BRIEF OF 428 LAFAYETTE LLC JOHN OBERGE … · HE TRIAL COURT ERRED IN RULING ... (Issue was raised...
Transcript of BRIEF OF 428 LAFAYETTE LLC JOHN OBERGE … · HE TRIAL COURT ERRED IN RULING ... (Issue was raised...
STATE OF NEW HAMPSHIRE SUPREME COURT
DOCKET NO. 2015-0143
KELLY SANBORN, TRUSTEE OF THE 428 LAFAYETTE, LLC REALTY TRUST & A.
V. 428 LAFAYETTE, LLC & A.;
ANDREW COTRUPI V 428 LAFAYETTE, LLC & A.
BRIEF OF 428 LAFAYETTE, LLC & JOHN ROBERGE, APPELLANTS
RULE 7 MANDATORY APPEAL OF THE DECISION OF ROCKINGHAM COUNTY SUPERIOR COURT
Paul McEachern, Esq. (1679) Jacob J.B. Marvelley, Esq. (20654) Shaines & McEachern, PA, 282 Corporate Drive Portsmouth NH 03801 (603) 436-3110 Paul McEachern, Esq. to argue
TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................................................... ii
QUESTION PRESENTED FOR REVIEW .................................................................................................1
STATEMENT OF THE CASE AND THE FACTS .......................................................................................2
SUMMARY OF ARGUMENT.................................................................................................................6
STANDARD OF REVIEW .....................................................................................................................8
ARGUMENTS
I. THE TRIAL COURT ERRED IN RULING THAT GOVERNANCE OF THE CONDOMINIUM UNIT
OWNERS ASSOCIATION IS CONTROLLED BY R.S.A. § 292 RATHER THAN R.S.A. § 356-B. ....9
II. THE TRIAL COURT ERRED IN RULING THAT ONE COMMERCIAL UNIT HAS SIX EXCLUSIVE
PARKING SPACES IN ADDITION TO EIGHT SPACES IN COMMON WITH THE OTHER COMMERCIAL
UNIT. ...................................................................................................................................15
CONCLUSION ...................................................................................................................................18
REQUEST FOR ORAL ARGUMENT ....................................................................................................18
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TABLE OF AUTHORITIES
STATUTES R.S.A. § 356-B ...................................................................................................................... passim
R.S.A. § 356-B:2 .................................................................................................................9, 10, 11
R.S.A. § 356-B:3 ...........................................................................................................................15
R.S.A. § 356-B:15 .........................................................................................................................10
R.S.A. § 356-B:35 ...........................................................................................................................9
R.S.A. § 292 ...................................................................................................................4, 9 – 12, 14
R.S.A. § 479-A (repealed) ......................................................................................................10, 11
CASES McGovern v. Sec'y of State, 138 N.H. 128, 635 A.2d 498 (1993) ..................................................8
In re Certain Scholarship Funds, 133 N.H. 227, 232, 575 A.2d 1325, 1328 (1990) .....................8
Masse v. Commercial Union Ins. Co., 136 N.H. 628, 632, 620 A.2d 1041, 1044 (1993) ..............8
Hobson v. Hilltop Place Community Ass’n, 122 N.H. 1023 (1982) ..................................10, 11, 12
Appletree Mall Associates, LLC v. Ravenna Inv. Associates, 162 N.H. 344, 33 A.3d 1097 (2011)
..................................................................................................................................................16, 17
Motion Motors v. Berwick, 150 N.H. 771, 775, 846 A.2d 1156 (2004) .......................................16
Mansur v. Muskopf, 159 N.H. 216, 221, 977 A.2d 1041 (2009) ..................................................16
Thurston Enterprises, Inc. v. Baldi, 128 N.H. 760, 765, 519 A.2d 297 (1986) ............................16
Arcidi v. Town of Rye, 150 N.H. 694, 701, 846 A.2d 535 (2004) ..........................................16, 17
Flanagan v. Prudhomme, 138 N.H. 561, 566, 644 A.2d 51 (1994) .............................................17
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QUESTIONS PRESENTED
1. Whether it was error for the Court to rule that the governing structure of the
unit owners association was N.H. R.S.A. § 292 rather than N.H. R.S.A. § 356-B.
