Mark Diminico v. Centennial Estates Cooperative, Inc.

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This is, this is Case 2018 0 4 9 0. Mark Doo versus Centennial Estates Cooperative, Inc. Good morning, your honors. Good morning, Robert Shepherd, representing the appellant defendant Centennial Estates Cooperative. I do wanna spend a minute just to explain what the cooperative is. Centennial Estates is a co consumer cooperative that was formed by the tenants of the former Weber Mobile Home Park in Derry, and they purchased the park. Uh, there are presently, I believe, 57 members of 57 lots within the community. Each member is an owner of this cooperative. Centennial Estates is called Centennial Estates because it was the 100th resident owned community in the state of New Hampshire. There are now more than 125 resident owned communities in the state of New Hampshire. And these are all mobile home parks or manufactured housing communities. The park that was purchased, um, is described on a plan, uh, a 1966 plan recorded at Plan 900 in the Rockingham County Registry of Deeds. The case that's before you was a claim by Mr. Doo, who was a member who is a member of the cooperative. That the cooperative interfered with his quiet enjoyment of his lot. It's not a case where Mr. Domenico claims that the cooperative interfered with his inquire enjoyment of his home. Mr. Domenico purchased a 1986 mobile Home unit in 2012 with $3,600. It is located on Lot 26 Wayne Drive within the cooperative. Um, Mr. Doo claimed that the cooperative interfered with his, uh, quiet enjoyment to the use of the entire lot when it started to renovate the lot next door to it, the adjacent lot to it. Did Mr. Dominico allege a landlord tenant relationship with the cooperative? He did not, uh, necessarily allege that it was not a five 40 a case, uh, brought pursuant to the statute five 40 A, which is a typical interference case, uh, brought by a, a tenant against a landlord. So he did not, uh, specifically allege that what he alleged was that he had a leasehold right to the entirety of his lot, and that the landlord who is the cooperative, which he was part of, came in and entered onto his lot without his permission and started to renovate the lot or to improve the lot next door to it so that it could accommodate a new Cooperative's rights spelled out in the lease rights of access. So it's an interesting question, and that's what the case is about. Is there a lease here or not? The court found that there was a lease and the court found that there was a lease by looking at a combination of documents, one being the member occupancy agreement, another being the rules of the community, and the other being the bylaws of the community. So the member occupancy agreement is the closest document to a lease that we have. And the member occupancy agreement, which you have, um, does specify that it's 26 Wayne Drive is the lot. It does specify the term, which is perpetual. And the reason why it's perpetual is because the whole intent here is that this property will remain in perpetuity as a manufactured housing community owned by the cooperative, Does the agreement define lot? The agreement does not define the lot. None of the documents define the lot. Statutes don't define the lot. That's the whole basic problem that we have in this case. So Do you, do you find it an ambiguous term then? The lot is definitely an ambiguous term. Um, but when you take it in the context of mobile homes in general, we don't find it to be ambiguous. The purpose of the occupancy agreement, the purpose of any lease agreement in a manufactured housing community is to allow somebody to place their mobile home manufactured housing unit on the lot, and to live in an unfettered condition in that home. To have access to that home and to be able to have the use of the area surrounding it, it doesn't necessarily define the entire lot. Um, They can park the car there, They can park the car there. They Can build a shed and store stuff there. They can and They can put up a volleyball net If the rules permitted. Yes. So the community rules Put a fence as well. Can put, can they put up a fence? Do allow a perimeter fence, not a, they do not allow a perimeter fence. They allow a decorative fence to be put up with the permission from the board of directors. It states it specifically in the community rules. But the issue here, what the court found is that Mr. Domenico had a leasehold right to the entirety of lot 30 on Plan 900. There's many problems with that finding from the court. Number one plan 900 is a 1966 plan that showed 47 lots. There are currently 58 lots in this community. There's no plan that shows the 58 lots. The town of dairy doesn't acknowledge that this plan is controlling. Um, and the town of dairy had no issue with, um, the cooperative developing the lot next to Mr. Domenico's lot. So that's problem number one. Relying on Plan 900 where there was no expert witness, no surveyor to say that Plan 900 is accurate or even depicts Mr. Domenico's lot was an error by the court. Well, Mr. Doo doesn't claim that nobody has a right to develop the lot next door. He's just complaining about what's been done to his lot. He complains it's right. He complains that you can develop the lot next door, but you have to have my permission to come onto my lot to do anything that affects