Opinion
KNLCV125014369S
05-20-2016
Anders B. Jepsen v. Beth M. Camassar et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Timothy D. Bates, J.
This case concerns an extended dispute between members of an unincorporated residential beach association in New London, Connecticut. The dispute centers on the legality of certain amendments to the formation documents of the association and whether the adopted changes to those documents constitute a slander of title.
On or about March 17, 1954, The Quinnipeag Corporation, a private Connecticut corporation, recorded on the land records of the City of New London the " Plan of the Subdivision of the Land of the Quinnipeag Corp and Layout of Admiral Drive & Billard Rd., New London, Conn. November 1953, Scale: 1 inch=50 Feet." Signed by Waldo Clark, President, and approved by the Planning Board of the City of New London on November 16, 1953. Plaintiff's Exhibit 4. The map laid out residential subdivision lots and streets and also depicted a 250-foot-long strip of land running along Long Island Sound on the opposite side of Pequot Avenue from the subdivision. On the filed map the strip was designated " Beach Rights." Id. The deeds to each of the lots included the right of property owners " . . . to pass and repass on foot . . . over a certain passway . . ." called " Beach Right of Way, " leading to Pequot Avenue at a point across the street from the Beach Rights. Plaintiff's Exhibit 1. The deed limited the buildings on the each of the lots to a single-family residence and a garage. Id. The deed further stipulated, " The word family as used herein shall be construed to mean any collective body of persons who regularly reside together and form a single household, but shall not be deemed to include lodgers or boarders." Id.
In addition to receiving the deed to the lot, upon purchase, the owners of lots also received a deed conveying a 1/48th interest in the " Beach Rights" parcel. Plaintiff's Exhibit 2. This deed provided that " . . . the Grantee, his heirs and assigns shall use and have access to the . . . (beach lot) . . . in common with those to whom interests in said land have or may hereafter be granted solely for the purpose of sitting, taking family meals, and/or bathing upon the beach . . ." Id. The deed stated that use of the beach by the grantee " . . . shall be limited to the grantee, his heirs and assigns, and those who dwell with and form a part of the family of the grantee . . ." but that these rights can only be exercised by the grantees " . . . during such times as they shall dwell on the premises . . ." Id. It then stated, " In event the grantee shall lease the premises . .., the tenant thereof and those who dwell with and form a part of the family of said tenant may exercise the use to the same extent as the grantee and in lieu of the grantee's right to so use . . ." Id. It also provided, " The word family as used herein shall have the same meaning as the term is defined in the deed to the premises . . ." Id., which as noted above is " construed to mean any collective body of persons who regularly reside together and form a single household, but shall not be deemed to include lodgers or boarders." See Plaintiff's Exhibit 1.
Under the terms of the deeds regarding the beach interests, restrictions on use could be modified, but only " . . . by a majority vote in writing of the owners of the premises conveyed. Each owner, (or in the case of joint ownership or ownership in co-tenancy, such joint owners or owners in co-tenancy together) shall be entitled upon any such vote to such number of votes as the numerator of their fractional interest in the premises conveyed, and upon any such vote, the majority shall be determined according to the sum of the votes so counted." Plaintiffs' Exhibit 2, Para. 4.
In addition to receiving the two deeds, the owners of the 48 lots automatically become members of the Ballard Beach Association, the purposes of which are, according to its By-Laws, Article 1.3:
" a. To safeguard and improve our respective interests in our homes or building lots and in the Beach; and, to regulate the use thereof, consistent with the covenants and restrictions of our deeds, for our mutual benefit; " b. To provide for our continued use and enjoyment of the bathing privileges, boating privileges, social activities and of any and all associated uses relating to our continued use and enjoyment of the Beach. " c. To provide for the doing of all necessary, suitable and proper acts in our behalf in order to ensure the continued and full enjoyment of all uses, privileges, and activities by us, the members of the Association, our families, and our guests; and in order to foster and stimulate good fellowship and a friendly and considerate relationship among all persons privileged to use and enjoy the Beach. " d. To provide and establish the organization and procedural methods through which members of the Association may have a voice in the conduct of the affairs of the Association and through which cooperative and united action may be achieved for our mutual benefit." Plaintiff's Exhibit 5.