(Issue was raised in Def.’s Hearing Mem., A-116-121; Def.’s Resp. to Pls. Supp. Joint
Mem. of Law, A-168-69; Def.’s Mot. for Reconsid., A-190-91).
2. Whether the Court was in error in ruling that a “for rent” sign was not in
compliance with the Condominium Declaration as amended when the Declaration stated,
“However in no event shall any rule be adopted which limit the operation of commercial
units including, but not limited to, rules concerning signage and hours of operation;
provided that the operation of such units complies with applicable provisions of the
Hampton Zoning Ordinance.”
(Issue hereby waived as moot).
3. Whether the Court was in error in substituting its judgment that one
commercial unit not only had six exclusive parking spaces but an additional eight spaces in
common with the other commercial unit when the Declaration provided that each of the
two commercial units shared the fourteen available parking spaces with each other.
(Issue was raised in Def.’s Hearing Mem. on Comm. Unit Owner, A-116-118; Def.’s
Mot. for Reconsid., A-190-91).
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STATEMENT OF THE CASE AND OF THE FACTS
The Village Square of Hampton is a condominium building consisting of two commercial
units and twelve residential units. The Appellant, John Roberge (hereinafter “Roberge”),1 owns
seven units, which he purchased in 2010; Roberge’s mother, Sheila Roberge, owns two other
units. Final Order on Plf.’s Mot. for Contempt and Further Relief at 2 (noticed Dec. 19, 2014)
(hereinafter “December 2014 Order”).2 Sheila Roberge typically gives proxies to John Roberge,
who effectively has nine of the fourteen votes at meetings of the Village Square of Hampton
Condominium Association (hereinafter “VSHCA”). Id. The Plaintiff-Appellees own other units
in the condominium. Id. The VHSCA has been run as a condominium association. Id.
A. Governance of the Village Square of Hampton Condominium.
The condominium’s Declaration was recorded on August 11, 2006. Declaration for
Village Square of Hampton Condominium (A-127). The Declaration was amended once. First
Amend. To Declaration (A-158-162). The Village Square of Hampton Condominium By-Laws
(hereinafter “the VSHCA Bylaws”) were executed by the Declarant on July 10, 2006. VSHCA
Bylaws (A-147). The VSCHA Bylaws were:
adopted pursuant to the New Hampshire Revised Statutes Annotated Chapter 356-B, and these By-Laws shall apply to the Village Square of Hampton Condominium as described and created by the Declaration and to all present and future owners, tenants and occupants of any Unit in the condominium and to all other persons who shall at any time use the condominium or any portion thereof.
Id. ¶ 1 (A-147)
The VSHCA Bylaws “are intended to comply with the requirements of New Hampshire
Revised Statutes Annotated Chapter 356-B.” Bylaws, Art. I, § 2 (A-147). The VSHCA Bylaws
1 The Plaintiffs also named 428 Lafayette LLC as a defendant. Roberge’s units are owned by 428 Lafayette LLC. For simplicity, this Brief refers to the Defendants/Appellants as “Roberge.” 2 In this Brief, references to the record will be to the Appendix as “(A-__).”
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afford the VSHCA “all of the powers and responsibilities assigned by the New Hampshire
Condominium Act, RSA 356-B, as amended from time to time or any successor statute.”
Bylaws, Art. III, § 1 (A-150). The Bylaws provide that “The Association may be incorporated as
a New Hampshire voluntary corporation and these By-Laws shall serve as the By-Laws of said
corporation.” Bylaws, Art. II, § 1 (A-147). With respect to voting at Association meetings, the
VSHCA’s Bylaws mandate that “[e]ach Unit shall be entitled to one vote.” Bylaws, Art. II, § 2
(A-148). The Bylaws do not provide for a board of directors. The VSHCA Bylaws predate the
VSHCA’s incorporation, which occurred when Articles of Agreement were filed on February 27,