the lot next door or affects my lot. Did the cooperative put any evidence in indicating why it had to take the vegetation down, remove the trees? Was there any purpose To that work? Believe it did. I believe it did. I think the evidence was that the vegetation, uh, which was basically brush had to be taken down, was to, uh, bring in fill so that a septic system could be installed on the adjacent lot. Also, there needed to be a utility trench, um, prior to this utility trench being put in the unit that was there and taken away from this adjacent lot, the electrical line just ran on the, on the ground, on top of the ground. So now they were required by the town of dairy to put a utility trench in. So is Your position that the cooperative, if it's decided to do so, could, could split Mr. Domenico's lot in half and put another mobile home on the other half of his lot If they could get the permission from the town of Derry, which would probably be unlikely, but yes, it's our position that the cooperative can define the boundaries of the lot. Um, the situation though also that I wanna point out to the court, if you know there are leases out there, for instance, farmers will lease a field so that they can hay the field or people will, will lease attractive land to wood it. In that situation, there are specific rights that are granted to the land. In this situation, the court found that, uh, Mr. Domenico had a right to privacy, that he had a right to have a buffer on his property. The court found that he had a right to what the court described as a bucolic view. Um, the court found that, uh, he had a right to this vegetative buffer, but there's nothing that states that in any of the documents anywhere. There's no lease agreement that says you're leasing lot 30, and by the way, you have a right to a view. But if you lease my house and then I come in and say, well, you're leasing my house, but I'm gonna park my car in the driveway and I'm gonna take down these two trees in the front yard during the term of your lease, I, what stops me from doing that? So I think if you parked, if in that situation, if somebody parked the car in your driveway and it interfered with the use of the property by the tenant, that would be a violation. The tenant could go five 40 a to the district court and get an order. So here, the construction truck staging on the plaintiff's property, isn't that the same thing? It's not because the allowed parking for Mr. Do Dominico was down low where his house was up above. He was not allowed to park there. He parked there without the permission of the cooperative and he had ample parking down below. But the issue that I'd like to make the analogy of the point, yep. If you rent a single family house, think of it that way. On a lot, on an individual lot, say it's a ranch style house. So it's akin to a mobile home. Um, typically the lease is just going to say what the rent is, what the term is, that you have the use of the house, and that's it. If the landlord comes in who owns the property and starts taking down trees because the landlord wants to, that's not a violation of the lease. Just like this is not a violation of any lease agreement the landlord can do that provided the, the action of the landlord does not interfere with the quiet enjoyment of the home. And it's important to point out in this case, there was never an allegation by Mr. That any of the work done by the cooperative interfered with his quiet enjoyment of his home. He always had access to the home. The utilities to his home were never cut off. He had sew, uh, septic, he had water. Um, so there was never any allegation of that. The allegation was that he had a view out of his bedroom of bushes and trees that was removed, and then because that was removed, there was, uh, a a, uh, a dirt pile that was put in to put in a septic system. That's his allegation. And there's no law to support the court's finding that he had a right to such a view. Can you address the trespass aspect of the claim, either trespassing on the lot and or the water? Yeah. Um, trespass, yes, I can. Um, it, as far as the water goes, that really is a non-issue. Before the court, because there never was a finding that there wasn't any problem with water, the cooperative did put a berm up as noted by the court order, and there's then been no complaint since then. If there was a continuing water problem, it absolutely is a cooperative's responsibility to take care of it. The cooperative had a annual meeting, which Mr. Dominico was a member could attend, but he did not attend because he had an illness or an illness in the family. Uh, and at the Cooperative annual meeting, they talked about developing lot 27 right next to him. So that would've been notice. I did concede I believe in my brief, or at least before the trial court, that the cooperative could have handled this better. There could have been better communication letting him know that, you know, we're gonna be coming on your lot, we're gonna be doing this work. They didn't do that. And, and that is, um, a, a situation where the cooperative could have handled it better. So What's the basis for Attorney Schulman finding that, uh, your client had no right under the lease to deforest and regrade your Mr. Domenico's lot? There's no basis, there's absolutely no basis. The rules of the community say that the