Article 2.1 of the By-Laws affirms that each of the owners of a lot has a one-forty-eighth (1/48) interest in the beach. Id. By accepting the beach interest, Article 2.4 provides that each owner agrees to " . . . observe and comply with the provision of the . . . deeds and By-Laws, and any amendments thereto . . ." Id. Under the By-Laws, the Association is to be run by an Executive Committee, consisting of nine members of the Association elected at an annual meeting. Id., Articles 6.1 and 6.2. The Association can collect dues and assessments and declare a member not in good standing if the member does not make required payments or violates rules and regulations. Id., Article 2.7.
In 2008, Craig Barrila (originally a plaintiff in this matter but now no longer an appearing party) purchased 755 Pequot Avenue, one of the 48 house lots in Billard Beach, and although, as he testified, he did not personally use the beach, he allowed his girlfriend and her three children to swim, hold campfires and party at the beach. See Barrila testimony, 12/16/15. Barrila testified that initially no one objected to this conduct. However, he stated that in July 2011, when he was away in Arizona, he received a telephone call from a representative of the Association, stating that these individuals could not use the beach without his being present. Id. Prior to the telephone call to Barrila, testimony and evidence received at the trial does not indicate any significant concern being expressed about use of or conduct on the beach by members of the Association.
In reaction to the use of the beach allowed by Barrila and what was perceived to be a lack of clarity in the deeds and By-Laws regarding allowable use of the beach, a group of residents including Garon Camassar, an attorney and husband of defendant Beth Camassar, in the summer of 2011, began to circulate a petition for a " Modification of Covenants and Restrictions re Billard Beach, New London, Connecticut." See Testimony of Garon Camassar, 12/18/15. This Modification (Plaintiff's Exhibit 6, referred to hereafter as the " first Modification")--which all parties now agree is of no force or effect--purported to supersede all covenants and restrictions contained in the conveyance of the beach lots. Paragraph (2) of the first Modification sought to define and limit the allowable uses and users as follows:
" (2) That the Grantees, their heirs and assigns, shall use and have access to the Beach Lot in common with those to whom interests in said Beach Lot have or may hereafter be granted solely for the purpose of sitting, bathing, taking family meals, and related activities . . . Use of the Beach Lot by the Grantees shall be limited to them, and to their heirs and assigns, and to those who dwell with and form a party of the family of the Grantees, and to their parents, children and grandchildren, whether or not such parents, children or grandchildren dwell upon such Residential Lot. Those persons who dwell in the residence who are Owners of the Residential Lots appurtenant hereto (but not their parents, children or grandchildren) may invite such guests to the beach no more than twice per week, and not exceeding ten (10) in number, provided that an Owner of the Residential Lot herein referred to herein is in attendance at the Beach Lot when such Owner's guests are present."
Paragraph (2) of the first Modification, id., further provided:
" Use of the Beach Lot by all persons is further subject to the following: " a. Guests may not exceed six (6) in number on Saturdays, Sundays and Legal Holidays between May 25th and September 10th of each year. " b. All campfires must be completely extinguished upon completion of use and all coals must be removed from the Beach Lot at the end of such use. No guest shall be permitted to maintain a campfire. " c. No beach parties shall be conducted earlier than 6 P.M. or later than 10 P.M. on any day and any garbage or debris generated from such party shall be removed from the Beach Lot immediately after the termination of the party. " d. No dogs, cats or other pets are permitted on the Beach Lot between May 25th and September 10th of each year. " e. No excessive noise shall be generated on the Beach Lot between May 25th and September 10th of each year."