2007. Articles of Agreement (A-163).
The Plaintiffs brought claims related to Roberge’s behavior, management of the VHSCA,
and the placement of signs on or outside his units. Complaint and Request for Prelim Inj. Relief
and Perm. Inj. Relief (hereinafter “Original Petition for Relief”) (A-1-13); December 2014 Order
at 3-5. The case proceeded to an evidentiary hearing on November 1, 2013. See Notice of
Decision dated November 20, 2013 (A-51). The trial court (McHugh, J.) issued an Order,
requiring Roberge to remove his sign and otherwise denying the plaintiffs’ requested relief,
stating:
If the conditions do not improve then the plaintiffs have the right to petition for further relief from this Court and circumstances at that time might warrant a more severe Court response in terms of the management of the Condominium Association.
Order (noticed Nov. 20, 2013) at 5-6 (A-56-57).
In August 2014, the plaintiffs petitioned for further relief and for a finding of contempt
against Roberge, based on similar allegations as set forth in their original Petition. Plf’s Mot. for
Further Relief & Contempt (A-91-97); Plf.’s Case Status and Req. for Further Relief (A-98-104).
Roberge objected. Def.’s Obj. to Mot. for Further Relief and Contempt (A-105-106); Def.’s Obj.
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to Pl.’s Case Status and Request for Further Relief (A-107-112). The matter proceeded to a
hearing on September 25, 2014. The trial court (Anderson, J.) issued an order, ruling that the
VHSCA is governed by R.S.A. § 292, not the Condominium Act. December 2014 Order at 7-8.
Roberge timely moved to reconsider. Def.’s Mot. for Reconsid. (A-190-193). The Court denied
Roberge’s motion with respect to the issue of whether the VHSCA is governed by the
Condominium Act. Order on Def.’s Mot. for Reconsid. at 3.
B. Plaintiff Andrew Cotrupi, Esq.’s Use of Six Commercial Parking Spaces.
The condominium’s Declaration allocated fourteen parking spaces to be shared by the
condominium’s two commercial units. See Condominium Site Plan (A-119). The fourteen
spaces were designated as limited common area, and fit the Condominium Act’s definition of
limited common area. See R.S.A. § 356-B:3, XX (defining limited common area). That
allocation changed with Andrew Cotrupi’s (hereinafter “Cotrupi”) deed.
After the Declaration was recorded, Cotrupi negotiated for and received a Condominium
Unit Warranty Deed to Unit 102, a commercial unit, which deed was recorded on April 19, 2007.
Condominium Unit Warranty Deed (A-110-112). The deed stated in relevant part:
Said Unit is hereby conveyed together with the exclusive right to use those six (6) parking spaces designated as limited common area for said Unit as shown and noted on plan entitled, “As-Built Village Square of Hampton Condominium Site Plan Tax Map 160, Lot 17, 428 Lafayette Road, Hampton, NH for Village Square of Hampton, LLC,” to be recorded in the Rockingham County Registry of Deeds.
Id.
While Cotrupi’s deed references an amended site plan, no such plan has ever been
recorded and no evidence was submitted to the trial court that it ever existed. See Def.’s Hearing
Mem. on Comm. Unit Owner at 2 (A-117) (“No such referenced plan has ever been recorded, or
to Defendant’s knowledge, ever existed.”). The parties attended a hearing on November 1, 2013.
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By Order dated December 6, 2013, the trial court ordered that Cotrupi “is entitled to have the
amended site plan recorded and the 6 spaces designated as his alone.” Order on Plf.’s Mot. to
Reconsid./Clarify (McHugh, J.) (noticed Dec. 6, 2013) (A-89). Since no amended site plan
existed, Cotrupi took the original site plan, blackened out the reference to Unit 101—the
Appellant’s commercial unit—on six parking spaces, and recorded it. Def.’s Hearing Mem. on
Comm. Unit Owner at 2 (A-117).
By recording a marked-up, purported Amended Site Plan, Cotrupi claimed rights to the
six exclusive parking spaces and, for the first time, an undivided one-half interest in the
remaining eight parking spaces. See Purported Amended Site Plan (removing references to
Roberge’s Unit 101 on six spaces and leaving reference to both commercial units on remaining
commercial parking spaces) (A-121). This was the first time Cotrupi made such a claim.
