Mark Diminico v. Centennial Estates Cooperative, Inc.

Date	Record Text	Type	Party	PDF
March 11, 2020	Mark Diminico v. Centennial Estates Cooperative, Inc.	Opinion	Supreme Court	Pre-Reporter
September 25, 2019	Mark Diminico v. Centennial Estates Cooperative, Inc.	Oral argument text	Mark DiMinico; Centennial Estates Cooperative, Inc.
May 28, 2019	Plaintiff-Appellee v. Centennial Estates Cooperative, Inc.	Brief	Centennial Estates Cooperative, Inc.	PDF
April 25, 2019	Plaintiff-Appellee v. Centennial Estates Cooperative, Inc.	Brief	Mark DiMinico	PDF
March 8, 2019	Plaintiff-Appellee v. Centennial Estates Cooperative, Inc. Current page	Brief		PDF

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

Case Number: 2018-0490

Mark DiMinico

Plaintiff-Appellee

v.

Centennial Estates Cooperative, Inc.

Defendant-Appellant

Rule 7 Appeal from Decision of the Rockingham County Superior Court

BRIEF OF DEFENDANT/APPELLANT,

CENTENNIAL ESTATES COOPERATIVE, INC.

On the Brief:

Robert M. Shepard, Esquire, Bar No. 2326

SMITH-WEISS SHEPARD, P.C.

47 Factory Street

P.O. Box 388

Nashua, NH 03060

(603) 883-1571

rms(inhlaw-nashua.corn

Oral Argument:

Robert M. Shepard, Esquire, Bar No. 2326

Page(s)

1

2 Questions Presented For Review 3

Constitutional Provisions, Statutes, Ordinances, Rules, or Regulations Involved 4

Statement of the Facts and the Case 4

Summary of Argument 8

Argument 9

I. The trial court made an error of law when it ruled that the Plaintiffs leasehold estate includes both the manufactured housing unit as well as the entirety of the surrounding lot 9

II. The trial court made an error of law when it granted the Plaintiff a right to a maintained view from his housing unit by ruling that the Defendant interfered with the Plaintiffs quiet enjoyment by making improvements to the neighboring lot 15

III. The trial court made an error of law when it ordered the Defendant to pay remediation costs in the amount of $10, 000.00 on property that the Defendant owns 18 IV. The trial court overlooked or misapprehended a point of fact in ruling that the boundary lines of Lot 30 were not in dispute when the Defendant's witness, Mr. Wentworth, Assistant Building Inspector, testified that there are no boundaries between the lots 19

Conclusion 21

Oral Argument 22

Certificate of Service 22

Copy of the Decision Being Appealed 23

Page(s)

Adams v. Woodlands of Nashua, 151 N.H. 642 (2005) 18

Morris v. Ciborowski, 113 N.H. 562 (1973) 18

City of Franklin v. Durgee, 171 N.H. 186 (1901) 19

and Other Authorities Page(s) RSA 477:44 12

RSA 477:44, II 12

RSA 205-A:1, II 13

RSA 205-A:13-c, II 13

RSA 205-A:1, IV 13

RSA 205-A:2 16, 19

RSA 205-A:2, I 13

RSA 540-A:1, II 14

RSA 540-A:1, III 14

RSA 205-A:13-c, III 17

Questions Presented For Review

1) Whether the court erred as a matter of law when it ruled that the Plaintiff's leasehold

estate includes both the manufactured housing unit as well as the entirety of the

surrounding lot.

2) Whether the court erred as a matter of law it granted the Plaintiff a right to a

maintained view from his housing unit by ruling that the Defendant interfered with

the Plaintiff's quiet enjoyment by making improvements to the neighboring lot.

3) Whether the court erred as a matter of law when it ordered the Defendant to pay

remediation costs in the amount of $10, 000.00 on property that the Defendant owns.

4) Whether the court overlooked or misapprehended a point of fact in ruling that the

boundary lines of Lot 30 were not in dispute when the Defendant's witness, Mr.

Wentworth, Assistant Building Inspector, testified that there are no boundaries

between the lots.

Constitutional Provisions, Statutes, Ordinances, Rules, or Regulations Involved RSA 477: 44

Application of Real Estate Laws. Buildings situation on land not belonging to the

owners of the buildings shall be deemed real estate for purposes of transfer, whether

voluntary or involuntary and shall be conveyed, mortgaged or leased, and shall be

subjected to attachment, other liens, foreclosure and execution, in the same manner

and with the same formality as real estate

RSA 477:44, II

Manufactured housing, as defined by RSA 674:31, shall be deemed a building for the

purposes of Paragraph I when such manufactured housing is placed on a site and tied

into require utilities.

RSA 205-A:1, II, RSA 205-A:13-c, II, RSA 205-A:1, IV

A manufactured housing park is defined as any parcel of land under single or

common ownership or control, which contains, or is designed, laid out or adapted to

accommodate two (2) or more manufactured houses.

RSA 205-A:2, RSA 205-A:2, I

"Prohibition" and this statute refers to a person renting, leasing or otherwise

occupying a space for manufactured housing in a manufactured housing park.

RSA 540-A:1, II, RSA 540-A:1, III

"Prohibited Practices and Security Deposits." This statute defines a tenant as a

person to whom a landlord rents or leases residential premises, including

manufactured housing or a space in the manufactured housing park.

RSA 205-A:13-c, III

Cooperative housing parks shall be subject to the provisions of RSA 205-A.

Statement of the Facts and the Case

Centennial Estates Cooperative, Inc. (sometimes hereinafter referred to as "the

Cooperative") is a New Hampshire Consumer Cooperative formed pursuant to RSA Chapter

301-A by the tenants of the manufactured housing park in Derry, New Hampshire, formerly known as "Weber's Mobile Home Park". Transcript ("Tr.) pg. 141. The tenants of the manufactured housing park formed the Cooperative to purchase the park from its private owner. By a deed dated February 10, 2012 and recorded at the Rockingham County Registry of Deeds at Book 5287, Page 1515, Frederic (a/k/a Frederick) H. Weber, Jr. and Thomas W. Weber conveyed to Foxy Terrace Cooperative, Inc. a fifty-eight (58) unit mobile home park located on two (2) certain tracts or parcels of land situated in Derry, New Hampshire. Appendix ("Appx."), pg. 1. The Foxy Terrace Cooperative, Inc. was the original name of the Cooperative that was later changed to Centennial Estates Cooperative, Inc. (Tr. 141) The deed into the Cooperative refers to a plan entitled "Land of F.E. & A.E. SanSoucie in Derry, NH" dated May 1966 and recorded in the Rockingham County Registry of Deeds as Plan 900. Although the deed into the Cooperative conveyed a fifty-eight (58) unit mobile home park, Plan 900 only shows forty-seven (47) mobile home sites. Appx. pg. 4. The parcels of land or tracts of land conveyed to the Cooperative consists of approximately 24 11

acres of land. There are two (2) entrances into the Centennial Estates manufactured housing

park and there are four (4) streets within the park consisting of Spring Drive, Wayne Drive,

Brenda Drive and Weber Circle.