The first Modification also increased the percentage of residential lot owners needed to revise these Beach use restrictions from a majority to 75% of lot owners. Plaintiff's Exhibit 6, Para. 4. Following execution of the document by a majority of owners of house lots, the first Modification was recorded in the New London Land Records in Volume 1941, Pg. 140. Id. Testimony and evidence during the trial indicated that, contrary to the requirements of the Beach Deed, no formal " vote" was ever noticed or taken on the first Modification; rather, the circulators assumed that once they had obtained the signatures of a majority of lot owners, the deed was recordable. The court noted during the trial that a " vote" requires more formality than just obtaining signatures. Black's Law Dictionary 10th Ed. (2009), defines a vote as " The expression of one's preferences or opinion in a meeting or election by ballot, show of hands, or other type of communication." Accordingly, the first Modification appears to have been a legal nullity. It was explicitly superseded by the " Amended and Restated Covenants and Restrictions Regarding Billard Beach, New London, Conn., dated June 2014 recorded on December 23, 2014 at V. 2095 of the New London Land Records" (Plaintiff's Exhibit 7, the " second Modification" to be discussed below). Further, the parties have stipulated the first Modification is no longer in effect. See Stipulated Facts, December 16, 2015.
The terms of the first Modification had particularly upset Plaintiff Anders B. Jepsen, a member of the Association and owner or 757 Pequot Avenue as well as his wife, Beth. Beth Jepsen testified at trial that her husband and she had no children of their own and had become accustomed to holding family picnics on the beach for their siblings, nieces and nephews. She also testified that they allowed these guests to swim at the beach, even if she and her husband were not present, and wished to continue to do so. See testimony of Beth Jepsen, December 19, 2015. Consequently on February 14, 2012, Anders Jepsen and Craig Barrila initiated this action against all the other members of the Association, originally seeking to invalidate the first Modification, contending, among other charges, that it had been improperly enacted and was contrary to their property interests.
In response to the suit, the parties engaged in prolonged discussions, including mediation, seeking to resolve the issues raised in the legal action, while still trying to respond to the concerns of the Association members regarding uncontrolled use of the beach. (See Barilla testimony, 12/16/15.) The Association leadership was particularly concerned about having the beach open to numerous unknown individuals and thus exposing the owners to possible tort claims in the event of accidents and injuries. See testimony of Ronald Beausoleil, 12/17/15.
In the course of these negotiations, the proponents of the Modification, working with the Executive Committee of the Association, developed and proposed the " Amended and Restated Covenants and Restrictions Regarding Billard Beach, New London, Connecticut." See Plaintiff's Exhibit 7 (hereinafter referred to as the " second Modification"). This document, as eventually approved, acknowledged that the first Modification raised " . . . certain questions . . . regarding the effect of the modifications on the use of the Beach Lot, resulting in a divisive state of affairs which the undersigned Owners desire to address and resolve without further discord and expense, so that the Billard Beach community may continue to enjoy the tranquility and neighborliness to which it is accustomed . . ." Id.
The second Modification--which did not have the approval of the Jepsens or Barilla--principally changed the user restrictions in Paragraph 2 of the first Modification, replacing them with new Paragraphs 2, 3 and 4, which read:
" (2) The Owners, their heirs and assigns, shall use and have access to and the right to use the Beach Lot in common with those to whom interests in said Beach Lot have or may hereafter be granted solely for the purpose of sitting, taking family meals, bathing and/or related activities upon the beach included within the northerly and southerly sides of said Beach Lot when projected in the same courses indefinitely toward the southeast. It being understood and agreed that said use of the Beach Lot by the Owners shall be limited to the Owners, their heirs and assigns, and those who dwell with and form a part of the family of the Owners, and to their parents, children and grandchildren, whether or not such parents, children or grandchildren dwell upon a Residential Lot. The word " family" as used herein shall be construed to mean any collective body of persons who regularly reside together and form a single household, but shall not be deemed to include lodgers or boarders.
" (3)(a) Those persons who dwell in the residence who are Owners of the Residential Lots appurtenant hereto (but not their parents, children or grandchildren) may invite Day Guests to the Beach Lot, not exceeding ten (10) in number. Provided, however, that an Owner of the Residential Lot referred to herein be in attendance when such Owner's Day Guests are present. A Day Guest is an Owner's visitor who does not stay overnight at the Owner's residence.
" (b) Those persons who dwell in the residence who are Owners of the Residential Lots appurtenant hereto (but not their parents, children or grandchildren) may invite House Guests to the Beach Lot, not exceeding five (5) in number. An Owner need not be in attendance when a House Guest is present at the Beach Lot. A House Guest is an Owner's visitor who is an overnight guest at the Owner's residence.
