Commerce Park Condominium Association

Commerce Park mischaracterizes Little Deer Valley’s (“LDV”) position and misstates the factual and legal circumstances presented. The trial court’s order does not align with New Hampshire’s Condominium Act, RSA 356-B, and is converse to this Court’s prior interpretation of the Act. Condominiums at Lilac Lane Unit Owners’ Ass’n v. Monument Garden, LLC. 170 N.H. 124 (2017).

RSA 356-B:23, I is clear. Conversion occurs “at the time of the recordation of the appropriate instruments.” RSA 356-B:23, I. Commerce Park, like the trial court, asserts that substantial construction is required for conversion to occur, but substantial construction is not a conversion requirement. LDV complied with the conversion requirements outlined in RSA 356-B and successfully converted Building C in April of 2010 through recordation at the Registry of Deeds.

Commerce Park argues that substantial construction is required because RSA 356-B:20, I requires substantial construction before a site plan can be certified by a registered land surveyor. This argument is directly converse to this Court’s interpretation of RSA 356-B:20, I in Lilac Lane. 170 N.H. 124, 133 (2017). This Court held that RSA 356-B:20, I’s substantial completion requirement, “only applies to units marked as substantially completed on the plan.” Id. The land surveyor must certify that units marked substantially completed are in fact substantially completed, but units not marked substantially completed do not need to be substantially completed for the plan to be certified. Id. This Court was clear that RSA 356-B:20, I does not impose a substantial completion requirement on all units referenced on a site plan and that to find otherwise would be converse to the language and overall purpose of the Act. Id.

This Court explained that the plain language of RSA 356-B permits future development so long as proper notice is provided to potential owners. Id. at 132-134. For example, the Lilac Lane trial court referenced RSA 356-B:7 which proscribes the creation of a condominium before units are constructed and specifically permits the creation of units “to be located on any portion of the submitted land” in the future. Id. at 133-134. The Act does not prohibit future development, it simply requires notice. Id. In discussing RSA 356-B:7 and RSA 356-B:20, this Court referenced the Lilac Lane trial court’s finding that, “the plain language of these provisions indicates that they are designed to protect the interests of potential condominium unit owners-particularly, by ensuring that they are apprised of the details of the planned development.” Id. So long as potential unit owners are informed, through recordings in the Registry of Deeds, RSA 356-B permits planned future development. Id.

Here, potential owners of Commerce Park and owners alike had significant notice of LDV’s intentions to build Building C. LDV always intended to add Building C to Commerce Park and included Building C on its plans from the beginning. Apx. I at 64-65. In April of 2010, Commerce Park officially added Building C to Commerce Park. Apx. at 66-70. LDV has never changed its plans for Building C and all interested parties had substantial notice. The Act does not impose a deadline to construct, rather it imposes a deadline to notify. See Lilac Lane, 170 N.H. 124, 133 (2017) (potential owners must be timely apprised of the details of planned future development).

Commerce Park argues that LDV’s reliance on this Court’s holding in Lilac Lane is misplaced because Lilac Lane was not a convertible land case, but Commerce Park misunderstands LDV’s reliance. LDV does not argue that Lilac Lane is a convertible land case, rather LDV relies on Lilac Lane because in its discussion, this Court interpreted and explained the same statute at issue here. Id. at 133-134. The Court looked to the plain language of the statute and determined that substantial construction is not required for a site plan to be certified and for units to be created. Id. Whether Lilac Lane was a convertible land case is irrelevant. Commerce Park further argues that Section 14-1 of LDV’s own declaration required construction of Building C within five years because its declaration stated that it “reserves the right in its sole discretion and option, for a period of five years from the date of recording of this Declaration in the said Registry of Deeds to create and build an additional building, designated as Building C, which will contain no more than 13 condominium units, on the convertible land delineated and set forth in the Site Plan.” Commerce Park misreads Section 14-1. LDV reserved the right and option to convert its convertible land for up to five years. It did not commit to a construction deadline.

II. Commerce Park incorrectly argues that LDV failed to comply with two of the conversion requirements outlined in New Hampshire’s Condominium Act.

Commerce Park argues that LDV failed to properly convert Building C because it failed to file a new site plan and did not file floor plans. LDV is perplexed by this argument because Commerce Park alleges that LDV did not file a new site plan, despite a new site plan being recorded on April 30, 2010, and that “it is undisputed that no such updated plans were recorded for the non-existing third building, ” despite the fact that the April 30, 2010 plan clearly shows Building C and its units. Apx. I at 66-70. From a quick review of LDV’s 2010 filings in the Registry of Deeds, it is clear that LDV filed a new site plan on April 30, 2010, changing the designation of Building C and making additional updates to the original 2005 filing. Apx. I at 66-70. The floor plans that Commerce Park alleges are missing were not required. The Act only requires floor plans for structures located on the land being converted. RSA 356-B:23. No structures existed on the land being converted when Building C was added to Commerce Park. LDV complied with the conversion requirements and converted Building C on April 30, 2010, before the statutory five-year deadline. LDV is entitled to complete Commerce Park by constructing Building C. To find otherwise would be converse to the purpose of the Condominium Act.

I certify that the foregoing reply brief complies with the word limitation of 3, 000 words and that it contains 1, 020 words.

I hereby certify that a copy of the foregoing Reply Brief of the Appellant has been forwarded, this day, to all parties of record via the Supreme Court’s electronic filing File and Serve system.

_ /s/ James F. Laboe____________