Roberge objected. Def.’s Obj. to Pl.’s Case Status and Request for Further Relief (A-107-112).
The trial court agreed with Cotrupi, finding that the Appellant failed to prove why Roberge’s
commercial unit should have exclusive rights to the remaining eight parking spaces. Order on
Mot. for Reconsid. at 6.
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SUMMARY OF THE ARGUMENT
THE TRIAL COURT ERRED IN RULING THAT GOVERNANCE OF THE CONDOMINIUM UNIT OWNERS ASSOCIATION IS CONTROLLED BY R.S.A. § 292 RATHER THAN R.S.A. § 356-B.
VSHCA, like all New Hampshire condominium associations, is governed by the
Condominium Act, R.S.A. § 356-B. By its own terms, the Condominium Act applies to all
condominiums and their cast of persons and entities. A condominium association’s decision to
exercise its power to incorporate pursuant to the Condominium Act does not jettison the Act in
favor of corporate laws. To rule otherwise would create two classes of condominium in New
Hampshire: those governed by R.S.A. § 356-B and those governed by the State’s corporate
chapters. The Condominium Act does not contemplate a legal landscape where each
condominium’s statutory guidance hinges on whether the condominium incorporates. Even if
condominium associations could switch their governance statute—which they cannot—the
VSHCA’s Bylaws provide that they shall apply, even if the VSHCA should incorporate. Since
the VSHCA’s Bylaws expressly comply with and reference R.S.A. § 356-B, the VSHCA is
nevertheless governed by the Condominium Act’s provisions.
THE TRIAL COURT ERRED IN RULING THAT ONE COMMERCIAL UNIT HAS SIX EXCLUSIVE PARKING SPACES IN ADDITION TO EIGHT SPACES IN COMMON WITH THE OTHER COMMERCIAL UNIT.
Cotrupi, as owner of commercial Unit 102, may have exclusive parking access to six
parking spaces, but he has no other parking rights at the condominium. The Declaration
originally gave the two commercial units shared access to fourteen (14) parking spaces. When
Cotrupi purchased his Unit 102, he negotiated for a deed in which the Declarant gave Cotrupi
exclusive rights to six parking spaces. The deed references an amended site plan that was never
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recorded and may never have existed. The deed is unclear and/or ambiguous because it
references a nonexistent amended site plan. Extrinsic evidence, such as Cotrupi’s course of
conduct, demonstrates that Cotrupi has no viable claim to the remaining eight parking spaces.
For approximately six years, Cotrupi used his six parking spaces without asserting any claims to
additional parking. At a 2013 hearing, Cotrupi only asked for relief related to his six parking
spaces. In 2014, for the first time, he claimed shared rights to the remaining eight commercial
parking spaces. It was error for the trial court to give Cotrupi such additional rights when the
deed and course of conduct show that Cotrupi has no such rights.
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STANDARD OF REVIEW
The trial court proceedings involved a hearing that consisted of arguments of counsel
with the Appellant testifying. December 2014 Order at 2, n.1. The plaintiffs also submitted
affidavits. The Appellant now challenges rulings of law based on several exhibits before the
Court. This Court has described its general standard of review as follows:
We note the general rule that we will not disturb the trial court's findings of fact or rulings of law unless they are unsupported by the evidence or erroneous as a matter of law. In re Certain Scholarship Funds, 133 N.H. 227, 232, 575 A.2d 1325, 1328 (1990). Where, as here, the case was decided on a stipulated factual record, however, our standard of review is broadened. As all the documents are available for our perusal, the trial court was in no better position to decide the case than are we. Masse v. Commercial Union Ins. Co., 136 N.H. 628, 632, 620 A.2d 1041, 1044 (1993).
McGovern v. Sec'y of State, 138 N.H. 128, 129, 635 A.2d 498, 499 (1993).