Centennial Estates Cooperative, Inc. is a Consumer Cooperative, which is owned by

its Members. In order to be a Member, a person must be an owner of a manufactured

housing unit within the Cooperative, or a member of that owner's household. The

Cooperative is governed by a Board of Directors, which is elected by the Membership. Each

household has one (1) Membership vote. Appx. pg. 5. The Cooperative has adopted Bylaws

and Community Rules and each Member is required to sign a Member Occupancy

Agreement and each Member is required to follow the Bylaws and the Community Rules.

The homes within the community are owner occupied and each manufactured housing unit

within the park is required to pay rent on a monthly basis (also sometimes referred to as a

"carrying charge").

The Plaintiff, Mark DiMinico, purchased a manufactured housing unit that is located

at 26 Wayne Drive, within the Centennial Estates Cooperative manufactured housing park.

Mark DiMinico purchased this home by a Manufactured Housing Deed from Mark P.

Arseneault dated September 12, 2012 and recorded at the Rockingham County Registry of

Deeds on September 14, 2012 at Book 5356, Page 0433. Appx. pg. 22. The deed into Mark

A. DiMinico (and Bianca E. DiMinico, daughter of Mark) states that the tract or parcel of

land upon which the manufactured housing is situated, is owned by Foxy Terrace Co-op, Inc.

The Manufactured Housing Warranty Deed identifies the specific manufactured housing unit

purchased by Mr. DiMinico and his daughter. Mr. DiMinico and his daughter paid

$3, 600.00 for the manufactured housing unit. Tr. pg. 82.

The GIS Map for the Town of Deny shows eight (8) manufactured housing sites on

one (1) side of Wayne Drive whereas Plan 900 shows seven (7) manufactured housing sites.

Appx. pg. 26. Mark DiMinico is a Member of the Centennial Estates Cooperative, Inc. and

he signed an Occupancy Agreement with the Foxy Terrace Cooperative, Inc. Appx. pg. 27.

Article 1 of the Occupancy Agreement is entitled "Premises" and states as follows:

"The Corporation leases to the Member and the Member leases from the

Corporation 26 Wayne Drive (hereinafter called "the lot") in the community."

The Cooperative held its Annual Membership Meeting on May 21, 2016. Tr. pg.

147. Mr. DiMinico was invited to attend the May 21, 2016 meeting, but declined to attend,

because of illness. Tr. pg. 111. At the May 21, 2016 Membership Meeting, the Membership

agreed that Lot 27 on Wayne Drive would be developed, that a septic system would be

installed, and the lot would be cleaned up in anticipation of putting a home on the lot. Appx.

pg. 32. In the summer of 2016, the Cooperative started work on 27 Wayne Drive in

preparation for a new manufactured housing unit. 27 Wayne Drive abuts 26 Wayne Drive,

which is the DiMinico lot. The work on 27 Wayne Drive included cleaning up the site and

preparing the site for installation of a pad for a manufactured housing unit, a new septic

system, connection to the community well, and the installation of a trench for utilities. Tr.

pgs. 153, 154, 155.

There are no defined boundary lines between 26 Wayne Drive and 27 Wayne Drive.

Tr. pgs. 119, 157. Some of the work performed on 27 Wayne Drive may have over-flowed

onto what would be identified as 26 Wayne Drive. Tr. pg. 157. There is a common utility

pole, located behind Mr. DiMinico's home, that supplies the utilities for 26 and 27 Wayne

Drive. A utility trench was dug connecting the utilities from the utility pole to the

anticipated home on 27 Wayne Drive. Tr. pgs. 153, 154, 155.

On August 17, 2016 Mark DiMinico placed a service request (complaint) to the

Town of Deny. Robert Wentworth, Assistant Building Inspector for the Town of Deny,

investigated the complaint/service request and found that fill was brought into the site, but no

wetlands were covered and that no actions were necessary. Appx. pg. 34. Robert

Wentworth testified at his deposition that there are no boundaries between the sites or lots

within the Centennial Estates Manufactured Housing Community. Appx. pg. 35. Mr.

Wentworth further testified that the Cooperative obtained all necessary permits and

approvals for the installation of a new mobile home on 27 Wayne Drive. Ultimately a

twenty-eight foot by forty-four foot (28' x 44') 27

Wayne Drive in the fall of 2017 and this home is now owned and occupied by new Members

of the Cooperative.

On or about November 1, 2016 Mark DiMinico filed a Petition for Declarative and

Injunctive Relief against Centennial Estates Cooperative, Inc. before the Rockingham

County Superior Court. In his prayer for relief, Mr. DiMinico sought Orders from the Court

compelling Centennial Estates Cooperative, Inc. to cease and desist from any further activity

within the confines of Lot 30 without the express written permission of Mark DiMinico.

Further, Mark DiMinico sought an Order from the Court compelling the Cooperative to

remediate Lot 30 so that as nearly as possible it is restored to the condition it was in prior to

the work being performed on Lot 30 by the direction of the Cooperative.

The Court had held a Bench Trial on this matter on December 22, 2017. By a Notice

of Decision dated May 22, 2018, the Court entered a Final Order. Both parties filed Motions

to Reconsider and the Court denied the Motions to Reconsider. This Appeal follows.

Summary of Argument

There is no support in the law or the facts of this case for the court's finding that the

Plaintiff has a leasehold interest in the entirety of Lot 30, as depicted on Plan 900. The clear

purpose of the Member Occupancy Agreement is to allow a Member to either place his or

her manufactured housing unit on the lot in question or to continue to maintain his or her

manufactured housing unit on the lot. The dimensions of the lots throughout the

manufactured housing park owned by Centennial Estates Cooperative, Inc. are not defined

by the Member Occupancy Agreement or by other documents for the Cooperative.

The Plaintiff does not have a right to a maintained view from his housing unit. The

Plaintiff does not have the right to have a buffer on his lot, which the Plaintiff has perceived

to provide privacy. A tenant or Member within the Cooperative has the exclusive right to the

use and enjoyment of his or her lot, but this exclusive right is limited by the rights of the park

owner to enter onto the lot to cut trees and to make improvements to the infrastructure of the

manufactured housing park. The work of the Cooperative by digging the utility trench,

cutting down trees and bringing fill for the utility trench and septic system for the adjoining

lot in no way interfered with the quiet enjoyment of Mr. DiMinico's manufactured housing

unit.

The court has ordered Centennial Estates Cooperative, Inc. to pay for the cost of

remediation for its own land. There is no authority in the law for such an order. The court

cannot order a park owner to repair/remediate its own land, unless the damage to the land

interfered with the ability of the tenant to use his or her manufactured housing unit.

