Moore v. Savin Rock Condo

Full title: Allyn Moore v. Savin Rock Condo et al

Court: Connecticut Superior Court Judicial District of New Haven at New Haven

Date published: Dec 7, 2006

2006 Ct. Sup. 22180 (Conn. Super. Ct. 2006)

42 CLR 502

Opinion

No. CV 04 4002529 S.

December 7, 2006.

MEMORANDUM OF DECISION

COSGROVE, EMMET L., J.

These actions were consolidated for trial. Both actions involve residents in the Savin Park Condominium development and the Savin Park Condominium Association (SPCA). Both actions ask the court to use its equitable powers to amend the condominium declaration.

The plaintiff Allyn Moore seeks to quiet title to a unit within the defendant SPCA. Mr. Moore asserts that he and another individual purchased the unit B-1 in building B-4 (also known as 44 Savin Park) in the 1970s. They received a warranty deed to 44 Savin Park from the declarant. Mr. Moore then acquired sole title to the unit by a warranty deed dated November 4, 1980. 44 Savin Park was and is identified in the Declaration of the Condominium as the "superintendent's apartment." The Declaration declares that the "superintendent's apartment" is a part of the common elements of the SPCA. Mr. Moore claims he has acquired title to his unit as against the SPCA and the other owners of units within the association by adverse possession. Mr. Moore requests that the court quiet title to 44 Savin Park in him and further that the court order the Declaration of the SPCA to be amended to recognize 44 Savin Park as a living unit in the association rather than a portion of the common elements. The SPCA does not oppose the claims of Mr. Moore. The defendants Willis and Shirley Graham (owners of 17 Savin Park, a unit within the SPCA) challenge the court's authority to amend the Declaration of the SPCA and further argue that Mr. Moore has not possessed his unit adversely, notoriously or in a hostile manner.

In the consolidated case of Willis Graham, one of the owners of 17 Savin Park seeks a permanent injunction to prevent the SPCA from selling a 36 Savin Park. The complaint alleges that 36 Savin Park is a portion of the common areas and facilities of the SPCA and thus cannot be sold without the unanimous consent of unit owners (emphasis added). In his trial brief, Graham's claim devolved into a claim that 36 Savin Park is the de facto "superintendent's apartment" of the SPCA and thus is a portion of the common elements of the SPCA. It is unclear what legal theory Mr. Graham is relying on to support this claim. Mr. Graham opposes the sale of 36 Savin Park. In effect Graham asks in his action that the court do what he claims it cannot in the first action, namely to amend the Declaration of the SPCA to designate 36 Savin Park rather than 44 Savin Park (Mr. Moore's unit) as the "superintendent's apartment." Mr. Graham further claims that he is entitled to attorneys fees because of the willful and wanton misconduct of the SPCA.

The SPCA asserts that 36 Savin Park is a "declared living unit" in the association that is owned by the SPCA and the unit is not a portion of the common elements of the association. It claims it has a right under the Declaration and Bylaws to sell the unit if a majority of the unit owners authorize the sale. SPCA asserts that a majority of the unit owners have authorized the sale and that the proceeds of the sale would be utilized to benefit all owners of units within the association. Finally the SPCA asserts that the plaintiff Willis Graham has an adequate remedy at law and will not suffer irreparable harm if the unit is sold.

I. The Moore Case

The initial issue presented is the jurisdiction of this court to order the relief requested by Mr. Moore, namely to determine that the plaintiff has acquired title to a portion of the common elements of the Association by adverse possession.

If the court determines that it has jurisdiction, then the court must determine whether Mr. Moore has established a factual foundation for his claim of title by adverse possession.

Finally, if the court determines that the plaintiff has prevailed on his proof of adverse possession the court, what is the appropriate measure of equitable relief?

A.

This court has jurisdiction to settle or quiet title to claims in real property pursuant to the authority of General Statute section 47-31. Section 47-31 sets out the requirements for bringing a quiet title action. Section 47-31(a) provides "An action may be brought by any person claiming title to . . . real or personal property, or both, against any person who may claim to own the property, or any part of it, . . . or to have any interest in the property, or any lien or encumbrance on it, adverse to the plaintiff, or against any person in whom the land records disclose any interest, lien, claim or title conflicting with the plaintiff's claim, title or interest, for the purpose of determining such adverse estate, interest or claim, and to clear up all doubts and disputes and to quiet and settle the title to the property." Section 47-31(f) provides that "The court shall hear the several claims and determine the rights of the parties, whether derived from deeds, wills or other instruments or sources of title, and may determine the construction of the same, and render judgment determining the questions and disputes and quieting and settling the title to the property."

