Opinion
FSTCV136020704S
01-05-2018
HSBC BANK USA, NATIONAL ASSOCIATION as Trustee et al. v. Heather BLISS et al.
UNPUBLISHED OPINION
OPINION
Hon. Kevin Tierney, Judge Trial Referee
The key factual issue before the court on the above Motion for Sanctions is whether or not the receiver’s possession and control of the building and improvements at 91 Saugatuck Avenue, Westport, Connecticut includes the adjacent shared common driveway between 91 Saugatuck Avenue and 95 Saugatuck Avenue and serving both 91 and 95? The receiver, Landcore Management, LLC, was appointed by this court on March 7, 2017 (# 161.02). On August 16, 2017 that March 7, 2017 order was slightly modified as to the filing of the receiver’s reports (# 198.02). That August 16, 2017 modification is not before the court.
The last paragraph of page 3 in the March 7, 2017 order states: " ORDERED, that the Mortgagor, its officers, agents, servants, other employees, and attorneys, and each and every one of them, be and hereby are enjoined and restrained from collecting the profits of the Property above described or any part thereof and from interfering in any matter with the Property or the possession of said Receiver ..." The legal description of the property at 91 Saugatuck Avenue, Westport, Connecticut is contained on pages 1 and 2 of the March 7, 2017 receivership order. (# 161.02)
On August 11, 2017, the mortgagor and defendant in this foreclosure action, Heather Bliss, filed a two-count lawsuit against Landcore Management, LLC, the receiver appointed pursuant to the March 7, 2017 order. That lawsuit is currently pending in the Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number FST CV 17-6033110 S and is entitled Heather Bliss v. Landcore Management, LLC. There are no other parties in that lawsuit other than the two above-named parties. The operative Landcore complaint is dated July 27, 2017 and is in two counts. That complaint alleges that Heather Bliss is the owner of real property located at 95 Saugatuck Avenue, Westport, Connecticut and that the defendant, Landcore Management, LLC, is the duly appointed receiver for the property immediately next door at 91 Saugatuck Avenue, Westport, Connecticut. Paragraph 3 alleges that 91 Saugatuck Avenue " is adjacent to, and shares a common driveway to 95 Saugatuck Avenue, Westport, Connecticut." Paragraph 4 alleges: " Regarding the foregoing common driveway separating the apartment houses on 91 and 95 Saugatuck Avenue, the common driveway is approximately 20 feet wide, with approximately 13 feet belonging to 95 Saugatuck Avenue." There are two paragraphs labeled " 4." This language is from the first of the two paragraphs 4. Paragraph 5 of Count One claims trespass, and alleges that Landcore Management, LLC, " has and continues to trespass over and across the foregoing driveway of the plaintiff, and has given certain third parties permission to use the driveway of the plaintiff, such as service trucks, all without the plaintiff’s permission." In Count One, the plaintiff is seeking: " An injunction restraining the defendant from continuing to trespass, and giving permission to third parties to trespass, over and onto plaintiff’s real property located at 95 Saugatuck Avenue, Westport, Connecticut." Count Two incorporates by reference the essential allegations of Count One and alleges in addition: " The defendant is liable to the plaintiff for money damages for trespass as stated in Count One." " Money damages for trespass" is the Claim for Relief in Count Two. No counsel has appeared for the defendant, Landcore Management, LLC, in that trespass litigation.
This current foreclosure action is returnable to the Superior Court on December 24, 2013 and is awaiting a January 8, 2018 Appellate Court argument after a bankruptcy dismissal on February 10, 2017 (# 170.00) and a dismissal of a later bankruptcy petition on April 27, 2017 (# 186.00). A judgment of foreclosure by sale entered on March 28, 2016 ordering a sale date of July 9, 2016 (# 113.01) and on August 10, 2016 with an October 22, 2016 sale date (# 157.00). On August 18, 2016 Heather Bliss appealed the court’s August 10, 2016 judgment of foreclosure by sale (# 159.00). The appeal is still pending in the Appellate Court as docket number A.C. 39537.