The court made an error when it stated that the boundaries of Lot 30, as depicted on

Plan 900, were not in dispute. The boundaries of Lot 30 were clearly in dispute. There are

not defined lot lines or lots throughout the manufactured housing park owned by the

Centennial Estates Cooperative, Inc.

Argument

I. The trial court made an error of law when it ruled that the Plaintiff's

leasehold estate includes both the manufactured housing unit as well as

the entirety of the surrounding lot.

In its Final Order, the trial court granted the Plaintiff's request for declaratory relief

In making its Order, the court stated as follows: "The court declares that, pursuant to the

Member Occupancy Agreement entered into by the parties on September 12, 2012, Plaintiff Mark DiMinico has a leasehold interest in the entirety of Lot 30 as depicted on Plan 900, as recorded at the Rockingham County Registry of Deeds." Appx. pg. 4. The court went on to state, as follows: "The court further declares that DiMinico's leasehold is subject to all of the terms and conditions set forth in the Member Occupancy Agreement, as well as the terms and conditions set forth in: (a) The Centennial Estates Cooperative, Inc. Community Rules, as may be amended from time to time, as provided for in the Member Occupancy Agreement; (b) The Centennial Estates Cooperative, Inc. Community Bylaws, as may be amended from time to time, as provided for in the Member Occupancy Agreement." Appx. pg. 27. There is no support in the law or the facts of this case for the court's finding that the Plaintiff has a leasehold interest in the entirety of Lot 30, as depicted on Plan 900. The Member Occupancy does make mention of a lot, but does not describe the lot in any detail. Article 1 of the Member Occupancy Agreement states as follow: "Article 1 — Premises: The Corporation leases to the Member and the Member leases from the Corporation 26

Wayne Drive (hereinafter called "the Lot") in the community." Appx. pg. 27.

Article 2 of the Member Occupancy Agreement states as follows: "Article 2 — Term:

Upon payment of the rental herein, and upon compliance with the other terms of this

Agreement, the bylaws of the Corporation, and the Community Rules established by the

Members, all as they may be amended from time to time, the Member shall have a perpetual

right to occupy said Lot. If Member intends to terminate the Lease and Membership,

Member shall provide 30 days written notice to the Corporation."

The Member Occupancy Agreement does not state that the Plaintiff, Mr. DiMinico,

has a leasehold interest in the entirety of Lot 30. In fact, Lot 30 and Plan 900 are not mentioned in the Member Occupancy Agreement. The clear purpose of the Member Occupancy Agreement is to allow a Member to either place his or her manufactured housing unit on the lot in question or to continue to maintain his or her manufactured housing unit on the lot. The Community Rules do obligate the Member to upkeep their lot and to be responsible for the care, maintenance and snow removal of their own walk-ways and driveways. Appx. pg. 36. Section 3 of Community Rule IV. entitled "Sites", states as follows: "3) Yards are to be kept neat and free of debris. Lawns are to be kept trimmed and mowed. If a lot is neglected, the cooperative reserves the right to have the lot cleaned and paid for at the owner's expenses." Section 7 of Rule IV. states as follows: "7) The use of the lot by the homeowner will not interfere with the cooperative's ability to perform any upkeep and maintenance of the community infrastructure. Ask before you dig or plan! DIGSAFE. Regulations apply." The Community Rules do not define the dimensions of a lot for a Member or tenant within the Cooperative. The Community Rules specifically do not state that a Member has a leasehold interest in the entirety of the lot as described on Plan 900. The Community Rules do not state that a Member has a right to a view or any ownership interest in the trees and vegetation on the lot. The court's reliance upon Plan 900 is misplaced. Plan 900 (Appx. pg. 4) 1962

subdivision plan of land into lots for a mobile home park that was recorded in May of 1966.

Plan 900 shows forty-seven (47) lots. The deed into the Foxy Terrace Cooperative, Inc.

(which later became Centennial Estates Cooperative, Inc.) from Frederic H. Weber, Jr. and

Thomas W. Weber dated February 10, 2012 and recorded at Book 5287, Page 1515 at the

Rockingham County Registry of Deeds conveyed a fifty-eight (58) unit mobile home park located on two (2) certain tracts or parcels of land. Appx. pg. 1. For Wayne Drive, Plan 900

shows seven (7) lots consisting of Lots 30, 29, 27, 26, 23, 21 and 19 on the southern side of

Wayne Drive. The GIS Plan for the Town of Derry (Appx. pg. 26) showed eight (8) lots on

the southern side of Wayne Drive where Plan 900 shows seven (7) lots. Clearly, Plan 900 is

not accurate and does not accurately depict what exists in the manufactured housing park

owned by Centennial Estates. This is not a plan that can be relied upon by the court in

making a determination that the Plaintiff has a leasehold right to the entirety of Lot 30 on

Plan 900.

In the last paragraph on Page 8 of its Order, the court stated: "The legal maxim that

all real estate is unique holds true with special force for DiMinico's leasehold." Brief ("Br.),

pg. 31. The court was incorrect and perhaps confused when it made this statement. In this

case, the real estate that is unique is not the lot or leasehold, but it is the manufactured

housing unit owned by Mr. DiMinico.

The real estate that is owned by the Plaintiff, Mr. DiMinico, is his manufactured

housing unit. RSA 477:44, I states as follows: "Application of Real Estate Laws. Buildings

situation on land not belonging to the owners of the buildings shall be deemed real estate for

purposes of transfer, whether voluntary or involuntary and shall be conveyed, mortgaged or

leased, and shall be subjected to attachment, other liens, foreclosure and execution, in the

same manner and with the same formality as real estate."

RSA 477:44, II states in part as follows: "Manufactured Housing. Manufactured

housing, as defined by RSA 674:31, shall be deemed a building for the purposes of

Paragraph I when such manufactured housing is placed on a site and tied into require

utilities."

Manufactured housing and manufactured housing communities (parks) are governed

by a network of statutes within New Hampshire. The primary statute that governs

manufactured housing communities is RSA Chapter 205-A, which is entitled "Regulation of

Manufactured Housing Parks." A manufactured housing park is defined as any parcel of

land under single or common ownership or control, which contains, or is designed, laid out

or adapted to accommodate two (2) or more manufactured houses. (RSA 205-A:1, II) RSA

205-A:13-c, II states that "Cooperative housing parks shall be subject to the provisions of

RSA 205-A."

