Anthony Moda et al. v. Fernwood At Winnipesaukee Condominium Association et al.

This is an appeal of the trial court’s ruling on Defendants’ Joint Motion for Summary Judgment finding that the Declaration of Condominium for Fernwood at Winnipesaukee Condominium (“condominium instruments”) “expressly provided otherwise” a waiver from requirements of RSA 356-B:19, when a portion of the limited common area surrounding the unit was incorporated into a new and expanded condominium unit (hereinafter the “unit”). The unit in question is owned by Robin Gelinas and Phyllis Gelinas (“Gelinas”). Plaintiffs are two-unit owners in the condominium that opposed expansion of the Gelinas unit. Apx. 1 at 3. The Gelinas’ requested the expansion of their unit by requesting to be put on the agenda for the annual condominium association meeting scheduled for June 26, 2021. Apx. 1 at 4. The Gelinas’ presented their unit expansion plans to the unit members pursuant to Article 25- 100 of the condominium declaration. Plaintiff Anthony Alba who attended the annual meeting and held proxies for the Modas protested the procedural maneuver of the Gelinases under Article 25-100 of the declaration and advised the members at the annual meeting that the Gelinas proposal for expansion of their unit would have to obtain approval of all unit owners having undivided interest in the limited common area pursuant to RSA 356-B:19. Apx. 1 at 5. At the annual meeting (which included the Board members and other unit owners) and over the protest of Anthony Alba, the Gelinases were granted their request to expand their unit. After obtaining approval, the Gelinas hired a contractor and proceeded to raze and build their new unit. Apx. 1 at 5. Plaintiffs Moda and Alba filed a complaint against the Gelinases and the condominium association for not following the requirement of RSA 356-B:19, in Count I, Request for a Declaratory Ruling, Court II, Requests for Costs and Attorney’s Fees pursuant to RSA 356-B:15, and Count III, for Permanent Injunctive Relief. Defendant Fernwood Association filed a motion to dismiss which was denied. Defendants then filed their respective answers. Defendants thereafter filed a Joint Motion for Summary Judgment with Memorandum of Law. Apx. 4 at 80 and Apx. 5 at 83 respectively. Plaintiffs objected to Defendants’ Motion for Summary Judgment. Apx. 6 at 94.

Plaintiffs also filed a supporting Memorandum of Law in support of Motion for Summary Judgment. Apx. 7 at 96. Defendants contended in their request for summary judgment that RSA 356-B:19 did not apply because the project at issue did not include an assignment or reassignment of limited common area. Defendants further contended even if the statute did apply, Defendants were entitled to a judgment because the Plaintiffs were not adversely affected as defined by the statute; and therefore, their consent was not required. Finally, Defendants contended that even if the statute applied, Defendants motion should be granted because the condominium documents expressly set forth the voting requirements for a future unit expansion prior to the first assignment of limited common area, as well as a remedy for any encroachment into the Common Area resulting from such an expansion, thus exempting the project from any statutory requirement from all adversely affected owners consents. Apx. 4 at 80 & 82. Plaintiffs objected to each of the three assertions. Apx. 6 at 94. Defendants specifically addressed the three assertions of Defendants in Apx. 7 at 96-104. The court ruled as to Plaintiffs’ first assertion: “[D]efendants encroachment onto the surface of the limited common area constituted a reassignment of same into their unit, therefore, implicating the requirements of RSA 356-B:19. Add at 19. The court ruled as to Defendants’ second assertion: “That the defendants have the exclusive right to use the limited common area appurtenant to their unit does not eliminate the property rights of the remaining unit owners. Therefore, unless approved in accordance with the requirements of RSA 356- B:19 or an exception consistent with the statute, the defendants’ reassignment of the limited common area into their unit would adversely affect all unit owners of the association.” Add at 21.

The court ruled as to Defendants’ final assertion: “First, the declaration specifically provides a path for unit owners to make a structural alteration, improvement, or addition in or to the condominium unit or to any part of the condominium by receiving Board approval consistent with Article 6-102. Not only does this section not qualify that owners must limit their alteration to the boundaries of their units, but its use of the word “addition” also implies that a unit can expand beyond its original plans.” Add at 22.

The court further ruled: “When read in conjunction with Article 2-708, it is clear that the Declaration provides a pathway to grant easements for the intended horizontal expansion of units”. Add at 22.

Plaintiffs filed a Motion to Reconsider the court’s order. Apx. 8 at 105-109. The court summarily denied the motion.

After the trial court made rulings on additional post-judgment filings not part of this appeal and awarded attorney’s fees to Defendants, Plaintiffs filed a Notice of Appeal.