A common element of a condominium, is recognized as real property under the law of the state of Connecticut. All parties to this litigation agree that the Declaration of the SPCA identified Mr. Moore's unit, 44 Savin Park, as a portion of the common areas or common elements of the association. The SPCA was created under the authority of the "Unit ownership Act." (Chapter 825 of the General Statutes.) General Statute section 47-73 provides "(e)ach unit, together with its undivided interest in the common areas and facilities, shall for all purposes constitute real property."

The initial requirement for the institution of an action to quiet title requires the giving of notice to all those who claim or may claim an interest in the property. Mr. Moore initially named the SPCA as the sole defendant in this action. The plaintiff thereafter filed motions with the court to certify this case as a class action with the SPCA being representative of the individual unit owners. Subsequently the plaintiff added the New Alliance Bank as a defendant and nominated the Bank to serve as a class representative for the mortgage or lien holders on the individual units. No certification to proceed as a class action was entered by the court. The plaintiff has not named the 89 individual unit owners nor did he name any of the mortgagors or lien holders on any of the individual units.

Ordinarily the lack of notice to all unit owners or lien holders who have an interest in the common areas or facilities of the SPCA would prevent this court from exercising jurisdiction. In this case, however the SPCA did not oppose the plaintiff's claims for relief. After the litigation was commenced the SPCA sought to amend its Declaration to give the plaintiff the relief that he sought. Proceeding in that manner would avoid the expense of service on the 89 unit owners and lien holders as well as the burdening each of its unit owners with securing legal representation in the pending litigation.

Subsequent to the filing of this action and in attempt to settle this action, on September 8, 2005 the SPCA, in accordance with its Declaration and Bylaws, endeavored to amend its Declaration so as to recognize the plaintiff's claims. It sought by amendment to:

"1. Designate Unit B1, Building #4, as an "apartment space" as defined in the Declaration, so that there will be a total of 90 "apartment spaces" instead of the present 89.

2. Delete all references to a "superintendent's apartment" or "superintendent's unit."

3. Change "eighty nine (89)" to "ninety (90)" in both places in the Declaration Paragraph A(1).

4. Delete the phrase that begins "Note" and ends "an apartment space" at the end of Declaration Paragraph A(1).

5. Change "eighty-nine (89)" to "ninety (90)" in Declaration Paragraph D.

6. Change "$2,116,600" to "2,138,500" in Declaration Paragraph F.

7. Amend Schedule B of the Declaration to refer to a total of 90 (instead of 89) individual "apartment spaces." In addition, amend paragraph numbered 1 in Schedule B to refer to 30 (instead of 29) two bedroom apartment spaces.

8. Amend Schedule C of the Declaration to divide the individual interest in the common areas and facilities among 90 (instead of 89) units, with Unit B1, Building #4 being designated as a 2 bedroom B unit, instead of the Superintendent's unit. The revised percentages are set forth in the attached Amended Schedule C.

9. Amend Schedule D of the Declaration to divide the proportionate share in profits and common expenses and the proportionate representation for voting purposes among 90 units (instead of 89) with Unit B1 being added as a 2 bedroom B unit. The revised percentages are set forth in the attached Amended Schedule D." (See Exhibit 6.)

The SPCA provided unit owners with notice of the proposed amendment. It also provided a description of the pending litigation and indicated that "Mr. Moore's attorney has already filed a lawsuit in court, but is willing to allow the association time to approve the proposed amendments before proceeding any further with the suit." An informational meeting on the proposed amendments was held on August 4, 2005.

At the special meeting of the unit owners on September 8, 2005, all unit owners and most mortgage holders appeared in person or by proxy. In accordance with the bylaws, a vote was taken. Although eighty-eight out of eighty-nine unit owners were in favor of the amendments, the amendments failed because the Declaration required unanimous approval. See Section 1.8. of the Declaration. The unit owners who opposed the amendment were the defendants Willis and Shirley Graham.