" (4) In the event the Owners shall lease a Residential Lot, the tenant thereof and those who dwell with and form a part of the family of said tenant may exercise the use of the Beach Lot to the same extent as the grantees and in lieu of the grantees' right to so use during the term of the lease." (Plaintiff's Exhibit 7.)
The second Modification also eliminated the 75% requirement for approval of a change in the use of the premises, returning the requirement to " a written vote of the majority of Residential Lot Owners, in form suitable for recording in the New London Land Records. Each owner (or in the case of joint ownership or ownership in co-tenancy, such joint owners in co-tenancy together) shall be entitled upon such vote to such number of votes as the numerator of their fractional interest in the property conveyed." Id., Para. 7.
These proposed changes were officially presented to the annual meeting of the lot owners at the New London Senior Center on October 10, 2014. See Defendant's Exhibit C. Notice of the meeting had been sent seven days before the meeting date to all beach owners for whom the callers of the meeting had street or email addresses. See testimony of Anne Lizarralde, 12/18/15. A ballot or proxy was attached to the notice of the meeting, allowing adoption or rejection of the proposed amendments. See Defendants' Exhibit C. The meeting became quite contentious. See Testimonies of Garon Camassar 12/18/15 and Beth Jepsen 12/19/15. Mrs. Jepsen stated at hearing that she felt " severely prejudiced" by the proposal, which, again, from her point of view, discriminated against families without children. See Testimony of Beth Jepsen. She spoke at length, with some members interrupting her and trying to cut her off. See minutes of meeting. Id. Garon Camassar endorsed the proposal, stating it was intended to protect the expectations of everyone it could without violating the underlying deed restrictions and perhaps triggering a reverter. See testimony 12/18/15.
Robert McLaughlin, a Board member, chaired the meeting and stated at its opening that the Board had agreed to hold open the time for collection of proxies until November 1 and accordingly no vote was to be taken following the discussion. See Minutes of Meeting, Plaintiff's Exhibit 22. Twenty-two votes in favor of the second Modification--not a majority of all lot owners--were officially received by November 1, and seven more votes in favor, either in the form of proxies or signed documents, were received and accepted in the weeks thereafter, representing twenty-nine of the 48 properties--a majority. See Plaintiff's Exhibit 24 and testimony of Beth Jepsen 12/19/15. The second Modification was deemed approved and recorded on December 23, 2014 in Volume 2095, Pages 134-63 of the New London Land Records. Plaintiff's Exhibit 7. The complaint in this legal action was then revised to challenge the validity of the second Modification.
ISSUES
I. Was the Procedure for the Approval of the Second Modification Legal?
The plaintiff first claims that the " vote" approving the 2014 Modification was invalid because of improper notice. All parties agree that notice was sent out by mail or email seven days prior to the October 10, 2014 meeting date. It appears that the conveners lacked the email and home addresses for a few of the property owners, and, as a result, written notice appears to have been provided to at least 41 of the 48 owners. See testimony of Anne Lizarralde, 12/18/15. Of the property owners who did not receive official notice, none have joined Jepsen in challenging the validity of the approval.