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ARGUMENT
THE TRIAL COURT ERRED IN RULING THAT GOVERNANCE OF THE CONDOMINIUM UNIT OWNERS ASSOCIATION IS CONTROLLED BY R.S.A. § 292 RATHER THAN R.S.A. § 356-B. The trial court erred in ruling that the VSHCA is governed by R.S.A. § 292 to the
exclusion of R.S.A. § 356-B. To reach its ruling, the trial court had to make two subsidiary
findings, both of which are contrary to law. First, the trial court had to find that New Hampshire
condominium associations can shed R.S.A. § 356-B’s mandatory provisions and protections.
Second, the trial court had to find that condominium associations, by incorporating, shed their
existing governance documents, even when those documents specifically mandate that they shall
remain operative in the event of incorporation. The two ancillary findings jointly and severally
require reversal. This argument addresses each subsidiary finding in turn.
A. As a Matter of Law, the Condominium Act Applies to All Condominium Associations.
Condominium Associations cannot discard R.S.A. § 356-B’s provisions. The
Condominium Act “shall apply to all condominiums and to all condominium projects.” R.S.A. §
356-B:2, I. When a condominium’s declaration is recorded, the declarant must simultaneously
record “a set of bylaws providing for the self-government of the condominium by an association
of all the unit owners.” R.S.A. § 356-B:35, I. The bylaws dictate “whether or not the unit
owners’ association shall elect a board of directors.” R.S.A. § 356-B:35, II. The Condominium
Act specifically allows that “[t]he unit owners’ association may be incorporated.” Id. The Act
does not state that R.S.A. § 356-B may be supplanted by other corporation statutes.
Compliance with both the Condominium Act and the condominium instruments is
mandatory for the traditional cast of persons and entities involved in a condominium. R.S.A. §
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356-B:15, I (“The declarant, the board of directors, every unit owner, and all those entitled to
occupy a unit shall comply with all lawful provisions of this chapter and all provisions of the
condominium instruments.”).
Case law does not impair the Condominium Act’s mandatory application. The trial court
relied on the case of Hobson v. Hilltop Place Community Ass’n, 122 N.H. 1023 (1982) for the
proposition that associations can discard R.S.A. § 356-B’s provisions. See December 2014
Order at 7-8.3 However, the Hobson Court did not expressly or impliedly abrogate the
Condominium Act’s mandatory application to condominiums and their associations.
In the Hobson case, there were six individual condominium structures created in
accordance with the Condominium Act’s predecessor, R.S.A. § 479-A. Hobson, 122 N.H. at
1024. See also R.S.A. § 356-B:2, I (Condominium Act supersedes R.S.A. § 479-A). Each
condominium structure, or “cluster,” had its own declaration, bylaws and owner’s association.
Id. A separate, “distinct” non-profit corporation was established under R.S.A. § 292. Id. The
non-profit “owns and manages ‘community property’ consisting of roads which connect the
clusters, a recreational building, and lands interspersed between the clusters.” Id. The clusters
delegated some functions to the non-profit, such as maintaining common areas. Id. at 1025.
Thus, six condominium associations co-existed with a separate non-profit corporation that had
two purposes: 1) manage its own community property; and 2) by the delegation of the
condominium associations, manage the six condominiums’ common areas. Id. For its first
function, the non-profit assessed equally against each unit owner in each of the six clusters. Id.
at 1025. For its second function, the non-profit assessed each cluster equally. Id. at 1024. Each
cluster, in accordance with the Condominium Act’s predecessor, raised the funds to pay the
3 The December 2014 Order, and the trial Court’s Order on Roberge’s Motion for Reconsideration are appended to this Brief and do not appear in the Appendix.
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nonprofit by requiring unit owners to contribute sums proportionate to their ownership interests.
Id. at 1025.
The Hobson parties’ dispute arose over how the nonprofit assessed certain equipment and
working surplus capital expenses. Hobson, 122 N.H. at 1025-26. The Supreme Court applied
the Condominium Act’s predecessor statute to the clusters, but R.S.A. § 292 to the non-profit.