cooperative can, for infrastructure, infrastructure purposes, come onto somebody's lot and do work. There is absolutely no basis for Judge Schulman to say that. Why Couldn't they have staged? I mean, they can come on to do the work. Why can't they park the construction vehicles somewhere else? Well, um, the testimony or that part Of doing the Work, the testimony was that that particular area of the lot, and again, we don't acknowledge that that lot is, is owned by Mr. Domenico. It's not, it's owned by everybody, including him, the whole cooperative. But that particular area had been used as a staging area for other work within the community as well. And is there any allegation that the construction took an overly long period of time and disturbed Mr. Doo? No. And in fact, the allegation is that most of the construction occurred when he was away. Um, he was away tending to an ill father at the time. So there was no such allegation. Um, So does Mr. Dominico have any rights superior to other residents of the mobile home park to the cartilage around his mobile home? He does. Or is it just, uh, the absolute footprint of the mobile home? It's Not, it, it certainly, the, the rules of the community say that other members should not be on other people's lots, which is undefined without permission. And in fact, he has sort of responsibility for upkeep and, uh, is liable for damages or injuries that occur on his lot. He does. And that's according to the rules. But the issue that the trial court did is they expanded it. The trial court said, kept talking about the entirety of the lot. And nowhere do you find that phrase entirety of the lot and the rules. So you get all of the responsibilities, the liability, the upkeep, but then none of the advantages 'cause any, everybody else can just come into the property or the homeowner's association can come in and just start bulldozing The, everybody else can't just come into the property because the rules prohibit that without his permission. But the home, not the homeowner's association, the cooperative, cooperative through the board of directors should have provided notice for him before they came on to the property. They did not, but yes, they can come on the property. If there's a tree that needs to be taken down, they can come onto the property without permission. He doesn't own the property. Uh, he owns the house. They can Enter. So they, they can come in and pave everything around his, uh, mobile Home. Well, theoretically they could. I don't know that the town of dairy would give them a permit to do that. But the issue at hand though, judge is the people who are neighbors, the cooperative can't enter his house. His house is the real estate. The law defines the thing For me is the liability. If kids were playing on this construction equipment and got hurt, would we be looking at a fight between the cooperatives insurer and this gentleman's insurer? I don't think so. I think it would've been the cooperatives insurer and the contractor's insurer is The cooperative bound by good faith and fair dealing Yes. With its members, Yes. It's, So if the court trial court found a violation of that tenant, then wouldn't that be a basis for damage? It could, but the court did not. The court did not find any bad faith. Bad faith wasn't alleged in this case. There was no bad faith allegation in this case at all. And in fact, that goes to the attorney's fees claim. We made a claim for attorney's fees because the rules, the other documents that the court cited, the member occupancy agreement, the bylaws say that the cooperative gets reimbursed as attorney's Fees. That's not here on appeal though, is it? Yes, it is. Yes. That's the final issue that was brought by, um, the appellate. Um, and just briefly, so the court ruled nobody gets attorney's fees. Um, the cooperative doesn't get it. The court wasn't convinced that these bylaws and rules a, allow the cooperative to get attorney's fees in this case. And then the plaintiff, Mr. Domenico, brought a claim, um, claiming that he did not have to bring, should not have to bring this action for such an easy claim, um, and wanted attorney's fees later in his brief. He's now expanded that to an attorney's fees claim under the consumer protection statute by way of five 40 a, which was not pled. And the court clearly indicated that it was not pled. Um, so the point of the matter is, the issue at hand is what is a lease. And in this situation, there is no lease that grants Mr. Dominico any extra rights. Doesn't grant him a right to a view, doesn't grant him a right to a vegetative buffer. And yes, the cooperative can come in and take that view, whatever the view is away. It's interesting to note in the motion to reconsider the, uh, decision made by the court. The court kind of backed off. Its finding where in its finding in the original decision, the court said that he had a bucolic view and then the court backs off it to say that, um, that uh, at the same time, plaintiff is one of 57 lots in a densely populated manufactured housing park. It is not an arboretum, and it would be inequitable to force the cooperative association to plant fully grown hardwood trees and otherwise unreasonable expense in restoring the status quo ante. That gets to the whole other issue of remediation. So the court ordered the cooperative to remediate this lot to the tune