The plaintiff points out that for an official meeting of the Billard Beach Homeowners Association, 15 days' notice is required. See Plaintiff's Exhibit. 5, Article 3.2. The defendants counter that the portion of the meeting dedicated to the debate of the second Modification was not a meeting of the Association, but rather a meeting of persons with a deeded interest in Billard Beach. (See Exhibit 2.) All parties to this suit have stipulated, " The Billard Beach Association is a voluntary association and has no authority over the members or other Billard Beach owners." (See Stipulated Facts, 12/16/15.) While the court has some reservations regarding this assumption (see footnote below), the court and all parties are bound by the stipulation for purposes of this litigation, and, therefore, for purposes of the meeting to consider the second Modification, members of the Association may have been the informal conveners of the discussion, but the portion of the meeting dedicated to the beach use was not considered by any party to be an official meeting of the Association. Rather, it was a gathering of persons with deeded interests in the beach, considering changes in the use of the beach. The beach deed by its own terms does not require that the vote occur at a meeting of the owners; the vote can occur by mail or by proxy without the necessity of any meeting. See Plaintiff's Exhibit 2. In any event, no vote was taken immediately after the discussion; rather the date for casting of ballots or proxies was deferred until November 1. As the parties have agreed that the presentation of the second Modification did not occur as part of the official meeting of the Association--rather as a discussion following the annual meeting--and as no official action was taken at the meeting regarding the second Modification, the 15-day notice provision for a meeting in the Association By-Laws does not apply, and the legal question becomes whether, under general standards of due process, adequate notice for the vote was provided. The defendants point out that both of the initial plaintiffs knew of the meeting, with Beth Jepsen, wife of the lead plaintiff, participating actively in the discussion, and Barrila participating by proxy. As a result of their awareness and participation, Jepsen and Barilla, in effect, acknowledged the adequacy of the notice and even if 15 days' notice were required, appear to have by participation waived standing to object. See Schwartz v. Town of Hamden, 168 Conn. 8, 14-15, 357 A.2d 488 (1975) and Fairfield County Bariatrics and Surgical Associates, P.C. v. Ehrlich, Superior Court, Judicial District of Fairfield, Dkt. # CV-10-50291046-S (March 8, 2010, Levin, J.), 2010 WL 1375397, at 12, n.8. No one else has objected to the discussion for lack of notice. By all accounts, the meeting was well attended and contentious, with all who wished to speak their mind doing so. (See minutes of meeting, Plaintiff's Exhibit 22.) Unlike the process of approving and recording the first Modification, a formal " vote" was noticed and conducted prior to recording of the second Modification. Also, by extending the vote into November at the meeting, members, in effect, received more than 15 days' notice of the vote if such notice were required. The plaintiff objects that by the November 1 extension date, only 22 properties had submitted proxies approving the second Modification--not a majority of the 48. However, the plaintiff does not contest that by the time of recordation of the Second Modification, 28 properties had approved the changes, more than enough for ratification. The plaintiff does not allege that any of the proxies or approvals received after November 1 were illegitimate--only that they arrived after that date and were accepted. The Beach Deed (Plaintiff's Exhibit 2) requires a " majority" vote for approval. It does not by its terms set a time limit for that vote. The Defendants argue that the proxies did not, in fact constitute the ultimate vote, because the second Modification was not in effect until it was signed and recorded on the land records, a process that necessarily extended beyond November 1. Given the time necessary to collect and memorialize the approvals in recordable form, the court does not find the allowance of additional time to allow the collection of proxies and signatures to ratify the Modification to be so unreasonable as to be a violation of due process. The Beach Deed only requires a " vote" of the majority of lot owners to change uses of the beach; unlike the recording of the first Modification, a " vote" occurred regarding the second Modification. See Black's Law Dictionary, 10th Ed., supra .
Following closing argument in this case, the parties were asked to consider whether the Billard Beach Association as an unincorporated association, should be a party in this proceeding pursuant to C.G.S. 52-76. The response from all parties was negative, and while the statute appears to mandate its participation in a case such as this, the court determined that the Association was not a necessary party for determination of the issues and has proceeded to decide the case based on the trial record. The Association certainly had constructive notice of the proceeding, as all its members were parties in the case. Consequently, its absence does not appear to " . . . implicate the court's subject matter jurisdiction." Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 289, 914 A.2d 996 (2007). That said, the court would encourage the parties to reconsider the assumption that the unincorporated association is a legal nullity with no legal authority. See 20 Harvard Law Review 58 November 1906. It has four historic sources of authority: 1. Its By-Laws (Plaintiff's Ex. 5) 2. The Amended and Restated Covenants and Restrictions Regarding Billard Beach, New London, Connecticut (Plaintiff's Ex. 7) 3. The Deeds to the House Lots (Plaintiff's Ex. 1) and 4. The Deeds to the Beach (Plaintiff's Ex. 2). If all of these are read together, it becomes apparent that the Association board--much like a modern condominium or co-op board--has a significant role in interpreting and enforcing the covenants and restrictions both for the house lots and the beach. Without the association, there is no means of interpreting or enforcing the provisions of these documents, except through litigation. All of these documents were originally adopted at the same time, and they are meant to be read together, with the Association as a center piece. Together, in the opinion of this court, they create certain contractual and property rights, including a certain amount of authority vested in the Association and its Executive Committee, binding on owners of the 48 house lots. This observation is dicta and can be ignored, but the court would encourage the parties to reconsider the Association's legal existence and authority.