Hobson, 122 N.H. at 1026. The Court observed that the plaintiff unit owners were all members
of the same cluster that, in its declaration and by-laws, had delegated duties to the nonprofit. Id.
at 1027. The Court found that the nonprofit’s “role in maintaining the ‘common area’ was
thereby akin to that of an independent contractor[. . . .]” Hobson, 122 N.H. at 1027
This matter is wholly distinguishable from the Hobson case. The Condominium Act now
applies to condominiums, not R.S.A. § 479-A, and the Act’s application is mandatory. R.S.A. §
356-B:2, I. Unlike the clusters in Hobson, the VSHCA did not delegate responsibilities to a non-
profit. Rather, the VSHCA incorporated itself and its bylaws specifically state that the bylaws
are established in accordance with the Condominium Act and, if the association incorporates, the
bylaws shall still serve as the bylaws of the corporation. Articles of Agreement (A-163);
VSHCA Bylaws, Art. I, § 2 (A-147) (“These By-Laws are intended to comply with the
requirements of New Hampshire Revised Statutes Annotated Chapter 356-B.”); Id., Art. II § 1
(A-148) (“The Association may be incorporated as a New Hampshire voluntary corporation and
these By-Laws shall serve as the By-Laws of said corporation.”). Unlike the Hobson case, there
is no independent contractor. Rather, the VSHCA, which must be governed by the
Condominium Act, incorporated itself. The trial court erred in relying on Hobson to vary from
the Condominium Act’s mandatory provisions.
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To rule that incorporated condominium associations have, de jure, jettisoned the
Condominium Act would result in the fundamental destabilization of countless condominiums.
It is axiomatic that the Condominium Act applies to all New Hampshire condominiums.
Moreover, it is a common practice for condominiums to exercise their right to incorporate under
the Condominium Act. The trial court’s ruling, if upheld, would upend those generally
understood precepts and instead create two classes of New Hampshire condominium: those
whose associations have not incorporated and are governed by the Condominium Act, and those
whose associations have incorporated and are now governed by a wholly distinct statutory
scheme. That schism would merely depend on whether a given association exercised its right to
incorporate under the Condominium Act. Such a ruling would cause, among other effects, a
dangerous sea-change in voting power and governance across countless incorporated
condominium associations. The Hobson Court did not intend a breakup of condominium law,
and the current Condominium Act does not allow it.
Since the Condominium Act’s language is mandatory, the trial court erred in ruling that a
condominium association that incorporated has discarded the Act. To rule otherwise would
invalidate the Act’s mandatory application and create disarray across countless, unwitting
condominium associations. This Court should reverse the trial court’s ruling.
B. The VSHCA’s Declaration and Bylaws Import the Condominium Act.
Even if the VSHCA could be governed by R.S.A. § 292, the VSHCA’s By-Laws prevent
it. The trial court, after ruling that the VSHCA was a nonprofit organization not governed by the
Condominium Act, ordered a meeting of the VSHCA to elect a board of directors. December
2014 Order at 9. The trial court did not reference—and gave no credence to—the VSHCA’s
bylaws, which amounted to legal error. See generally id.
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The VSHCA Bylaws, formally styled as the “Village Square of Hampton Condominium
By-Laws,” were executed by the Declarant on July 10, 2006. The VSHCA Bylaws predate the
VSHCA’s incorporation, which occurred when Articles of Agreement were filed on February 27,
2007. Articles of Agreement (A-163). The VSCHA Bylaws were:
adopted pursuant to the New Hampshire Revised Statutes Annotated Chapter 356-B, and these By-Laws shall apply to the Village Square of Hampton Condominium as described and created by the Declaration and to all present and future owners, tenants and occupants of any Unit in the condominium and to all other persons who shall at any time use the condominium or any portion thereof.
VSHCA Bylaws, ¶ 1 (A-147).
The VSHCA Bylaws “are intended to comply with the requirements of New Hampshire
Revised Statutes Annotated Chapter 356-B.” VSHCA Bylaws, Art. I, § 2 (A-147). The VSHCA
Bylaws afford the VSHCA “all of the powers and responsibilities assigned by the New
Hampshire Condominium Act, RSA 356-B, as amended from time to time or any successor
statute.” Id., Art. III, § 1 (A-150). The Bylaws provide that “The Association may be
incorporated as a New Hampshire voluntary corporation and these By-Laws shall serve as the
By-Laws of said corporation.” Id., Art. II, § 1 (A-148). The VSHCA’s Bylaws mandate that
“[e]ach Unit shall be entitled to one vote.” Id., Art. II, § 2 (A-148).
