2006-463, BRUCE BUCHHOLZ & a. v. WATERVILLE ESTATES ASSOCIATION

The plaintiffs, Bruce Buchholz and Erin O’Neill Buchholz,

brief), and Scott D. McGuffin, of Laconia, on the brief, for the defendant. Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the

for the plaintiffs. to press. Errors may be reported by E-mail at the following address: Walker & Buchholz, P.A., of Manchester (Kevin E. Buchholz on the brief),

editorial errors in order that corrections may be made before the opinion goes No. 2006-463 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Hillsborough-northern judicial district Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as denied the plaintiffs’ motion for reconsideration. This appeal followed.

subsequent placement of a lien on their property were unfair or deceptive acts. (citation omitted). judicial construction.” Corcoran v. Harmon, 154 N.H. 411, 41 p. 2 2-13 (2006) The trial court granted the defendant’s motion for summary judgment and is clear and unambiguous, its meaning is not subject to modification by and ordinary meanings to words used. When the language used in the statute a statute, we first examine its language and, where possible, ascribe the plain Town of Deering, 151 N.H. 795, 798 (2005). “When construing the meaning of meaning of a statute as expressed in the words of the statute itself.” fact and the right to judgment as a matter of law. Greene v. v. Town of Windham proponent has established the absence of a dispute over any material, 138 N.H. 319, 323 (1994). “We are the final arbiter of the 80:61 (2003) (governing real estate tax liens), and the holding in most favorable to the non-moving party to determine whether the First NH Bank This case implicates the interplay among the Condominium Act, RSA

Protection Act alleging that the defendant’s efforts to collect the fees and the favorable to the non-moving party.” Id. title to the condominium unit. They also filed a claim under the Consumer evidence, and all inferences properly drawn from them, in the light most the fees and filed a petition to remove the “cloud” of the declarations from their reviewing a denial of summary judgment, we consider the affidavits and other acquired the property by tax deed. The plaintiffs denied any obligation to pay counterclaim to collect the fees due, asserting a lien on the plaintiffs’ property. issue of fact is material if it affects the outcome of the litigation.” Id. “In Act, RSA chapter 356-B (1995 & Supp. p. 2 2006). The defendant also filed a Porter v. City of Manchester, 155 N.H. __, __, 921 A.2d 393, 398 (2007). “An in the governing documents of the association as well as by the Condominium

required to construe the pleadings, discovery and affidavits in the light In acting upon a motion for summary judgment, the trial court is

association dues and assessments that had been assessed after the town

plaintiffs were bound by the restrictions, easements and covenants contained The defendant filed a motion for summary judgment, asserting that the

See RSA 358-A: p. 2 2 (Supp. 2006).

After the plaintiffs acquired the property, the defendant sought to collect

corresponding map and lot number. being recorded in the town’s warrant book as “Homesite F-14” with a jurisdictions it survives a tax sale . . . .” p. 3 land separate from and ‘carved out’ of a servient estate; in the majority of

which the taxes have not been fully paid. or state shall be for 100 percent of the separate distinct interest upon

land upon which they are imposed are literally inseparable.” 15A Am. Jur. 2d, Thirteen South v. Summit Village, 866

novel in this jurisdiction. “Generally, an easement or covenant is an interest in The question of whether condominium covenants survive a tax sale is Am. Jur. 2d Condominium covenants “sink their tentacles into the soil.” pursuant to RSA 75:2, the tax lien executed to the municipality, county, Id. at 114 n.6. interest in the condominium unit itself).” where distinct interests in the property have been separately assessed In re Beeter, 173 B.R. at 115. which the [plaintiffs have] an undivided interest inseparable from [their] serve (namely, the maintenance and preservation of the common areas, in the assessment obligation and benefited by the function that the assessments supra. “Each condominium owner finds [his or her] estate both burdened by

W.D. Tex. 1994). “The condominium declaration covenants and the estate in appeal denied, 680 N.E.2d 1163 (Ill. 1997); In re Beeter, 173 B.R. 108 (Bankr. LaSalle Nat. Trust v. Board of Directors, 677 N.E.2d 1378, 1382 (Ill. App. Ct.),

Condominiums and Cooperative Apartments § 7 (2002); see

“Condominium declarations are covenants running with the land.” 15A

a mortgage interest; it concerns condominium covenants. executed in severalty by metes and bounds; provided, however, that product of the tax lien procedure.” and undivided interest in the property and no portion thereof shall be Id. This case, however, does not deal with independent title to one hundred percent of the land . . . is the ultimate execute to the municipality, county or state only a 100 percent common when the right of redemption expires. following the last date for payment of taxes . . . . The collector shall Id. at 324. It is true that “a new and liens and that such encumbrances are divested at the issuance of the tax lien In First NH Bank, we held that mortgages did not have priority over tax

state shall be delivered to the municipality by the tax collector on the day An affidavit of the execution of the tax lien to the municipality, county or

pertinent part: RSA 80:61, upon which the court in First NH Bank relied, reads in

disagree. encumbrances upon it, including condominium assessments and fees. We and undivided interest in the property,” RSA 80:61, thereby stripping away all N.H at 323, when they took title to the land, they took a “100 percent common On appeal, the plaintiffs first argue that pursuant to First NH Bank, 138