A voluntary association is not held to the same " due process" standards as a governmental authority. " A voluntary association has the right to manage its affairs and apply its bylaws; no court has the right to reverse an association's policies or procedures unless they are not within legal limits or are based on fraud, arbitrariness, or collusion. See Oliver v. National Collegiate Athletic Assn., 155 Ohio Misc.2d 17, 2009-Ohio-6587, 920 N.E.2d 203 (C.P. 2009)." Associations and Clubs, Am.Jur.2d 2011 Cumulative Supplement, Sec. 27. As noted, there was no time limit in the Beach Deed for casting of votes approving modifications of the uses in the Deed, and so, the extension of time did not violate deed or by-laws. Further, there is no contention that the later than anticipated signing of the proxies and recording of the Modification were based on " . . . fraud, arbitrariness or collusion . .., " only on a desire to allow all who wished to vote to do so.
The plaintiffs contend that at the time of the vote, the first Modification was still in effect and required 75% approval by the lot owners, not a majority. However, while paragraph 4 of the Beach Deed (See Plaintiff's Exhibit 2, Para. 4) allowed the beach owners to change the restriction on " uses" of the beach, it did not include to authorize an increase or decrease in the percentage of votes to approve a change of use. Therefore, the 75% requirement was ultra vires and void ab initio, and the majority vote of the lot owners was sufficient to enact the Modification.
Based on the above analysis, the court upholds the validity of the ratification of the second Modification.
2. Did the Owners of the Beach Interests Have the Authority to Make the Amendments?
The plaintiff argues that the owners of the beach interests exceeded their authority by approving the second Modification and thereby illegally diminished the value of the Billard Beach subdivision lots. He submits that the provisions of Paragraph 2 of the Beach Deed constitute a covenant running with the land, including the house lots, and cannot be altered without unanimous approval of all owners of the subdivided lots. Citing Mannweiler v. LaFlamme, 46 Conn.App. 525, 535-36, 700 A.2d 57, cert denied 243 Conn. 934, 702 A.2d 641 (1997).
In taking this position, the plaintiff ignores the plain language of the Beach Deed, which specifically allows the owners of a majority of the house lots to modify the restrictions on beach uses set forth in Paragraph 2. See Plaintiff's Exhibit 2. All of the purchasers of the house lots acquired them with the realization that the beach use restrictions could be changed. If the original Beach Deed did not allow such changes or if the owners attempted to use Paragraph 2 of the Beach Deed to modify uses on the building lots--as opposed to the beach, then the plaintiff's reliance on Mannweiler v. LaFlamme, supra, would have merit. However, Paragraph 2 allows changes in beach use to occur if properly approved, and all purchasers of house lots were necessarily aware of that possibility when they purchased their lot and associated Beach Rights. As noted in Restatement of Laws, Property-Servitudes, Sec. 7.1, American Law Institute (1998, updated to 20016) a provision in a deed restriction permitting modification without the unanimous concurrence of all property owners is common and legally enforceable.
The plaintiff argues that changing or expanding the categories of who can use the beach somehow illegally extended the ownership of the Beach Rights. The genesis for these changes was the need, in the face of Barrila's allowance of free use of the beach by multiple, unsupervised persons, to define more clearly whom a lot owner could invite to or allow on the beach, for what activities, and in what number and at what times. The changes recognized that renters of the houses could allow their tenants to " use" the beach, and that owners of the beach could " use" the beach for purposes of entertaining a certain number of guests. None of these changes affected the " ownership" of beach rights; rather the changes more precisely described and to some degree expanded those rights. Instead of severing the beach lot from the house lot--as alleged by the plaintiff--the changes clarified and defined the rights of lot owners and their tenants to use the beach.