of $10,000. The court has no authority to go order that you're ordering a property owner to remediate their own property. Your light's on. Thank you, judge. Thank You. Okay. Good morning. And may it please the court. My name is David Sta of Parnell Michaels McKay, and I'm here on behalf of Mark Domenico, and I'm happy to take questions at any time. What this, where, Where was, where were the trees? The trees were on the property. Were in between the property located at 26 Wayne Drive and the property located at 27 Wayne Drive. Between those two, Where was the property where the trees were? I'm, it was on Mr. We would claim that it was on Mr. Domenico's lot. Um, and that gets to the point that Attorney Shepherd has brought up this morning that this is a question of lease interpretation that the court has found that the trial court has found that the lease provided by the cooperative was such that it was the rules, the member occupancy agreement and the bylaws. And the key section of this, uh, lease is, uh, article one of the member occupancy agreement, which notes that the premises is 26 Wayne Drive, and it defines it as a lot, but Lot is then not further defined. Lot 30 is also located in Mr. Domenico's, uh, warranty deed for his, um, uh, manufactured housing unit, specifically references the home located at Lot 30. But it also references the deed indicates that the association or the cooperative rather owns the property around it, correct? Absolutely. There's no, uh, the Mr. Domenico is not contested that the cooperative owns that land. Once he vacates his lease. It's a question of tenancy. He owns it temporarily through the bounds of lot 30, that the boundaries of Lot 30 haven't changed in any subsequent deed or any GIS map that was provided at trial that on every map that was presented to the trial court, what is Lot 30 or 26 Wayne Drive is of the exact same boundaries. Um, and that those boundaries were marked and that those boundaries were taped again. Uh, Mr. Dominico testified at trial that they were taken down by the cooperative when the work was being done, that they were present when he bought the property. Those included stone walls as well as a, uh, a metal marker on one of the edges. Is There a property tax bill for lot 30 or lot 26? I believe that there is, and I believe that the cooperative pays that and then expounds it to each owner in one 58th percentage or one 57th percentage. Um, the, as we discussed, the lease itself is giving it to, uh, giving all rights to the, uh, uh, to, to the mobile home owner. To the extent that, you know, Mr. Doos required to mow the lawn, keep the lot tidy, uh, give any, uh, uh, property that's put on the, uh, property like a shed. Gazebo has to be affirmed with the cooperative first. He can't just put it up. He has to confirm that that's on your lot. So what Dickson is that lot? How would the cooperative otherwise determine what his lot is if he has to first go and say it's on my lot? Do you Dispute that the work, uh, that that was conducted was necessary to, to uh, develop the adjacent lot, The work that, that we dispute to the extent that it was done? There's no question that the cooperative has the absolute right to do necessary work to improve its lots. We're not contesting that. What we're contesting is, and what the trial court pointed out is the extent that the work was done, they dug, uh, an electrical trench and put in a new septic system. I believe that was the extent of the two. Uh, Was there any other access point to the adjacent lot? Of course there was. Yes, there's a dr there's a road that goes right along the other side of it. The, uh, 27 Wayne Drive is not landlocked surrounded by other properties. It's comes right off of the road itself. Um, So was there, I mean, in terms of the lay of the land, was there other convenient or possible access? Was it somehow cut off from the road or could they have access from The road? They, they, they could have access, your Honor, and there's no, the issue that was, uh, before the court was whether or not that work that was done, and it wasn't, uh, clarified at trial that the work that the cooperative had done was as necessary as it went. And in fact, the trial court pointed out why couldn't they have put in a retaining wall to instead of putting in, uh, you know, 12, 12 feet of dirt, or I believe it's six feet of dirt, a a massive amount and clear cut the entire back part of this land, which did wasn't just brush, it was, uh, full grown trees as well as bushes as well as any of the other, you know, seedlings or other property or other, uh, trees that are located there. And to come to the point that the cooperative encroached on that lot in bad faith, and that's what the trial court had found, is that there is a covenant, uh, quiet enjoyment and that the lease provides the covenant of good faith and fair dealing. Is that in the lease itself? No, it's not. But that it's naturally a part of what these two, uh, individuals were dealing two, uh, individual parties were dealing with and entering their lease. That Did Your, did your client raise the quiet ad enjoyment issue in those terms in his complaint? He raised it. The way the complaint started was as a, uh, request for, uh, it was a petition for declaratory and injunctive relief did not cite spec particularly to any statute. We did request a quiet