This case arises from Defendants’ wrongfully interpreting that the declaration of condominium “expressly provided” an exception to the requirements of RSA 356-B:19 when a unit owner wanted to expand the horizontal footprint of an original unit from that of the site and floor plans.

Unit and Interests All the litigants are unit owners in Fernwood at Winnipesaukee, A Condominium. There are eight units in the condominium. Apx. 2 at 20. Each of the units have equal, undivided interests in the common areas. Apx. 2 at 20. Furthermore, Limited Common Area means the patios, decks, porches and land immediately surrounding several of the units as shown as designated on the site plan and floor plans. Apx. 2 at 20. The extent of the assigned limited common area around unit 5 is depicted on the site plan. Apx. 2 at 71.

The Gelinases, as owners of Unit 5, decided to raze the original Unit 5 and expand its horizontal footprint amount by incorporating limited common area into the newly expanded unit without complying with the requirements of RSA 356-B:19.

Plaintiffs opposed the Gelinas expansion scheme and stated their opposition to same in a timely manner giving Gelinas fair notice, namely that RSA 356-B:19 had to be complied with.

The condensed version of Plaintiffs’ argument presented is: The court erred when it found that the declaration of condominium provided an “expressly provided” provision from the requirement of RSA 356-B:19 requiring the consent of unit owners adversely affected by assignment or reassignment of the limited common area with the expansion of the horizontal expansion of the Gelinas unit. The reason the court erred is twofold as a matter of law because the court failed to follow basic rules of statutory construction and interpretation of a contract. Furthermore, in the interpretation of the declaration, the court did not consider the entire document to determine the intent of the contracting parties but rather relied on isolated words to determine the declaration provided a waiver of the provisions of RSA 356-B:19 not requiring all unit owner consents that are adversely affected.

Likewise, the interpretation of a declaration of condominium is a question of law under a de novo standard of review. Barclay Square Condominium Owner’s Association v. Mark Grenier, 153 N.H. 514, 515 (2006), as a condominium’s legal documents are a contract that governs the rights between the association and the property owners. Schaefer v. Eastman Community Assoc., 150 N.H. 187, 190 (2003) II. The Court erred when it ruled that the condominium declaration for Fernwood at Winnipesaukee provided a waiver from the provisions of RSA 356-B:19 and did not find that consent of all unit owners adversely affected by the assignment or reassignment was required when limited common area was incorporated in the Gelinas unit.

At the outset the discussion below is complicated by the fact that minimal case law exists interpreting RSA 356-B:19. Thus, the issue raised on appeal is a matter of first impression. With that said, a basic review of applications to statutory law will be examined first.

In statutory interpretation this court is the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. We begin by considering its plain and ordinary meaning if possible”. John A. Cookson Co. v. N.H. Ball Bearings, 147 N.H. 352, 357, (2001).

Subscribing to the plain and ordinary standard -the dictionary definition for expressly is: “ In definite and distinct terms.” Merriman – Webster Dictionary, 11th Edition. As a further note, this court interprets statutory provisions in the context of the overall statutory sc heme. Favazza v. Braley, 160 N.H. 394, 351 (2010) This court in its limited consideration of RSA 356-B:19 has determined that the purpose of RSA 356-B:19 “is to provide protection for condominium owners relative to their interests in common and limited common areas”. Holt v. Keer, 167 N.H. 232, 237 (2015) As discussed further herein, the trial court makes a review of Articles 2-708 and 6-102 of the declaration to determine whether the two provide a waiver of RSA 356- B:19.

F irst and of note, there is no indication in Article 2-708 that it “expressly provides otherwise” waiving the provisions of RSA 356-B:19, of further note Article 2 and the information provided therein is defined by the caption which provides: Information Required by Section 356-B:16. Apx. 2 at page 19. Article 2, 2-708 is set out verbatim: “None of the rights and obligations of the owners created herein or in any deed conveying a condominium unit from the Declarant to a purchaser thereof, shall be altered in any way by encroachments, except to the extent that any unit or Common Area encroaches on any other unit or Common Area, whether by reason of any deviation from the Site Plan and the Floor Plans in the construction, repair, renovation, restoration, or replacement of any improvement, or by reason of the settling or shifting of any land or improvement, and valid easements for such encroachments shall exist; provided, however that in no event shall a valid easement for an encroachment be created in favor of an owner or owners if said encroachment occurred due to the willful and intentional misconduct of said owner or owners of their agents or employees.” Apx. 2 at 22 A clear reading of 2-708 is that it is intended to address unintended consequences, namely, “by reason of any deviation from site plan, or floor plan in the construction, repair, renovation, restoration or replacement of any improvement or by reason of the settling or shifting of any land or improvement”. In a nutshell, the article addresses mistakes by the owner or builder.