The plaintiff objects to the allowance in Paragraph (2) of the second Modification (Plaintiff's Exhibit 7) of " related activities" on the beach, claiming that this provision will allow undefined and perhaps dangerous activities. The court reads the phrase " related activities" in accordance with the interpretive principal of " ejusdem generis, " meaning that any other " related" use has to be of the same class of and of a similar nature and intensity as the specifically permitted uses--in this case " . . . sitting, taking family meals, bathing . . ." --appearing in the deed right before the allowance for " related activities." See Black's Law Dictionary, supra . If an activity occurring on the beach is not similar in nature to those specific uses, it is prohibited. The allowance for such activities permits some flexibility in range of beach activities, but not unlimited flexibility, presumably preserving the " family" nature of the beach.
The original beach deed included a reverter clause which reads:
" It is understood and agreed between the parties hereto that this conveyance is subject to the express condition subsequent that the fee herein conveyed shall revert to the grantor, its successors or assigns for the use and benefit of all other owners in the land herein conveyed, if the same is alienated separately and apart from the land on Pequot Avenue, hereinbefore referred to. It is further agreed that a similar condition subsequent shall be made a part of all other conveyances of interests in said above described land." (See Plaintiff's Exhibit 2.)
Paragraph 10 of the second Modification (Plaintiff's Exhibit 7) changed the wording of the reverter clause to the following:
" It is further understood and agreed between the parties hereto, and all successive Owners having an interest therein, that this conveyance is subject to the express condition subsequent that the fee herein conveyed shall revert to The Quinnipeag Corporation, its successors, and assigns for the use and benefit of all of the Owners of the interest in the land herein conveyed, if the same is alienated separately and apart from the Residential Lots on Admiralty Drive, Billard Road, Pequot Avenue, Glenwood Avenue, Reyquinn Street, Parkway South and Montauk Avenue, as hereinbefore referred to. It is further agreed that a similar condition subsequent shall be made a part of all conveyances of interests in the above Beach Lot and shall bind all successive parties in interest, and shall run with the land, for all purposes."
The court has compared the wording of the old and new reverter clauses and fails to find any difference of significance between them. The reverter clause only applies if an interest in the beach is severed from an interest in a lot. By its rewording and reference to particular streets in the subdivision, the second Modification makes clearer that if there is such a severance, the beach title shall revert to the corporation and be available for use by all lot holders, including, presumably, the owner of the house lot transferred separately from the beach lot. Therefore, there does not appear to be any change of substance or purpose between the wording of the original beach deed and the second Modification.
The plaintiff charges that the wording of the second Modification somehow eliminated or diminished the rights of tenants under the original beach deed to utilize the beach if they were renting a house in the subdivision. In making this claim, the plaintiff overlooks the language of Paragraph 4 of the second Modification, which reads:
" In the event the Owners shall lease a Residential Lot, the tenant thereof and those who dwell with and form a part of the family of said tenant may exercise the use of the Beach Lot to the same extent as the grantees and in lieu of the grantees' right to so use during the term of the lease." (Plaintiff's Exhibit 7.)
While the wording in the second Modification of the right of tenants to use the beach may be somewhat different from the original Beach Deed, the right of tenants to use the beach while renting a house in the subdivision seems unaffected by this change in wording.
The plaintiff claims that the second Modification inferentially allows changes in the beach deed, without the need for a majority vote of the land owners. The 2014 Modification requires for such an action " a written vote of a majority of the Residential Lot Owners, in form suitable for recording . . ." Plaintiff's Exhibit 7, para. (7). Contrary to the interpretation of the plaintiffs, the court reads this language as continuing to require a majority of all lot owners--not just a majority of those voting--to change allowed uses.