enjoyment, which was clarified over time, but we didn't cite to the statute itself concede that. And there was a trespass claim, correct? Am I correct? Well, we co the way we constructed that claim in terms of trespass is that it's a trespass on his leasehold that you're providing him something. And we've con and is it they own the property in perpetuity? Yes. But he has to have, and according to his lease this lot, and when the cooperative does work, it comes on to trespass upon that property when it's not necessary work, or it goes beyond the extent that's in good faith. Well, how Can somebody trespass when you're, you're entering your own Property? The reason that it's trespass here is that was the basis from which that the court that we were trying to provide a court to provide damages beyond equitable relief because the court can, within its equitable relief, under, um, Malo through injunctive relief issue, any equitable relief it wants, Mr. Dominico certainly does not own that property if he were to end his lease, that it's owned by the cooperative. We agree 100%, but the work that they did is damaging to the nature of his leasehold. This court has always recognized that a tenant has a right to the possession of the land on a temporary basis, as well as, uh, the subject to use of the things on the property. And the things that were on the property were trees, brushes, uh, uh, bushes, um, brush that was located behind, uh, in between these two properties. And that provided him privacy. So his right to a, you call like a view is what trespass was trespassed upon that temporary right that was provided to him. Is a view actually something that can, or deprivation of a view be considered a violation of the quiet enjoyment? Does that fit, don't you have to have sort of an interference with a use versus just a view? Mm-Hmm. Under, uh, many cases in this court, Adams Echo Crowley, it requires that the tenant lost beneficial use of enjoyment of the property. And I'd point the court right. Through actual partial eviction, for example. Yes. And, and it, but it doesn't actually have to mean actual partial eviction. It can just mean a beneficial use or enjoyment and that wood versus And So what use was your client deprived of? Yes. Uh, that use was the back part of his lot, which was so altered to remove the privacy and other area that he put on record at the trial court that he enjoyed on. It was, as he described, his getaway, this was, he can no longer use that as his getaway. There's nothing there for him to enjoy privacy. So if I rented property from Justice Hicks up in his home town of Colebrook and I had this beautiful view of Canada and he decided to put up a fence because his neighbors were complaining, then I'd have a claim against him for loss of use or loss of enjoyment, abuse, quiet enjoyment In the case where the client has a perpetual lease, we would say that you do. Yes. Because if you, you're losing what you rented the property for. Mr. Dominico clearly stated that at trial that he walked to this property, he saw the nature of this lot, believed that upon looking upon his lease, that he was entitled to this lot of this type in quality that he would have it and he would state that, uh, that the cooperative does, has a right to do the necessary work. So for the example, I would provide that if those trees were found to be an invasive species, for example, that those species could be taken out by the cooperative if it's required by law or some other, uh, right property. And, uh, Mr. Dominica would have no claim for it, even if it provided him that Right. 'cause there's some other reasonable cause that's bringing the cooperative to do that action if it's done. So the loss of quiet enjoyment is depends on whether the activity is lawful or agreed to As within the bounds of the lease that they have. Yes. And the lease allows the cooperative to come on the property to repair, to make repairs and to develop adjacent lots, right? Absolutely. And but it, again, what's built into that and what the trial court found is that that's done in good faith. That that that the nature of our con that the contract between these two parties has to be done in good faith. Of course, it can take down trees if that, if the trees are dead dying or creating a bug infestation issues with other properties to say, we're going to clear cut this land to put in a septic system, but not tell the trial court why we're gonna do it that way and say that, well that was just reasonable 'cause we own the land isn't sufficient enough. It's depriving the tenant, the, the tenant, a right to which he believed that he had it's equivalent to, well, we're gonna brick up your window at an apartment just because we feel like it, because that's our property and we can do it Given the fact that, uh, the suit wasn't brought under five 40 a and the provision and the rules about no attorney's fees. Mm-Hmm. Why should your client be awarded attorney's fees and also given the deference that we accord to the trial court? Understood? Yes. There's two reasons for that, that a client enjoyment claim can only be brought under five 40 a two. And our position was that it didn't need to be explicitly cited to, while there is case law that says that that's the case, I would point the court to Gilman versus county of Cheshire, which is 1 26 New Hampshire, uh, 