As a result of the institution of the Landcore Management, LLC lawsuit, the plaintiff filed the instant Motion for Sanctions claiming that the Landcore lawsuit is inappropriate and violates the above-mentioned receiver order of this court. The plaintiff further claims that the defendant, Heather Bliss, did not seek the permission of this court prior to bringing the Landcore Management, LLC lawsuit. The plaintiff, HSBC Bank, acting by its attorney of record sent an email to the attorney of record for Heather Bliss in this foreclosure action on July 12, 2017 admonishing Heather Bliss that such a lawsuit against the receiver can only be brought with the permission of the court citing Hartford Federal Savings & Loan Association v. Tucker, 196 Conn. 172, 178 (1985) (" ... that suit may be brought against a court-appointed Receiver only with the permission of the Court which appointed the Receiver.") (" 205.00, Exhibit B"). Despite that admonishment, the lawsuit was commenced against Landcore Management, Inc. and is being prosecuted by Heather Bliss.
The defendant, Heather Bliss, argues that the Tucker case is not binding authority because in Tucker the receiver was sued over his management of the property for which he was appointed receiver, whereas in the Landcore Management lawsuit, the receiver is being sued for its interference with property at 95 Saugatuck. Avenue, Westport, Connecticut, property for which it was not appointed receiver.
This Motion for Sanctions requires this court to determine whether or not there is any interference by the receiver with the shared common driveway portion that is owned by Heather Bliss, the legal owner of the real property at 95 Saugatuck Avenue, Westport, Connecticut
The court held an evidentiary hearing on the Motion for Sanctions on November 17, 2017. This court took judicial notice of ten documents. Most of these documents were located in three litigation files: the Landcore Management, LLC lawsuit, FST CV 17-6033110 S, a previous foreclosure filed against Heather Bliss for the first mortgage on 95 Saugatuck Avenue, which foreclosure action has been withdrawn, and is entitled Deutsche Bank National Trust v. Heather Bliss, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number FST CV 09-5011336 S, and this current foreclosure action, FST CV 13-6020704 S. In addition, with the consent of the parties, the court took judicial notice of a photograph of the property contained in Google Street View that delineates the shared common driveway that accesses both the rear of 91 Saugatuck Avenue and the rear of 95 Saugatuck Avenue, a driveway located between those two buildings, on these two parcels. Included within the judicially noticed documents was the legal description of both parcels. Copies of the ten documents were placed in evidence as full exhibits at the November 17, 2017 hearing. No testimony was offered by either party. No further documents were entered in evidence. No post-hearing briefs were ordered or filed.
The court finds that the legal descriptions attached to the mortgage deeds for both 91 and 95 Saugatuck Avenue appear to be complete using either a survey or metes and bounds description. Each contained " together with" and " subject to" provisions. The court finds, based upon the examination of those legal descriptions, that there is no recorded driveway easement. The parties declined to offer any other documents, surveys, plot plans, title search, deeds, photographs, video, or testimonial evidence. The court has no reason to deny that the shared common driveway is approximately 20 feet wide and the majority of that shared common driveway is titled to 95 Saugatuck Avenue. Neither party furnished an updated title search. The title search that this court found in the closed foreclosure file for 95 Saugatuck Avenue only related to verification of the liens, mortgages and attachments on the real property. It appears that the title searcher was not required to delve into easements including a driveway easement.
Both mortgage foreclosures files disclose that a purchase money mortgage had been obtained from Lynda Valiente. The court finds that Heather Bliss bought both properties, 91 and 95 Saugatuck Avenue, from Lynda Valiente on June 1, 2006. Heather Bliss obtained separate deeds for each of the two properties. Heather Bliss obtained separate mortgages for each of the two properties. The owner of the property prior to Lynda Valiente probably owned both 91 and 95 together. Prior to the Valiente ownership, title to both parcels may have been in the Damico family name and previously in the Padula family name. Since no title search or copies of the deeds show the chain of title, the above title history is speculative, except for the fact that from 2006 to date, title to 91 and 95 were in common ownership and had been in the Valiente family common ownership for a number of years prior to 2006.