The plaintiff also contends that, to the extent that the Modification deprives him of certain property rights, the approval of the Modification, to be effective, should have been unanimous, citing Restatement of Laws (Third), Property-Servitudes, Sec. 8.3, Op.Cit. Based on the review of the plaintiff's claims in this case, the court is not aware of any change in the Beach Deed by the Modification that deprives the plaintiff of property rights. The Jepsens claim that they have been discriminated against, on the grounds that they do not have children and wish to share the beach with their nieces and nephews. However, the clause the Jepsens challenge--referring to " heirs and assigns, " which may exclude nieces and nephews--is identical to the language in the original Beach Deed. See Plaintiff's Exhibit 1. The defendants note that if brothers or sisters predecease the Jepsens, their nieces and nephews could be their heirs and assigns. Also, the wording of the Modification now allows day guests on the beach, which would presumably include nieces and nephews. See Plaintiff's Exhibit. 4, paras. 3(a) and (b). Accordingly, there appears to be no act of illegal discrimination inherent in the definition of users of the beach.
As is persuasively argued by Attorney Synodi, representing house lot owners Savas Synodi, George Synodi, Maria Synodi and herself, use of the beach by family and guests is necessarily derivative of title. The second Modification does not convey any separate right or entitlement that was not tied to or derivative from the titles held by the owners; there was no alienation of property interests in the second Modification. In his pre-trial memorandum, the plaintiff alleged that the vote of the lot owners was not valid, because the amendment process did not conform to the requirements of the Common Interest Ownership Act (CIOA). The court, during trial, expressed skepticism regarding the applicability of the act to the Billard Beach Subdivision, but upon reflection, the sharing of the lot owners of property interests in the beach as well as the walkway to the beach could arguably qualify Billard Beach Subdivision as a common interest community, subject to Common Interest Ownership Act, CGS 47-200 et seq. Section 47-218(a) of that Act states: " (a) The declaration, by-laws or surveys and plans of any common interest community created before January 1, 1984, may be amended to achieve any result permitted by this chapter regardless of what applicable law provided before January 1, 1984." While this provision limits the type of changes allowed in a pre-1984 community documents to those allowable under the Common Interest Ownership Act, it does not require--as plaintiff argues--that the amendment processes mandated by the act--including approval by a supermajority of 80% for document changes--must be adhered to by organizations formed prior to the enactment of CIOA. In fact, subsection 47-218(b), states " Except as otherwise provided in subsections (i) and (j) of Section 47-236 [which are not applicable to the changes in the Beach Deed], an amendment to the declaration, bylaws or survey and plans authorized by subsection (a) of this section shall be adopted in conformity with any procedures and requirements for amending the instruments specified by those instruments . . ." The amendment processes of pre-1984 common interest communities have, thereby, been " grandfathered" into the act, and as the court has found that those processes were followed, the adoption of the second Modification is valid, even if CIOA applies.
3. Slander of Title
The plaintiff alleges that the actions of the members of the Association in this matter amounted to slander of title. As plaintiffs note, an essential element of slander of title is proof of malice. See Elm Street Builders, Inc. v. Enterprise Park Condominium Assn., Inc., 63 Conn.App. 657, 778 A.2d 237 (2001). While feelings in this case have run high and while some hasty actions on the part of members of the Association may have occurred, it appears to the court that all disputed actions, including the 2010 Modification, were taken in good faith by the Association members with the intention of clarifying appropriate uses of the beach and protecting the Association members from potential liabilities arising from uncontrolled activities on the beach. The court is not persuaded that the defendants made any false statements regarding the plaintiff's title or that any of the defendants' specific actions to protect the Association were taken with malice.
Further, to establish slander of title, the plaintiff must prove that the false statements resulted in a pecuniary loss. Gilbert v. Beaver Dam Association of Stratford, Inc., 85 Conn.App. 663, 672-74, 858 A.2d 860 (2004). In the case at hand, other than costs of litigation, there does not appear to be a proven pecuniary loss on the part of the plaintiff. The plaintiff could argue that the first Modification and particularly its 75% requirement for approving any change of use somehow confused or clouded the title, but a " cloud" is not enough; there has to be a proven loss of value. Id. In this case, no monetary loss in the value of the plaintiff's property has been established.
Judgment will enter as follows:
The 2011 Modification by agreement of the parties is deemed null and void.
The 2014 Modification is declared valid and in full force and effect.
The Plaintiff's Claim of Slander of Title is denied.
Claims for Attorneys Fees and Costs, if any, have been reserved by agreement of the parties for post trial motions.