entire garage structure, including the roof, the attic, the interior walls and
the floor.” His allocation, which allows him to use the interior of the garage, remains unchanged
in the Amended Declaration. Watson is not entitled to summary judgment on this issue.18
IV. Motion for Joinder of Indispensable Parties
The Association moves to join the Association’s members as indispensable parties. The
court must order a person to be made a party if “the person claims an interest relating to the subject
of the action and is so situated that the disposition of the action in the person’s absence may (i) as
a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of
the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise
inconsistent obligations by reason of the person’s claimed interest.” V.R.C.P. 19(a). In an action
for declaratory relief, “all persons shall be made parties who have or claim any interest which
would be affected by the declaration, and no declaration shall prejudice the rights of persons not
parties to the proceeding.” 12 V.S.A. § 4721. However, “[a]n action alleging a wrong done by the
association, including an action arising out of the condition or use of the common elements, must
be brought only against the association and not against any unit owner.” 27A V.S.A. § 3-111(b)(1).
18
The Association’s motion for summary judgment with regard to this claim is limited to its argument that the claim
is time-barred.
32
The Association argues that because Watson challenges provisions of the governing
documents which every unit owner (member) at Northshore has the right to enforce, the court must
order all of the Association’s members to join the action as parties. Specifically, the Association
argues that the court must order the members to join the action if the court denies the Association’s
motions with regard to issues 1–3, 5–7, and 10. Because the court has dismissed issues 3 and 5 and
granted summary judgment on issues 1, 2, and 6, it will decide the Association’s motion for joinder
only with regard to issues 7 and 10. These issues deal with the definitions of “roof structures” and
garages as limited common elements.
The Association’s argument for mandatory joinder of its members primarily relates to the
concern that Watson “desire[s] to use any judgment he obtains in this action as the basis for future
lawsuits against other Unit Owners.” While it is apparent that this concern for future lawsuits
relates to issues 2 and 3 (unit expansion and removal of ceiling, joists, and roof trusses), the
Association provides no further explanation of how the court’s decisions regarding allocation of
garages and “roof structures” affect individual member’s interests in such a manner that joinder is
mandatory. If the court ultimately decides those issues in Watson’s favor, then at most, the
declaratory judgments will be limited to the application of the amendments and rules to Watson.
The Association also argues generally that the court should order all members to join
because Watson’s challenges to provisions of the governing documents affect the interests of all
unit owners equally. Although decisions related to the validity or enforceability of provisions in
the governance documents affect all of the Association’s members, the court cannot ignore section
3-111(b)(1), which seeks to prevent association members from being haled into court every time
a disgruntled member challenges an amendment, bylaw, or rule.
33
The Association argues that courts in other jurisdictions have held that all members of a
homeowners’ association are necessary parties in an action to invalidate provisions of the
governing documents. Only one case cited by the Association actually deals with the question of
joinder of indispensable parties under Rule 19 while considering the provision in the Uniform
Common Interest Act that requires actions to be filed against associations rather than unit owners.19
See Clubhouse at Fairway Pines, L.L.C. v. Fairway Pines Estates Owners Ass'n, 214 P.3d 451, 456
(Colo. App. 2008); Colo. Rev. Stat. Ann. § 38-33.3-311.
In Clubhouse at Fairway Pines, L.L.C. the Colorado Court of Appeals held that the relevant
section of the Common Interest Ownership Act was “intended to ‘change the law in states where
plaintiffs are forced to name individual unit owners as the real parties in interest to any action
brought against the association.’” 214 P.3d at 456 (Colo. App. 2008) (quoting Uniform Common
Interest Ownership Act § 3-111 cmt. 1). The court concluded that the statute did not establish that
the association provided adequate representation of its members for purposes of determining
indispensable parties. Id. The outcome of Clubhouse at Fairway Pines, L.L.C. determined whether
members would avoid paying fees or continue to benefit from a temporary club facility. Id. at 457.
Unlike Clubhouse at Fairway Pines, L.L.C., the outcome of the remaining issues in this case will
not potentially subject Northshore’s unit owners to additional fees or a loss of use of facilities.
Despite the interpretation of the equivalent statute in Clubhouse at Fairway Pines, L.L.C.,
section 3-111 does not merely permit plaintiffs to name associations as defendants rather than
individual unit owners. The statute provides that “[a]n action alleging a wrong done by the
association, including an action arising out of the condition or use of the common elements, must
be brought only against the association and not against any unit owner.” 27A V.S.A. § 3-111(b)(1)
19
The other cases are from jurisdictions in which the legislature has not enacted a version of the Uniform Common
Interest Ownership Act.
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(emphasis added). Not only does the plain language of the statute require Watson to bring the
action solely against the Association; it also restricts him from filing against other unit owners.
Section 3-111(b)(1) is clearly in tension with the Declaratory Judgment Act, which
provides that “all persons shall be made parties who have or claim any interest which would be
affected by the declaration, and no declaration shall prejudice the rights of persons not parties to
the proceeding.” 12 V.S.A. § 4721. It is a “long-standing rule of statutory construction that where
two statutes deal with the same subject matter, and one is general and the other specific, the more
specific statute controls.” Town of Brattleboro v. Garfield, 2006 VT 56, ¶ 10, 180 Vt. 90 (citing
Looker v. City of Rutland, 144 Vt. 344, 346 (1984)). Additionally, “newer statutes will be enforced
over older statutes, if there is a conflict.” Our Lady of Ephesus House of Prayer, Inc. v. Town of
Jamaica, 2005 VT 16, ¶ 16, 178 Vt. 35 (citing Cent. Vt. Hosp., Inc. v. Town of Berlin, 164 Vt.
456, 459 (1995)). Section 3-111(b)(1), enacted fifty years after the Declaratory Judgment Act,
controls in this case because it specifically limits the parties in actions involving the use of common
elements. The Association’s motion for joinder is therefore denied.
Order
Watson’s motion to withdraw issues 8, 11, 12, and 13 of the amended complaint is granted.
Those claims are dismissed with prejudice.
The Association’s motion to dismiss is granted with regard to the 48-hour notice rule and
the satellite dish rule, and denied with regard to the access easements, unit expansions, roof
structures, and garage. The Association’s motion for summary judgment is denied with regard to
fence repair, obligation to record garage reallocation, and the redefinition of garages as limited
common elements. Its motion for summary judgment is granted with regard to unit expansions;
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removal of ceilings, joists, and roof trusses; access easements; and the temperature monitoring
rule. Watson’s motion for summary judgment is denied.
A status conference will be scheduled to discuss resolution of the remaining issues.
Dated at Burlington this 5th day of February, 2016.
______________________________
Helen M. Toor
Superior Court Judge
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