I. Condominium Fees Surviving a Tax Lien purchased by the plaintiffs and its status as part of the condominium. p. 4 “personal knowledge of admissible facts,” RSA 491:8-a, regarding the property the forum of trial.” standing rule that parties may not have judicial review of matters not raised in operated by the defendant, Waterville Estates Association.” “It is a long- Grafton County Registry of Deeds.” The plaintiffs did not dispute the amount by the defendant noted there was a “filing of the lien documentation in the

sufficient and met the requirements of RSA 491:8-a. The affiant was the the affiants will be competent to testify.” Here, the sworn affidavit was the trial court’s characterization of their property as “located in a development personal knowledge of admissible facts as to which it appears affirmatively that was part of the condominium. Most notably, the plaintiffs did not challenge record below did the plaintiffs dispute that they had purchased property that defendant’s perfection of the lien and the amount of the lien. The affidavit filed condominium, we hold that this argument is not preserved. Nowhere in the The plaintiffs next assert that there were factual disputes relative to the

III. Perfection of Defendant’s Lien attack the affidavit as being “an expression of purely personal opinion.”

summary judgment shall accompany his motion with an affidavit based upon

statement that the property purchased by the plaintiffs was in fact part of the To the extent the plaintiffs challenge the affidavit as lacking a definitive

faulty affidavit in granting the motion for summary judgment. The plaintiffs

RSA 491:8-a, II (1997) states in pertinent part: “Any party seeking

v. John Hancock Mut. Life Ins. Co., 131 N.H. 485, 491 (1989).

Next, the plaintiffs argue that the trial court erred by relying upon a

condominium covenants that ran with the land. this and other jurisdictions we hold that the plaintiffs took title subject to the v. Swain, 90 N.H. 383, 386-87 (1939). Consistent with established authority in Hampshire, we have held that easements survive a sale for taxes. See Gowen Although we have not ruled on the survival of covenants in New

Sale for Taxes 7 A.L.R.5th 187, 203 (1992) (collecting cases). 32 (N.M. 1939); Annotation, Easement, Servitude, or Covenant as Affected by (Mont. 1937); Alamogordo Improvement Co. v. Prendergast, 91 P.2d 428, 431- (Mo. 1937); Northwestern Improvement Co. v. Lowry, 66 P.2d 792, 795-96 P.2d 257, 259 (Nev. 1993); see also Schlafy v. Baumann, 108 S.W.2d 363, 368 p. 5 RSA 356-B:37, :38, :39 (1995). quorums, voting, and availability of a list of all members of the association. from exercising their statutory rights with respect to matters such as meetings,

constitutional argument.” outlined and nothing in the record shows that the plaintiffs were prevented “[P]assing reference to ‘due process,’ without more, is not a substitute for valid reference to due process rights without authority is insufficient for our review.

remedies). Mechanisms of participation in the association, too, are statutorily (1995), :46-a (Supp. 2006) (provisions dealing with unpaid assessments and the assessment of a one-time capital improvement fund fee. The cursory procedures are explicitly allowed by the Condominium Act. RSA 356-B:46 Finally, the plaintiffs argue that their due process rights were violated by

may not rest upon mere allegations or denials of his . . . pleadings . . . .” summary judgment. “The party objecting to a motion for summary judgment collect fees were not unlawful under RSA 358-A:2. Such fee collection The trial court properly found that the actions taken by the defendant to

argue that they were denied participation in the condominium association. meaning of the Consumer Protection Act, RSA 358-A:2. The plaintiffs also association dues and fees constituted unfair and/or deceptive acts within the on their second count, an allegation that the defendant’s efforts to collect Next, the plaintiffs challenge the trial court’s grant of summary judgment

the lien, we see no dispute upon these facts that would warrant a denial of was sufficient to support summary judgment. with the trial court’s conclusion that the evidence presented by the defendant demonstrating a relevant dispute regarding the perfection of the lien, we agree omitted). Because the plaintiffs have failed to set forth specific facts is a genuine issue of material fact for trial.” Id. (quotation and brackets interrogatories, or admissions, must set forth specific facts showing that there “response, by affidavits or by reference to depositions, answers to Panciocco v. Lawyers Title Ins. Corp., 147 N.H. 610, 613 (2002). The plaintiffs’

Regarding the plaintiffs’ claim that the defendant improperly perfected

time on appeal. See id. of the lien before the trial court; therefore, we will not address it for the first p. 6 6

concurred.

BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ.,

defendant. Accordingly, the trial court properly granted summary judgment for the