91 Saugatuck Avenue is a multi-family house that appears in the Google Street View photograph to have three mail boxes on its front. The court has insufficient information to know whether 91 is a two-family or three-family house but it is clearly a multi-family residence. Equally so, 95 Saugatuck Avenue appears to have two or three mail boxes at the front door. The court has inadequate information to know whether 95 is a two- or three-family house but it is clear to the court that it too is a multi-family house. There appears to be only one building on 91 located adjacent to the sidewalk on Saugatuck Avenue. There appears to be only one building on 95 located adjacent to the Saugatuck Avenue sidewalk.
The photograph from Google Street View shows that the entire real property between the two buildings is paved. There is no shrubbery, grass or any other portion of the land between the two buildings that is not asphalted and covered by the driveway. According to the photograph, the driveway extends to the rear of both properties starting from Saugatuck Avenue. The entire length of the driveway proceeds to the rear of 91 Saugatuck Avenue parcel as well as to the rear of 95 Saugatuck Avenue parcel. The entire rear of the two parcels appears to be paved in a fashion similar to the driveway asphalt. Large garbage receptacles are located to the rear of 91 Saugatuck Avenue including a dumpster.
The court finds that the servicing of a garbage dumpster requires a very large vehicle to be able to access the rear of 91 Saugatuck Avenue and would do so by backing down the shared common driveway to mechanically empty the dumpster into the vehicle. That service vehicle would require the use of most of the width of the common shared driveway. There is no fence down the middle of the driveway. The driveway contains no painted lines. No bump or any asphalt delineation between the two pieces of property is shown in the photograph. It appears to the naked eye that the entire driveway was paved at the same time from Saugatuck Avenue to the rear property line of both properties. The driveway appears to be in good repair. The buildings at 91 Saugatuck Avenue and 95 Saugatuck Avenue are approximately 100 years old each. Heather Bliss also acquired the building, land and improvements at 87 Saugatuck Avenue, which has no driveway. 87 is adjacent to 91. The rear of 87 Saugatuck Avenue is paved and probably is accessed by the shared common driveway between 91 and 95. The court finds that there is no driveway serving either of the two above premises, 91 and 95, except for the shared common driveway located between the two buildings. There is insufficient space on the non-driveway side of both buildings at 91 and 95 to provide vehicle access to the rear of either 91 or 95 Saugatuck Avenue.
This Standard applies to all easements which are encompassed within the designation of " easements created by operation of law." Included are easements created (1) by implication, (2) by adverse use (prescription), and (3) by necessity. Since none of these easements are created by a written instrument evidencing the reservation or granting of such easement, they are unaffected by the general recording statute, and the existence of the easement is not dependent upon compliance with the requirements of that statute as to recording. However, the existence of such an easement which encumbers a servient estate must be reconciled with the general rule that a person acquiring title to land may rely on the land records to disclose the status of title of that land. " The maintenance of the effectiveness of our registry system requires that one who relies in good faith upon a record title apparently complete shall be protected against any claimed interest not recorded, of which he has no notice." Hawley v. McCabe, 117 Conn. 558, 564-65 (1993).Connecticut Standards of Title, 1999 Edition, Standard 2.9, comment 1.
Easements may be created by express grant, implication, necessity, and prescription. Cheshire Land Trust, LLC v. Casey, 156 Conn.App. 833, 844-45 (2015).
Neither party offered a recorded driveway easement, either by a survey or map recorded on the Westport Land Records or an executed driveway easement duly recorded. No such unrecorded documents of either nature were furnished to the court. The court must conclude that there is no driveway easement created by express grant.