A tenant is defined as any person who owns or occupies manufactured housing and

pays rent or other consideration to place said manufactured housing in a manufactured

housing park. (RSA 205-A:1, IV) In the Centennial Estates Cooperative, Inc., the tenant or

Member is the owner of the manufactured housing unit that is placed on a lot that is owned

by the Cooperative. Appx. pg. 5. The New Hampshire statutes do not specifically define the

term "Lot" and does not describe the rights that a tenant has to his or her lot within a

manufactured housing community. RSA 205-A:2 is entitled "Prohibition" and this statute

refers to a person renting, leasing or otherwise occupying a space for manufactured housing

in a manufactured housing park. (RSA 205-A:2, I) This particular statute clearly states what

cannot occur within a manufactured housing community, but it does not specifically define a

lot or the rights that a tenant has to his or her lot. The protections that are granted to tenants

within a manufactured housing park by RSA 205-A involve the rights that the tenant has to

use and live in his or her manufactured housing unit on a lot or site within the park.

RSA Chapter 540-A is entitled "Prohibited Practices and Security Deposits." This

statute defines a tenant as a person to whom a landlord rents or leases residential premises,

including manufactured housing or a space in the manufactured housing park. (RSA 540-

A:1, II) This statute defines "Premises" as the part of the landlord's property to which the

tenant is entitled to exclusive access for living or storage as a result of the rental or lease

agreement. (RSA 540-A:1, III)

When a person rents an apartment in an apartment building from a landlord, that

person has the exclusive right to the use and enjoyment of that apartment. In a manufactured

housing park, the premises is the manufactured housing unit and the immediate space

underneath and surrounding the home. The tenant or Member has the exclusive right to

occupy and use his or her manufactured housing unit, but he or she does not have the

exclusive right to the use of his or her lot, to the exclusion of the Cooperative or the owner of

the manufactured housing park.

There is no authority in New Hampshire law or in the Member Occupancy

Agreement, the Community Rules or the Bylaws, for the court to have concluded that the

Plaintiff has a leasehold interest in the entirety of Lot 30, as depicted on Plan 900. The law

protects the tenant in his or quiet enjoyment of his or her manufactured housing unit, but the

law does not grant the tenant the unlimited use of the lot on which his or her home is

situated. The case that was before the trial court included a claim by Mr. DiMinico that the

Cooperative interfered with his quiet enjoyment of his lot. There is no claim that the

Cooperative interfered with the quiet enjoyment of Mr. DiMinico's manufactured housing

unit.

It certainly would be possible for a tenant to be granted a leasehold interest in the

entirety of his or her lot within a manufactured housing park. However, this is not the case

where such a leasehold interest was granted to the tenant. If there was a specific Lease

Agreement that provided for certain rights of use within the lot, then the tenant could argue

that he or she had a leasehold interest in the entirety of the lot. However, in this case, there is

no such Lease Agreement.

II. The trial court made an error of law when it granted the Plaintiff a right to

a maintained view from his housing unit by ruling that the Defendant

interfered with the Plaintiff's quiet enjoyment by making improvements to

the neighboring lot.

In making its Final Order in this matter, the court basically ruled that the Plaintiff had a

right to a bucolic view. There is no authority in the law for such a ruling. In the last full

paragraph on Page 9 of the Final Order, the court stated as follows: "Centennial decided that,

as part of this project, it would also make extensive changes to DiMinico's lot. More

specifically, Centennial removed the forested buffer on DiMinico's side of the boundary by

uprooting all of the trees, removing all of the vegetation, and filling in the area with many

truckloads and tons of boulders and dirt. DiMinico's bucolic view was replaced with a six

foot wall of dirt approximately 12 feet from his bedroom window."

Centennial Estates Cooperative, Inc. is the owner of the land within the manufactured

housing park. The tenants have an exclusive right to the use and enjoyment of their lot,

however this exclusive right is limited by the rights of the park owner to enter onto the lot to

cut trees and to make improvements to the infrastructure of the manufactured housing park.

Rule IV. entitled "Sites", Section 7 states in part as follows: "7) Use of the lot by the

homeowner will not interfere with the Cooperative's ability to perform any upkeep and

maintenance of the community infrastructure." Appx. pg. 36.

The Cooperative entered onto Mr. DiMinico's lot to dig a utility trench from the

telephone pole that was behind Mr. DiMinico's lot to the adjoining lot. This required the

Cooperative to remove trees and to bring in fill so that a trench could be created. The

Cooperative also needed to infringe upon the DiMinico lot to create a proper landing for the

pad for the new home that was to be installed on the adjoining lot and to properly install a

new septic system. There is no prohibition against this action found in RSA 205-A:2. The

Cooperative could have done a better job in explaining what it was going to do with the

adjoining lot to Mr. DiMinico, but this did not change the fact that the Cooperative had a

right to enter onto Mr. DiMinico's lot and perform this infrastructure work.

The court cites no authority for its conclusion that the Plaintiff had a right to a bucolic

view. In fact, there is no authority for this position. By concluding that the infrastructure

work that was performed partially on the DiMinico lot interfered with Mr. DiMinico's quiet

enjoyment, the court made an error of law.

The Plaintiff did not specifically bring an action against the Defendant in this case

pursuant to RSA Chapter 540-A. In his prayer for relief, the Plaintiff requested an Order

from the court that would compel the Cooperative to cease and desist from any further

activity within the confines of Lot 30 without the express written permission of Mark

DiMinico. In his prayer for relief, the Plaintiff did not make a specific reference to the quiet

enjoyment of his lot.

The Plaintiff has a right to the quiet enjoyment of his home, which is the manufactured

housing unit located at 26 Wayne Drive. The work of the Cooperative by digging the utility

trench, cutting down trees and bringing in fill for the utility trench and the septic system for

the adjoining lot in no way interfered with the quiet enjoyment of Mr. DiMinico's home.

The court has implied that by altering his view, this had interfered with Mr. DiMinico's quiet enjoyment of his home. Again, there is no support in the law for such a conclusion or implication. If the Cooperative had somehow restricted Mr. DiMinico's access to his manufactured housing unit or improperly locked him out of the manufactured housing unit, or shut off the utilities to the manufactured housing unit, then Mr. DiMinico would have had a claim against the Cooperative for interference with his quiet enjoyment of his home. No such activity occurred in this case. RSA 205-A:13-c, III states as follows: "III. In the rental of any lot in a manufactured housing park there shall be an implied warranty of habitability whereby the park owner warrants, at the inception and throughout the tenancy, that, if provided by the owner: (a) There is a functioning water supply system which, if the source is provided by the owner, shall provide safe drinking water in accordance with the applicable standards established by the department of environmental services and quantities to meet ordinary household needs of the tenant. (b) There is a safely functioning sewerage disposal system, which shall be in accordance with the applicable standards as established by the department of environmental services, available to the tenant household." By performing the work on the adjoining lot and partially on the lot occupied by Mr. DiMinico's home, the Cooperative did not interfere with the implied warranty of habitability. Mr. DiMinico has claimed that the Cooperative interfered with his quiet enjoyment of his premises when it prepared the adjoining lot, 27 Wayne Drive, for a new manufactured housing unit. This claim is not supported by the law or the facts of this case. Mr. DiMinico continued to have full use and enjoyment of his manufactured housing unit located at 26

Wayne Drive. Tr. pg. 122. None of the statutory prohibitions described in RSA Chapter

540-A were committed by the Cooperative. At no time, did Mr. DiMinico lose the use of his

premises, said premises being his manufactured housing unit. Adams v. Woodlands of

Nashua, 151 N.H. 642 (2005)

III. The trial court made an error of law when it ordered the Defendant to pay

remediation costs in the amount of $10, 000.00 on property that the

Defendant owns.