The VSHCA’s Bylaws establish four grounds for reversal. First, the Bylaws demonstrate
that the VSCHA always intended to function operate under the Condominium Act, which the
trial court ignored. Compare December 2014 Order at 7-8 (“The Court concludes that the
Village Inn at Hampton is governed as a nonprofit corporation, rather than a condominium, for
the relatively straightforward reason that it chose to be so.”) with VSHCA Bylaws, ¶ 1 (A-147)
(Bylaws intended to comply with Condominium Act) and id., Art. II, § 1 (A-148) (VSHCA’s
Bylaws shall govern even in event of incorporation). Second, the VSCHA Bylaws, by their own
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terms, serve as the bylaws of a corporation, should the VSCHA incorporate, which means the
corporation is governed by bylaws promulgated in accordance with R.S.A. § 356-B, not R.S.A. §
292. Compare, December 2014 Order (failing to apply VSCHA’s Bylaws to incorporated
association) with VSCHA Bylaws, Art. II, § 1 (A-148) (VSCHA’s Bylaws shall govern in the
event of incorporation). Third, even if the corporation only imported the VSCHA’s Bylaws’
voting provisions, each unit has one vote at the corporation’s meetings. Compare December
2014 Order at 9 (“Each member shall have one vote—not one vote per unit) with VSCHA
Bylaws, Art II, § 2 (A-148) (“[e]ach Unit shall be entitled to one vote.”). Fourth, the Bylaws do
not provide for a Board of Directors, yet the Court has imposed one. Compare VSCHA Bylaws
(omitting reference to Board of Directors)4 with December 2014 Order at 7 (“nonprofit
corporation will generally be governed by a board of directors.”) and id. at 9 (ordering VSCHA
to elect five directors). Each of the four grounds requires reversal because each compels a ruling
that the VSCHA is governed, at least in relevant part, by the Condominium Act.
4 Pursuant to R.S.A. § 356-B:35, II, each condominium association decides in its bylaws whether to have a board of directors. Therefore, the VSCHA acted within its powers in deciding not to have a board of directors.
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THE TRIAL COURT ERRED IN RULING THAT ONE COMMERCIAL UNIT HAS SIX EXCLUSIVE PARKING SPACES IN ADDITION TO EIGHT SPACES IN COMMON WITH THE OTHER COMMERCIAL UNIT.
The trial court erred in ruling that one of two commercial condominium units now has the
exclusive right to six parking spaces in addition to sharing eight spaces with the appellant’s
commercial unit. The condominium’s Declaration allocated fourteen parking spaces to be shared
by the condominium’s two commercial units. See Condominium Site Plan (A-119). The
fourteen spaces were designated as limited common area, and fit the Condominium Act’s
definition of limited common area. R.S.A. § 356-B:3, XX. That allocation changed with
Cotrupi’s deed.
After the Declaration was recorded, Cotrupi negotiated for and received a Condominium
Unit Warranty Deed to Unit 102, a commercial unit, which deed was recorded on April 19, 2007.
Condominium Unit Warranty Deed (A-110-113). The deed stated in relevant part:
Said Unit is hereby conveyed together with the exclusive right to use those six (6) parking spaces designated as limited common area for said Unit as shown and noted on plan entitled, “As-Built Village Square of Hampton Condominium Site Plan Tax Map 160, Lot 17, 428 Lafayette Road, Hampton, NH for Village Square of Hampton, LLC,” to be recorded in the Rockingham County Registry of Deeds.
Id.
While Cotrupi’s deed references an amended site plan, no such plan has ever been
recorded and no evidence was submitted to the trial court that it ever existed. See Def.’s Hearing
Mem. on Comm. Unit Owner at 2 (A-117) (“No such referenced plan has ever been recorded, or
to Defendant’s knowledge, ever existed.”). The parties attended a hearing on November 1, 2013.