" With regard to a prescriptive easement, General Statutes § 47-37 provides: ‘No person may acquire a right-of-way or any other easement from, in, upon or over the land of another, by the adverse use or enjoyment thereof, unless the use has been continued uninterrupted for fifteen years.’ In Connecticut, therefore, a prescriptive easement is established by proving an open, visible, continuous and uninterrupted use for fifteen years made under a claim of right." (Internal quotation marks omitted.) O’Brien v. Coburn, 39 Conn.App. 146, 148 (1995).
Insufficient evidence of the elements of a prescriptive easement were offered before this court. The court must conclude that the evidence before this court, at this time, does not support a prescriptive easement. The court infers that it is likely after a full title search and the presentation of all relevant evidence that a prescriptive easement of access and egress, along the entire width of the paved driveway between the two buildings at 91 and 95 can be demonstrated.
An implied easement is typically found when land in one ownership is divided into separately owned parts by a conveyance, and at the time of the conveyance a permanent servitude exists as to one part of the property in favor of another which servitude is reasonably necessary for the fair enjoyment of the latter property ... In the absence of common ownership ... an easement by implication may arise based on the actions of adjoining property owners ... There are two principal factors to be examined in determining whether an easement by implication has arisen: (1) the intention of the parties; and (2) whether the easement is reasonably necessary for the use and normal enjoyment of the dominant estate. (Internal quotation marks omitted.)O’Brien v. Coburn, 39 Conn.App. 146, 148 (1995).
The court finds that the reasonable intention of the parties that owned 91 and 95 Saugatuck Avenue was that vehicles would access the rear of all these adjacent buildings and that vehicle access would be along and through the common shared driveway located between 91 and 95 Saugatuck Avenue. The court finds that none of the two properties have any other vehicle access other than through the shared common driveway between 91 and 95. The court also finds that the asphalt paved driveway extends from Saugatuck Avenue to the rear property line of both 91 and 95 with the entire common driveway between the two buildings on 91 and 95 paved in asphalt and the entire rear of both properties equally paved from the buildings to the rear property line. The photograph before this court establishes that the asphalt pavement of the common shared driveway is the same on both parcels and the same as the asphalt paving from the buildings on 91 and 95 to the rear property line. The court further finds that the shared common driveway is the only access to the rear of both 91 and 95. The court finds that the shared common driveway is necessary to the parking of vehicles at the rear of both buildings, access for service vehicles, and removal of refuse generated by both buildings.
The evidence before this court, solely for the limited purposes of the Motion for Sanctions, has established an implied easement for 91 Saugatuck Avenue to use the entire width of the shared common driveway for access to the rear of the building at 91 Saugatuck Avenue for all purposes.
The evidence before this court, solely for the limited purposes of the Motion for Sanctions, has established an implied easement for 95 Saugatuck Avenue to use the entire width of the shared common driveway for access to the rear of the building at 95 Saugatuck Avenue for all purposes.
Originating in the common law, easements by necessity are premised on the conception that " the law will not presume, that it was the intention of the parties, that one should convey land to the other, in such manner that the grantee could derive no benefit from the conveyance ..." Collins v. Prentice, 15 Conn. 39, 44 (1842). An easement by necessity is " imposed where a conveyance by the grantor leaves the grantee with a parcel inaccessible save over the lands of the grantor ..." Hollywyle Assn., Inc. v. Hollister, 164 Conn. 389, 398, 324 A.2d 247 (1973). The party seeking an easement by necessary for the use and enjoyment of the party’s property. Schultz v. Barker, 15 Conn.App. 696, 7023, 546 A.2d 324 (1988).Thomas v. Primus, 148 Conn.App. 28, 33 (2014).
The earlier Connecticut cases applied easements by necessity to landlocked parcels and implied an easement by necessity for ingress and egress. The more recent cases have applied easements by necessity to property landlocked for commercial utility purposes even if the property was not landlocked for ingress and egress. Francini v. Goodspeed Airport, LLC, 164 Conn.App. 279, 287 (2016), affirmed 327 Conn. 431 (2018).