The trial court granted the Plaintiff's Request for Injunctive Relief and further ordered as

follows: "THE REQUEST FOR INJUNCTIVE RELIEF IS GRANTED AS FOLLOWS: (a)

Defendant Centennial Estates Cooperative, Inc. shall cooperate with Plaintiff Mark

DiMinico to develop a plan for the partial restoration of the leased lot. This plan shall not

require Defendant to spend more than $10, 000.00 for the actual restoration work and related

engineering. (Thus, the partial restoration plan will not include the full scope of the work

proposed in the two estimates that the Plaintiff submitted at trial unless Plaintiff is willing to

bear all but $10, 000.00 of the cost.)"

The court has ordered Centennial Estates to pay for the cost of remediation for its own

land. Once again, there is no authority in the law for such an Order. The Plaintiff cites the

case of Morris v. Ciborowski, 113 N.H. 562 (1973). However, this case does not in fact

support the Plaintiff's position. This is a trespass case, not involving a leasehold estate.

The court cannot order a park owner to repair/remediate its own land, unless the damage

to the land interfered with the ability of the tenant to use his or her manufactured housing

unit. Certainly, if there was damage to the manufactured housing unit or any outbuildings

owned by the tenant, then the court could order the park owner to pay for these repairs. In

this case, there was no such damage. In the third full paragraph on Page 17 of the Final

Order, the court stated in part as follows: "These authorized purposes certainly include the

need to improve the abutting lot by installing electrical conduit, underground septic facilities,

and a concrete pad. However, applying the preponderance of the evidence standard, this

court cannot find that it was reasonably necessary to deforest and regrade DiMinico's lot to

accomplish these authorized purposes." Br. Pg. 40.

By making this ruling, the court is substituting its discretion for that of the park owner.

Again, there is no authority in the law for making such an Order. RSA 205-A:2 does not

prohibit such action by the park owner. RSA Chapter 540-A does not prohibit such action

by the park owner. The work performed by the Cooperative on the adjoining lot and

partially on the DiMinico lot in no way interfered with the quiet enjoyment of the premises

by Mr. DiMinico. The premises in this case is the manufactured housing unit and not the lot.

The court held no authority to order the Cooperative to remediate its own land. "As a

general rule, every person has a right to subject his property to such uses as will, in his

judgment, best subserve his intentions." City of Franklin v. Durgee, 171 N.H. 186 (1901)

IV. The trial court overlooked or misapprehended a point of fact in ruling that

the boundary lines of Lot 30 were not in dispute when the Defendant's

witness, Mr. Wentworth, Assistant Building Inspector, testified that there

are no boundaries between the lots.

In its Final Order, the Court ruled as follows: "Because the boundaries of Lot 30, as

depicted on Plan 900, are not presently in dispute, and because the lot has not been surveyed

in connection with this action, the court does not further define the boundaries of the lot."

Br. pg. 2.

The boundaries of Lot 30 were clearly in dispute. Plan 900 is not an accurate depiction of what exists within the manufactured housing park owned by the Cooperative. The court did not hear from any expert witnesses with regard to the boundaries as depicted by Plan 900. Mr. Wentworth, who is the Assistant Building Inspector, was not an expert witness. However, Mr. Wentworth testified at his deposition (said deposition was admitted as a full exhibit in this case) in a response from a question from Attorney Parnell, as follows: "There are no stake boundaries in the park." Tr. pg 119

Mr. DiMinico submitted a drawing to the court that he claimed represented the lot lines

for 26 Wayne Drive. Appx. pg. 47. The drawing shows a rock wall. Mr. DiMinico

admitted during his testimony that on Plan 900 that there are no stone walls. Tr. pg. 88.

Robert Belanger, who has lived in the Cooperative since 2008 (Tr. pg. 140) testified that he

is the Operations Manager for the Cooperative. Tr. pg. 141. As the Operations Manager,

Robert Belanger testified that he is in charge of infrastructure; plowing, septic systems;

getting septic systems put in; getting them pumped; trash removal; setting up contracts with

people; calling in plumbers; electricians; whatever is needed to be done in the park. Tr. pg.

pg. 142. Mr. Belanger testified that nowhere through the park are there boundary markers.

Tr. pg. 157. Mr. Belanger testified that there are no defined lots throughout the park. Tr. pg.

157.

John Regal testified that he lives at 49 Weber Circle and that he has lived in the park for

thirty-seven and a half (37 '/2) years. Tr. pg. 181. Mr. Regal testified that Plan 900 is not an

accurate depiction of the lots that are in the park. Tr. pg. 182. Mr. Regal testified that during

the years that he has lived within the park, new sites have been added. Tr. pg. 182. Mr.

Regal testified that there are no boundary markers within the Centennial Estates community.

Tr. pg. 189.

Mr. DiMinico, as the Plaintiff in this case, had the burden of proving the boundary lines

for his lot. Mr. DiMinico did not meet this burden. Despite the lack of clear boundary lines,

the court ruled that Mr. DiMinico had a leasehold estate to the entirety of Lot 30 on Plan

900. This ruling is not supported by the facts of this case.

Conclusion

Mark DiMinico owns a manufactured housing unit, which is located at 26 Wayne

Drive, within the manufactured housing park in Derry that is owned by the Cooperative.

The manufactured housing unit is considered to be real estate. Mr. DiMinico does not own

the lot at 26 Wayne Drive. The lot is owned by the Cooperative. Mr. DiMinico, through

the Member Occupancy Agreement, Bylaws and Community Rules, has the right to locate

his manufactured housing unit on Lot 26. The Cooperative designates the parking area or

areas for the lot and the Community Rules defines the relative responsibilities for the lot

between the owner of the manufactured housing unit and the Cooperative.

There are no defined lot lines within the manufactured housing park owned by the

Cooperative. There are no written documents that give Mr. DiMinico the right to a view or

the right to a privacy buffer. The Cooperative has the right to enter onto any lot within the

manufactured housing park to improve or repair infrastructure or to cut down trees or to

clear brush. The Cooperative does not need to obtain the permission of the owner of the

manufactured housing unit before it enters onto the lot to perform work on the construction

or repair of infrastructure or the removal of trees or brush.