By Order dated December 6, 2013, the trial court ordered that Cotrupi “is entitled to have the
amended site plan recorded and the 6 spaces designated as his alone.” Order on Plf.’s Mot. to
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Reconsid./Clarify (McHugh, J.) (noticed Dec. 6, 2013) (A-89). Since no amended site plan
existed, Cotrupi took the original site plan, blackened out the reference to Unit 101—the
Appellant’s commercial unit—on six parking spaces, and recorded it. Def.’s Hearing Mem. on
Comm. Unit Owner at 2 (A-117).
By recording a marked-up, purported Amended Site Plan, Cotrupi, claimed rights to the
six exclusive parking spaces and, for the first time, an undivided one-half interest in the
remaining eight parking spaces. See Purported Amended Site Plan (removing references to
Roberge’s Unit 101 on six spaces and leaving reference to both commercial units on eight
remaining commercial parking spaces) (A-121). This was the first time Cotrupi made such a
claim. Roberge objected. Def.’s Obj. to Pl.’s Case Status and Request for Further Relief (A-
107-112). The trial court agreed with Cotrupi, finding that the Appellant failed to prove why the
Appellant’s commercial unit should have exclusive rights to the remaining eight parking spaces.
Order on Mot. for Reconsid. at 6.
The trial court reversed the burden. Cotrupi obtained a deed that varied from the original
site plan, obtaining the right to six parking spaces. His deed was recorded April 19, 2007. In the
first round of litigation in this matter, Cotrupi asserted a right to six parking spaces, which was
granted. In this second round of litigation, he asserts a right to the remaining eight parking
spaces, which is in error.
The question requires interpretation of Cotrupi’s deed. This Court has defined its
standard of review in interpreting a deed as follows:
The proper interpretation of a deed is a question of law for this court. Motion Motors v. Berwick, 150 N.H. 771, 775, 846 A.2d 1156 (2004). As a question of law, we review the trial court's interpretation of a deed de novo. Mansur v. Muskopf, 159 N.H. 216, 221, 977 A.2d 1041 (2009). In interpreting a deed, we give it the meaning intended by the parties at the time they wrote it, taking into account the surrounding circumstances at that time. Thurston Enterprises, Inc. v.
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Baldi, 128 N.H. 760, 765, 519 A.2d 297 (1986). We base our judgment on this question of law upon the trial court's findings of fact. Arcidi v. Town of Rye, 150 N.H. 694, 701, 846 A.2d 535 (2004). If the language of the deed is clear and unambiguous, we will interpret the intended meaning from the deed itself without resort to extrinsic evidence. See Flanagan v. Prudhomme, 138 N.H. 561, 566, 644 A.2d 51 (1994).
Appletree Mall Associates, LLC v. Ravenna Inv. Associates, 162 N.H. 344, 347, 33 A.3d 1097, 1099 (2011).
In this case, Cotrupi’s deed references an amended site plan that was not produced to the
trial court and may never have existed. Absent that site plan, it is impossible to determine
whether the Declarant intended for Cotrupi’s deed to convey the exclusive use of six parking
spaces, in addition to the eight remaining commercial spaces. Without an amended site plan, it is
impossible to determine the deed’s intent from its four corners.
Since the deed is unclear and ambiguous, it is appropriate for the Court to consider
extrinsic evidence. Cotrupi’s course of conduct following the conveyance is instructive. On
April 19, 2007, Cotrupi recorded the deed and used the six parking spaces as his own. See supra
at 15-16 (discussing Cotrupi’s course of conduct). Cotrupi did not lodge a claim to any other
parking rights beyond his six commercial spaces until the 2014 litigation, in which his purported
Amended Site Plan allocated a shared right to the remaining eight commercial parking spaces.
See id. While the issue of parking was raised before the trial court in 2013, Cotrupi’s first
mention of some continuing right to the remaining eight commercial spaces was not raised until
the 2014 litigation. See supra at 16 (discussing Cotrupit raising issue for first time). Cotrupi’s
course of conduct for more than seven years supports a finding that Cotrupi’s deed intended to
convey exclusive use to six parking spaces without any shared use of the remaining eight parking
spaces. The trial court erred in ruling that Cotrupi’s unit had six exclusive parking spaces in
addition to eight additional spaces in common with the other commercial unit.
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