The court agreed with the above interpretation in the first instance addressing 2- 708 finding, “this section of the Declaration provides a valid easement for any deviation from the site plan and floor plans when renovating a unit. But this clause only applies when said encroachment is not the result of willful and intentional misconduct of the unit owner or their agents.” Add at 22.

However, thereafter it is submitted the reasoning of the court steps away from its earlier understanding of the application of 2-708 in that the court then goes on to state, “the Declaration specifically provides a path for unit owners to make structural alterations, improvements, or additions in or to its condominium unit or in or to any other part of the condominium by receiving Board approval consistent with Article 6-102. Not only does this not qualify this section, not qualifying that owners must limit their alterations to the boundaries of their units, but use of the word ‘addition’ also implies that a unit can expand beyond its original plans.” Add at 22. The court then bridges its logic finding when 2-708 is read in conjunction with 6-102, “it is clear that the Declaration provides a pathway to grant easements for intentional horizontal expansion of units.” Add at 22. The court then goes on to say speaking to its first analysis: “[a]lthough the article does limit this easement, the operative phrase is the ‘willful and intentional misconduct’ of the unit owner, thereby demonstrating that even a valid easement shall exist for even a willful or intentional act, so long as it does not qualify as misconduct.” Add at 22. The logic behind this court’s ruling unravels entirely at this point, or at the very least, does not adequately explain or point to an “expressly provided” exception to RSA 356-B:19 when there is no misconduct.

Second of note, Article 6-102 does not contain a provision which “expressly provides otherwise” waiving the provisions of RSA 356-B:19. Article 6-102 and the full Article 6 is stated below, Plaintiffs deem the exact language of its basic provisions are significant enough to be set out verbatim:

6-100 No owner shall upgrade a unit for use during the winter months by insulating, installation of a coal or wood stove, etc., without meeting all requirements of the City of Laconia BOCA Building Code, and Regulation NFPA-211 concerning the installation of wood and coal stoves.

6-101 No owner shall, without first satisfying the requirements regarding repair or other work set forth in Article 5 above, and, in addition, obtaining the written consent of the Board.

6-102 Make or permit to be made any structural alteration, improvement, or addition in or to his condominium unit or in or to any other part of The Condominium. 6-103 Tamper with any bearing wall or take any action or permit any action to be taken that will impair the structural soundness or integrity or safety of the building or any other structure in The Condominium.

6-104 Impair any easement or right or personal property which is a part of The Condominium.

6-105 Paint or decorate any portion of the exterior of the building or any other structure in The Condominium or any Common Area therein.

Apx. 2 at pg 28-29.

It is submitted 6-102 and all of Article 6 provides general application for work or building of a unit or other improvements and not otherwise. The intent of the article is stated in the caption of the article to “Prohibit Against Structural Changes by the Owner”. When interpreting a written agreement, we give the language used by the parties its reasonable meaning, considering the circumstances and the context in which the agreement was negotiated and reading the document as a whole. Ryan James Realty v. Villages at Chester Condo. Assoc., 153 N.H. 194, 197 (2006) A reasonable read ing of the article as a whole including its caption provides that a unit owner cannot proceed with any work on his or her unit without Board oversight and written approval before performing the work. It is submitted that even if the Gelinases had properly obtained all unit owner consents for their unit expansion under RSA 356- B:19, Article 6 requires that they come before the Board and obtain written approval to build their new unit. No understanding can be derived simply by inclusion of “addition” in 6-102 to determine it provides a carve out from the requirements of RSA 356-B:19.

For the foregoing reasons, Anthony Alba, Olga Alba, Anthony Moda and Rosemarie Moda request that this court reverse the trial court’s award including award of attorney’s fees on summary judgment to Fernwood at Winnipesaukee Condominium Association, Robin Gelinas and Phyllis Gelinas, and remand for entry of summary judgment in favor of the Modas’ and Albas’ and award them their attorney’s fees.

Appellants request 15 minutes for oral argument. Attorney William Philpot, Jr. will argue on Appellants’ behalf.

RULE 16(3)(i) CERTIFICATION I hereby certify that the decisions being appealed are in writing and that copies are appended to this brief.

I hereby certify that the within Brief contains no more than 9, 500 words.

I state that on this date I am sending a copy of this document as required by the rules of the Supreme Court. I am electronically sending this document through the court’s electronic filing system to Jonathan Boutin, Esquire and Andrew Sullivan, Esquire.