The court committed an error of law when it ruled that Mr. DiMinico had a leasehold estate to the entirety of Lot 30 on Plan 900. Plan 900 is not an accurate depiction of what exists within the manufactured housing park owned by the Cooperative. The trial court made an error of law when it ruled that Mr. DiMinico had a right to a bucolic view, a right to privacy and a right to a privacy buffer on his lot. The trial court made an error law when it entered a Declaratory Judgment in favor of the Plaintiff against the Defendant. The Final Order of the trial court in this case must be reversed. Oral Argument The Plaintiffs/Appellants respectfully request oral argument of not more than 15

minutes. Copy of the Decision Being Appealed A copy of the decision below that is being appealed or reviewed is appended to this brief. Certificate of Service I hereby certify that the within Appellant Brief and the Appendix have been electronically filed this 8th day of March, 2019 and a copy of said Appellant Brief and Appendix has been electronically copied to William B. Parnell, Esquire, Attorney for the Plaintiff. LAA:k r‘ • Robert M. Shepard — NH Bar # 2326

P.23 THE STATE OF NEW HAMPSHIRE JUDICIAL BRANCH SUPERIOR COURT Rockingham Superior Court Rockingham Cty Courthouse/PO Box 1258

Kingston NH 03848-1258

NOTICE OF DECISION File Copy Telephone: 1-855-212-1234

TTY/TDD Relay: (800) 735-2964 http://www.courts. state. n h. us Case Name: Mark DiMinico v Centennial Estates Cooperative, Inc Case Number: 218-2016-CV- 01205

Enclosed please find a copy of the court's order of May 21, 2018 relative to:

Judgment

May 22, 2018 Maureen F. O'Neil

Clerk of Court

(595)

C: William B. Parnell, ESQ; Robert M. Shepard, ESQ; David Michael Stamatis, ESQ

NHJB-2503-S (07/01/2011)

-Judgment is granted to plaintiff Mark Dirninico 0, , requestlpr, deptar.a_to RAN:MD, gpiptiows: T e.doirrt that, dedlares' pursuant to t e-Mem er Occupancy Agreement entered into by the partieS on September 12, 2012, plaintiff Mark Dinninico has a leasehold interest in the entirety of Lot 30, , as depicted on Plan 900, as recorded at the Rockingham county Registry of Deeds. Because the boundaries of Lot 30, as depicted on Plan 900, are not presently in dispute, and because the lot has not been surveyed in connection with this action, the court does not further define the boundaries of the lot. if a _di§pijtelatOt'artp$-:cpnberrijn4, 1110-prpci8e precise-location of any boundary line, fthot*010:40.- -0 ifferOnt0600: action--fOrres•ludicata, p*peSeS.--_- fLki --, j'EF 041 1"=" • "Ii‘ • $.% cis • •, •••• 4-1, A00, --00 3

'Po:170. m twp z 1. 0 44

-611.44 4

.wk

h •

▪ 4140 '

7.r.i.14 Far ▪ 11▪, 5 14YM 4:44, 40A73t1i,

The court further declares that Diminico's leasehold is

subject to all of the terms and conditions set forth in the

Member Occupancy Agreement as well as the terms

-and conditions set forth in:

(a) the Centennial Estates Cooperative, Inc.

Community Rules as may be amended from time

to time, as'provided for in the Member Occupancy

Agreement;

(b) the Centennial Estates Cooperative, Inc.

Community Bylaws, as may' from

time

amended

time to time, as provided for in the Member

Occupancy Agreement.

Pursuant to those instruments defendant Centennial

Estates Cooperative, Inc. has the right to enter upon and

physically alter the leased lot for all purposes expressly

and impliedly set forth in the Community Rules,

including but limited to:

(a) inspecting, planting, pruning, removing and

replacing trees, as may be reasonably necessary

to protect nearby structures from damage or as

may be reasonably necessary to accomplish the

purposes set forth in subparagraphs (b) through

(g) below.

(b) inspecting, installing, maintaining, repairing

and'replacing underground utilities, underground

water systems, underground sewer and septic

systems, above-ground utility poles and overhead utilities;

, (c) inspecting and improying storm water

drainage, Whic _m y include the creation, repair

or such vegetation, =

'and Othpi-iri*roVpilie_ntp as-maybe -

(d) making improvements to abutting lots, when it; '

is physically necessary to "use the leased lot as a: -

temporary staging area;

• m(%)

26„,

(g) complying with local ordinances and state an d

federal law;

To the extent that the Member Occupancy Agreement,

Community Rules and Bylaws vest defendant with

discretion relating to defendant's entry onto and

alteration of the leased lot, that discretion must be

exercised consonant with the implied covenant of good

faith and fair dealing.

The request for injunctive relief is GRANTED as follows:

(a) Defendant Centennial Estates Cooperative, Inc. shall

cooperate with plaintiff Mark Diminico to 'develop a plan for 'the

partial restoration of the leased lot.

This plan shall not require defendant to spend more than

$10, 000 for the actual restoration work and related engineering.

(Thus, the partial restoration plan will not include the full scope of

the work Proposed in the two estimates that plaintiff submitted at

trial unless plaintiff is willing to bear all but $10, 000 of the cost).

Within fifteen days of the effective date of this order, the

parties shall meet and confer in good faith regarding the

development of the partial restoration plan.

Defendant shall obtain all necessary vendor estimates, within

forty-five days of meeting and conferring with plaintiff.

The parties shall.then promptly meet and confer for a second

time in an effort to agree upon a final plan.

If the.parties cannot agree upon a final plan, either party may

move for a judicial order setting forth the, particulars of the

restoration or partial restoration plan. If the court determines that

-the hearing was necessitated" by the bad faith, Ori-the.pet of one of.

the-partiet, it'may-sanction that party and/or award attorneys':: fees

and costs in connection with the hearing.- If the court determines

that the hearingmas necessitated by a good faith dispute, both

parties will bear their own attorneys' feet and costs.

'TL

er *4 4 <W 6, 4. 4.1

44.2107* 3, 0 igRe E. •, •• Zs-41W

-

•

• Z*7, .-IiPrle, n; ; e.r„i r. r‘f, Fre

merit ehtitleS- 1

obligation to-:prevehtlloodirig:inlhq-prea:adjadent to DirnihidO's-- hbnie: - - • - - - - - _ -

parties dispute Whethet -Centehnial has, rriet this

the s dispute Whether - irriihido'§-rjghtito dui, e partie - -

e_ViandiacturetrHOUSihaRbr:=DithiiiiedSs.Le-a-Se&LO

PPPY§P=. WO:-ri$TPall')0*4re'do'tti

ah, 90C) was apprtiiied, by:the Derry PlahninT pard ih 1967; IR is Oaptione

'5ubdiviSjOh of Land Into LOts

, 11i1Obile Park

iH

blindaries'of "each.:lot WobldTbe Marked b

eyed, !1.1 'Mate 0:--c, p_ resent: tonn uratiiiii:of TIO,

lots -"omitiofDete9-s--tx?ma

-.