500 and uh, 45, where the party in that case never specifically cited to RSA 2 75 53 seeking wages, uh, uh, sick wages after he was deceased. Now, the only way he was ever gonna get those wages back was under that statute, but the plaintiff never cited to that statute, yet the court awarded attorney's fees anyway, and the, this court held that it made sense for the court to do that because there was no other relief way they could get that relief. But under that statute, and for the same reason we've pled for quiet enjoyment, there's no other statute that provides that relief. So in requesting attorney's fees, we were saying attorney's fees for breach of quiet enjoyment, we did not cite specifically to five, uh, five, uh, 40 a two because we didn't believe that we had to do so. Um, and going back to the bad faith section of it in Hakeem versus Adams, the court is specifically that we had plead that there was a, a attorney's fees that could be awarded under Hakeem versus Adams. And the, uh, trial court said that this was a good faith dispute and so therefore no attorney's fees under that basis. Um, So you're not arguing that that's wrong. We are arguing that that's wrong. Okay. Why is that wrong? And That's Yes, and we, uh, we are arguing that that's wrong because, um, that the court is saying at the trial that that, uh, in its, in its judgment that the lease is unambiguous. It specifically finds that this lease is unambiguous, that this lot was leased to him, that it is a clear right, and that the actions then were in. And I would agree that the trial court never said uses the word bad faith, but it says not in good faith and there's no medium faith. There's either good faith or bad faith, But the trial court says this case involved a good faith dispute concerning the scope of the leasehold. How can we find bad faith there? I would concede that there's a good faith dispute between the nature of the lease. So I would, I would concede that ground, your Honor. Now the cooperative is alleged that they were entitled to attorney's fees at trial, is that right? They did, Yes. And is that issue on appeal here? Do not believe it is. We are the only, uh, party that requested our attorney. I just wanna Clarify that to re Yes. Uh, going to the last part I see that I'm running out of time is about the, uh, discretionary decision by the trial court to reduce the amount of remediation down to $10,000 when the undisputed evidence at trial was that the remediation would cost somewhere between $38,000 and $29,000. Well, the trial court didn't have to accept that testimony even if it was undisputed. Right. It certainly didn't have to accept that testimony, your Honor, but it, it, it notes that that was the case, that that was the testimony provided by the, uh, uh, by the witness that was there at the hearing as well as the exhibits presented, that that was what remediation would cost, and then said that remediation is necessary. So in so doing the trial court needs to come up with an objective basis for which it's downward deviating from 10, from 30 to 10 in Establishing the scope of the lease. Are those questions of fact that we owe deference to the trial court's determination, or can we look at those documents ourselves? I believe that, uh, this court owes the trial court deference in that way. It is a fact that the court found that that makes up the nature of the lease. I don't believe that there is a legal argument presented other than to say that the court found no legal. But isn't an interpretation of a contract's a question of law, isn't it? Absolutely, absolutely is. But I think that in this instance, the fact that there are, if the court, the fact that there is three documents that make up one lease is a fact that the court found interpretation of that is cer those three documents is certainly a question for this court. It's a question of law. Um, how can We how, go ahead. How can we get behind the trial court's weighing here? He says, yeah, your client proved $30,000 to bring it to the status quo ante. But then he says, well, but that would be a huge burden and I'm, I will factor that in. And so I think 10,000 is the right balance here. How do we get behind that? I don't think you can. Um, there's, there's no way that, there's no objective basis that the court came up with 10,000. It's how, and the trial court's original judgment said that that'll be partial remediation. Well, no one has made an argument at trial for partial remediation. There was no evidence presented that that would, But the court has the power to balance the equities saying that this would be, uh, very harsh on the other, uh, cooperative residence. That's what the court said. It absolutely has the ability to balance those equities. I do not deny that, but it's the objective basis to do that. Yes, there is this issue with rent is $555 for each tenant. There's no, there's no disagreement on that. You see that my light's on, so I'll finish this point, um, that there's no disagreement on that. But the issue is that there has to be an objective basis for this court to downward deviate that much. It's taking out two thirds and basically rewarding the cooperative for their behavior, saying that, well, the cooperative behaved badly, but we're gonna reduce their fee, their, uh, their recovery provided to my client. Thank you, counsel. Thank you. Case.