The court finds, only for the limited purposes of this Motion for Sanctions, that there is an easement by necessity to access the rear of both properties 91 and 95, for all purposes over the entire width of the shared common driveway. This easement by necessity would include but not be limited to utilities service vehicles, repair and maintenance vehicles and equipment, vehicle parking for tenants and guests, and garbage collection service utilizing the entire width of the driveway for the entire length of the driveway. The court also finds, only for the limited purposes of this Motion for Sanctions, an implied easement for ingress and egress for all purposes including the above-mentioned vehicles and equipment for both 91 and 95 Saugatuck Avenue to access the rear of both parcels 91 and 95. The photograph before the court shows adequate paved access to the rear of both buildings to accommodate vehicles. It would appear reasonable to infer that this unrecorded unwritten common shared driveway easement created by both implication and necessity has existed for as long as the buildings have existed, probably for at least 100 years.
This court concludes that the legal description of 91 Saugatuck Avenue includes the implied shared common driveway easement with a shared common driveway easement by necessity without the need to state that in the formal legal description. The court further concludes that the legal description of 95 Saugatuck Avenue includes that same shared common driveway easement, both implied and by necessity, without including that language within its formal legal description.
Based on the evidence before the court on the Motion for Sanctions and the court’s review of the Landcore pleadings, it appears to this court that the allegations of trespass in the Landcore Management, LLC lawsuit is the receiver driving a vehicle down the shared common driveway from Saugatuck Avenue to park its vehicle toward the rear of 91 Saugatuck Avenue to perform its receiver duties including contacting the tenants, collecting the tenants’ rents, performing maintenance and inspection duties, and thereafter exiting the premises at 91 Saugatuck Avenue using the same shared common driveway to proceed onto Saugatuck Avenue. It would appear, by inference, that the third persons that are alleged to be using the shared common driveway with the consent of the receiver are those very tenants and their guests as well as regular residential service personnel such as cable, gas, electric, water, repair, and refuse disposal.
The court finds that the Tucker case is applicable to the facts of this case. The court finds that the receiver is not using any portion of any other property other than 91 Saugatuck Avenue, Westport, Connecticut. The court finds that the receiver has the control and possession of the real property at 91 Saugatuck Avenue, Westport including the building and improvements, the land, utility services, and the use of the entire width of the shared common driveway located behind the two buildings at 91 and 95 to access the rear of 91. The court further finds that the defendant, Heather Bliss, did not obtain court permission for the commencement and maintenance of the Landcore Management, LLC lawsuit. The court finds that the defendant, Heather Bliss, is in violation of the March 7, 2017 receivership order by reason of the commencement and maintenance of this lawsuit that has interfered with the performance of the receiver. The court further finds that the receiver, in utilizing the shared common driveway and granting permission to the tenants, their guests and service personnel, is acting within its court authorized duties. There is no evidence that the receiver is attempting to collect rents from 95 Saugatuck Avenue or to otherwise manage or maintain the building at 95 Saugatuck Avenue, Westport, Connecticut.
The court hereby continues this Motion for Sanctions (# 205.00) in order to determine if the Landcore Management, LLC lawsuit, FST CV 17-6033110 S, is still pending and if so, whether or not to impose sanctions on the defendant, Heather Bliss, and if such sanctions are to be imposed, the nature and extent of the court imposed sanctions.
The court recognizes the right of the defendant, Heather Bliss, to use appropriate legal procedures for the purpose of obtaining clarification concerning ingress and egress, uses, utility rights, access to utilities, repairs, and maintenance of the shared common driveway. The court finds that under the circumstances of this case, those legal procedures should not have included the receiver, Landcore Management, LLC.
The court hereby continues the hearing on the Motion for Sanctions to Friday, January 26, 2018 at 10:00 a.m. before the undersigned in order to determine if the Landcore Management, LLC lawsuit, FST CV 17-6033110 S, has been withdrawn and if not, whether or not to impose sanctions on the defendant, Heather Bliss, and if such sanctions are to be imposed, the nature and extent of those court imposed sanctions.