, entennial is

manufattured homes:_andbutbuild1109s:..they redejvespri_arate.taX bills f0t3theSe = -

struCtiiretf'.See, RSA 72:7-a, I.

-

4•Dirriffido.ati -is, d, au9hter purchased -a rnanufactOred home in'thicentehnial

e'deed to the manufactured home states that the home is

catedonc, :• arot. thepat „, „4„ b _ _ _ eed..W47si nedb041 ofthP: •

At t, ot., ttLe, 'Cark and the cooperative were known FoXV Terrade Co-.:.:The CoOberatiVeliter'bhahged its naMe -to. Centenpial:EstateSQOOberative, Inc.

- _

ock_1etters; 'that -

mar o OUti' • aries e onl er-'s

--all`sttebt'lingintelseCtibtit •_. nd

al maxim thatNall=real-eSiate sOeciarfOrCej

DirnibicO's lease tL Lot 30 is a corner lbt located at the iierSilront of the perk.: It is

at4tin0Jhe lot from Route 28 Bypass; To the North, , .- lot-faces Wayne•Driy, e

P.32v; 14, 1

abiiable-'andatfrattiVe to'-a, neWlenant.::-Centennial had to''(a

rb(ging-all of the trees, removing -a

=vegetation, and filling n es:area with Many truckloads-and tons of 00(ilderS and dirt:-

Diminibo'S:bucoliC vieWWas replaced with a Six-foot wail of dirt:approximately 12 feet

from hiS bedroom window.

Diminido was not home when, this occdr-red because he was visiting his father for

, -

several-days. Although the project had been diScussed at Centennial's membership

The_prOject brasfically, allereb the drainage fbr storm water runoff. Piminico's _ „.„

home sits at the bottom a hi Wayne driye runs downhill past Another

--road, ''prenbar riVe, sloOeS dOWn -; andititersects7Wyn'e Drive just alooYe-Pirninido's

Until. Centennipl filled and-regraded DiMiniCo's lot, - the_:stortnAryter- w ater_ down asYvOle-

and did not cause any flooding As a result of, the regrading and deforesting of; the lot,

, dee0:tirelrad s

ohibittenan

.

2.F.figg.SW=5",

_-constftiCted•.'a-_heW:.perrn iti$talledlOddi_tional.irpOli-OVerneht o feVen

neW, draina Stern VaS'ritittested, 'e'StOrrri Water oh--sildWnlelt even

f ill =prevent of Dim • _--- • ••• •: _ • _

entenhial-usedAhe; northeaStern::

Ten'..-it•conStr.ciotedjhe e-LabOttinglot •', Diminido-objette

e'tesult; :theAaWn WaSHmarre-

itninicoa-, --no ice -o an -expulsion, heari

-q.raj(ey'se4Dirtiinid-06f.(a).intejtfennO-Witil:tne:deVe100-nent':Olthe. 41:06-g, , lot,

0.6 t Oarna0bg.::thOlawm eildtideJti

Zp()JOrr.thks

ea

The:Claims: `D'iminico=Seeks OhlviniundtiVeAn Declaratory Relief.,

HeDoe:Not Seek A Statutory Award Of-Att&ney's Fees

ppogt-aphYand vegetation of the lot DiThinico also asks for an award of attorneys' feeS

- -

'tiny:.,

.1061.07! br, 7cQm pn, sa

Petition [Or Deb th ra

not nAentibtario-ne irrprijOAneyersd-ugit &ON:the.bOrti

e made_ rid=rneritiOn:!O State-Me

ermore'-: irriinico did not=present any eVidej)be.:b

resefittptirilbinyp:indernind -the: irrOOtion.in the -ve ue--Of ea$:011-91c1, or the

‘G,

a

Cornrii0h4 Rules and (b)Harkeern.

at., Ceptenhial--Sgb.Stanii011y, Olteresi ', the t60.6gi3aphy and egetatien of his:leasehold andreffeCtivelyf_gayea:pprtien-Of hileaeh0.1(1 te, aq-a _ ennt, ; a S.^ ulet, Enjeyment In Gerieta DiminiCo, claims t at:iCentenplarvielate etoyenan_ of quiet enjo z, -; _ ainiFor Deforesting, RegRa'ding And E ffectively Changing-I:he, „, irrientiens Of The Let Dinhinico'S Leasehold Includes The Entirety Of Lot30 On Plan 900

greStation and_regrading of his lot re=quires the

court to 4.eterhiiiiffelhescOgp Diminico'S leasehold. Diminico maintains that he'leased

eNCted on Plan 900 andlhat Centennial had no right to enter _

.aacif.1.2

:.., -0'-/-e..."-...-6-4, , , , -_- "rn

rr., - -' ----, -----, , , , 51, 7, -6.--, ...A., -, :-''-, -----; :e-3-e--"--1; 4.2--t-, --, -r:-.73.1-'= ---- —:.-•, , z-, -„, , , , -e•_, _ —:?-6.15, --------1---- -4-- --.::: ', ..% -.:.--, e:, .; .- W, 4 f, -- Z2. 1:-:, ..`"-, •-•-, --' •; .: - '. -.., -„; -‹, .; ., , .-7.-4-. 7.**, -, , ir.t. •ti; -----:-'4z, '"--s4, , , , , -11, ---:_-, -, -, *.-E---1?.i-s, v:-.0-, —...g:004 • =1, -, -.., 7E-7---..*--kl, .., .4-..., -...-4x„, , ....., ..., t - t=oez. Q• 43-Wal, lia:

•

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*Agg€014W04-e-4V le, P.ROAV00..; .a

4, , ..F4p1A

P.37

except as=necessai

arc ain3s

crest an

attonlyilease wriinico=4- oo printo. 4 is_441.erA

an, , , a

per to ieS-olve i§po e court must c-obStrue t les _written

.ccupancy

The 00p puSt-re4:11::ejil::Ofliese OCUrrientSjogeti-Jer2'0=0:tingle*hble

lain language Of-the lease unambiguously grants

lintriicb a leaSehold interestAn'the entirety Of LOt 30, as depicted in Plan:900._ First of.;

'; :the Community kuie..00kb repeated refetenceto Dirninie(iS:Jights and

ricf.'1-21

manufactured housing in_a-Thanufactured hodsin ark, " No dou

-prefei-16 -liVe in a park in whibh they are, only responsible forlheir h-orfies, while the

landlord isireSp.onsible for*vetything':et$0: _

ti.44r 4, nr

a

P 401

rkertnent:the iities -pgto0 A09:th:e. tea-Se

'Rules -and_ that laWs

entennia

Regraoe

enbli as-su

pfor04.0-4-clf. 601-000, '01riii, iiidO.!Ottd:, idebnibliS

e, :alt6redt6 accomplish this. =Why wouldn't a

er'dh-th-e abutting lot suffice? What reasonabraralternatiVes

r0, donsidered2_in Whit Was, iminido's-lancLadttially-iised for? -

errriOre eraV/ass:nd-eyl atany:elettridaredndOita ua y

asS'Odthroilghl)irninidp's lot and (b) there Was no evidence that DiMinico'S lot w

needed serge as a staging"area. No WitneSsig -gested that trucks could not park -, on±

F40.0 oirfeVW,

41.

kfit-§Arrate, :t-le

• 50V*4

v/100010*

ylrAW.4.0, 11*..0, 4%6W 744 '

-0-evidenee-w

Oofett and destroythe ibriftheLlb

_with StibStantia(!discritiOn Ut..Centerinial-muSt:ekercise this diSoretion-in ab"cdrdanc

witht eittiplied'-'00vOnantb Odd:faith- and faifidealin CentrOnicS'Obr-Ci.

.714.-31(189

er, akagreOnenl -, that oppo0.tir.._ Weir, ..dr:sil.eri0, :.-tO.inNiest--One, :

egree, .(if diScretiOnirpOrfortanOeSu idienttO-, 000f:*iOth'er

artY

intOntjo-, be bOund by-an.-bnfOrceablk-oOntract:raiseSan--inipliedobligation

, , , gOodlaitIO:ObSerye'); :eaSOnajolO'liniitS in exercising that -discretion;

consistent with the parties' purpose or purposes in contracting.

ivingston v:

.:.., , r., ._....

di$0.:8$0 NOiR 12-!PMP:.):lii‘0'10).^q..R.0$tql0 -1# 1tr-(0. 000 Of ', ..Cot:07-0qt, •, 1, •._., :., , :., ....

.ent-annFalAii-Olate&DirfniniCeS.':Ridhl riroVnient

DefoieStirigW6d:.?..13e0f.adifi4''Hi-CLIbt '- „......., „., _..._..

noted:reach:ofthe right-to:Oui'etenjO ment occurs.when t

landlord ‘`subStantiallyinterferes-Oth:thetdliarit'S beneficial 0Se or.enjoyment of the

,

:prettiS6Sr-:CroWley, -147 at 389; Centennial's cOndutt -clearly transgressed thjsrr

standard,

Centennialffectively rernoyed a portion of Ditninico's lot and added itito the.

abutting lot Centebbial then told Dihninico that he actually had no right to any portion of

47- ' •

7AL-Ef

, -,

r-• lf~ 4., • • • r VgaMi•-tigai*A4g*g:

•

•••

p-fOOtprint--srOf his home: It pa:tke c r-ON. 02-t

prigOs.the ra of the lot

Orsoant to RSA1, -491:22, the court itilieS:the judicial declaration set forth in bold

n injunction thoulq issue only if the Olaintiff'OtoveS (a).a r0<, of immediOto an

irrepalAble hbral, (b) the lack Of an 'adequate remedy at law and (c) that the, balance of

equities and bardshiris'militate in, favor of issuing the infunction. New Hampshire

--,

", '• •, •

• %'-•=•'.

-1:-.AZ" •.1,

• • r • • • • ', 71, -f-ZejS%-g. •, , 0., ; )64

nvirontriehtal, SerVicev.:,

ampshiielie-partrherThb

uadeRea

urstcirt-Ehterptitetig

of these: el

full-rernecliation wOOld, bp', e6lual to 54 month(i.e. four andal, .half

would require each of theieboperatives 57 tenants --to, pay more thah $500. That would

be a heavy burden and it would be disproprortiOriate to the value of Diminico's Ibt.

At the same tirne, a, partial rernediation obuld go a very long Way towards

rOtpritlg:Dth-Oibb'p $'ecjp$iori privady -and vegetatiOn. Accordingly, the:court

e anceof:e fayor-s.-ah; afftErhative, injunctiorl, re uiriri

f.t4i •-•

Ictftvegi..9rit 63W.: TRA.4., -WW_A;

iminco O'sed -on the dama

flooded Soi.$) erfiandr-3t.qsevere ti'Violate is-right tbAdiet -enjo ment of hiS

leasehold.

_

important, More has, not that any sort, of • • •:„

judicial relief is necessary tol•dpad Centennial into comOlyjpg -with, 4i, o1)110atjOh:_to_:.:

rplariage; storrn water"runoff. -Therefore, -the court finds that-(a) there.is-:.no-pteSent.:

0.t--, , , , .--Z4-24, 5-; , .., , , , ----..„, , --, _r '•.7ff..6; _, ..7.-., ., "''*; .-, , , --, -, -.S., --, ..., , •, '-' 7.-t-, -. —, -; 5:.• -47--...--4, ?---:=•- -:25.4t----i., --t-t-.., =5-`, ..-, 0-...-, -„4.--; -, -., 1•4., -, , , , i, •-•:---; , ---•-, , ._, . ••••-_, -, ›, •*; ..--, -, 7; 7----:.-•...----_, -.7„.7, --.-- • -- li.o--------7*-0----, :-. - - --, '" -._ -. _....., .., , , , , , . - •• • - ---, .---_•• -4:4: -, ; .., •ef". ' •, ., , , _„;

riot file `s:ui

OreVehtiOnflooding and b) there is no present nee or jnjunOti4-relieLtO

E F:

t.eeven a -legal:pp lon':is-pOrnnle, n90. 00perat; Vez

homeowner-and-the Cooperative prevails m said:action or on is

WithdravVrtb)iihe-hrli:6-OWner, -he".hOrOptliiiirier-'0011.-rip0 required to

_reimburse the Cooperative ln:deferidant'such actioh in no event shall

the Cooperative::be; td.spOosiblefor, itiaying the homeowner's legal

fees. This is justifiOdiriPPAhO-IVillOW -Der is a Men') r of the

„, copperaIive4ottAipa jol-.Jobo(Ottigp09, RFrtjw

*W. **6),

niphasisfa e areVlii5" -4, 41i.47667itrac attorney.:

irninico has not.p-r-dyic4E1. any, paselaw, --and the ci

that L:1 go§t§-ittli§-Contra, Ottjal'attan 0060H§ -.Lin'ehfcir(pable7:-, •. •.„.•, ._.., ••

s atti oes', 'Of contracts-; canTopiy-provide forratibrbtal feeShifting.

Raiek-361q.:--2'(providing that any fee shifting provision in certain consumer stallMent pOntractS, must be feciprocal). Thisrule does not apply to a, cOntradtbetWeen

afiu agure.omepa_IX.constArneropperativp, , , , , ah0-, 0, gler, ntler, :.s.:.:

'1454-.411%60

"4%.`V; 40‘44, -4c -

Mark Diminico v. Centennial Estates Cooperative, Inc.

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