On January 17, 2006, Willis and Shirley Graham were joined as defendants in this quiet title action. The plaintiff also joined several lien holders who did not appear in person or by proxy at the special meeting of the association as identified in pleading number 110 in the court file. Mr. and Mrs. Graham have appeared through counsel. The lien holders who were named as defendants have been defaulted.

The court finds that adequate and sufficient notice of the claims of the plaintiff has been provided. The court finds that all unit owners in the association have either consented to the relief sought by the plaintiff or have been joined as a defendant to this action. The individuals who oppose the claims of Mr. Moore are now defendants in this action. The court finds that all mortgage or lien holders on the individual units have either consented to the relief sought by the plaintiff or been joined as a defendant to this action.

B.

"[T]o establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his own and without the consent of the owner . . . A finding of adverse possession is to be made out by clear and positive proof . . . The burden of proof is on the party claiming adverse possession." (Internal quotation marks omitted.) Alexson v. Foss, 276 Conn. 599, 614 n. 14 (2006).

The court finds by clear and positive proof the following facts.

The Savin Park Condominium Association was created when the enabling Declaration was recorded in the West Haven Land Records. The Declaration is dated October 3, 1970 and is recorded in the West Haven Land Records in Volume 522, Page 471. The declaration created the "90 unit multifamily development . . . Savin Park Condominium."

Paragraph A.1. of the Declaration provides "The eighty-nine (89) separately designated and legally described freehold estates consisting of the spaces or areas, being the area or space contained in the perimeter walls of each of the eighty-nine (89) apartments in said multifamily structures constructed on said property, said spaces being defined, and referred to herein as 'apartment spaces.' (Note — the unit designated for the Superintendent is not considered an apartment space.)"

In paragraph A.2. the common elements of the condominium are described in relevant part as "A freehold estate consisting of the remaining portion of the real property is described and referred to herein as the 'common areas and facilities,' which definition includes, . . . superintendent's apartment." A schedule of the percentage interest of each apartment unit in the undivided common areas and facilities is set out in Schedule C of the Declaration.

Schedule C of the Declaration identifies the location of the "Superintendent's Apartment" as being Building Number 4, Unit B1 (44 Savin Park). Since the "Superintendent's apartment" is considered a part of the "common areas and facilities" no percentage ownership interest is recognized for that unit on Schedule C.

The Declaration further provides in paragraph 1.8. "That this Declaration shall not be revoked or any of the provisions herein amended unless all of the owners and the mortgagees of all of the mortgages covering the 'family units' unanimously agree to such revocation or amendment by duly recorded instrument."

The court finds that the plaintiff Allyn Moore and Robert J. Wilson originally acquired title to 44 Savin Park in the early 1970s from the declarant. For reasons that are not known there was no objection noted with regard to this conveyance of a portion of the "common areas and facilities" of the Association. At the time, the superintendent for the Association lived in Unit B4 of Building 3b (36 Savin Park). On November 4, 1980 Robert J. Wilson conveyed his interest in 44 Savin Park to Allyn Moore by a statutory form Warranty Deed recorded in the West Haven Land Records in Volume 656, page 629.

Since 1980 Mr. Moore has continuously resided in 44 Savin Park under a claim of right. He has maintained a lock on exterior door of the premises and controlled access to the premises. He has paid real estate taxes on the premises. He has paid condominium fees assessed on the premises. He has used the other common elements of the Savin Park Condominium. He has not held himself out as a superintendent of the Association. Mr. Moore has voted as a unit owner at meetings of the condominium association.

The defendants Shirley and Willis Graham have admitted, through Requests for Admission, that "Defendants agree that 44 Savin Park should be considered and treated as a unit in the Savin Park Condominiums, with all of the rights and obligations of such a condominium unit." In their post-trial brief the Mr. and Mrs. Graham argue that Mr. Moore's ownership and use of 44 Savin Park has not been adverse or notorious. In support of this argument Mr. Graham claims that they have consented to Mr. Moore's use of the property and "they do not consider the plaintiff Moore's use of his unit and/or common areas of the condominium project to be 'notorious and adverse' to their interests." The Grahams have misplaced their focus on their own actions rather than those of Mr. Moore. To establish adverse possession it is the actions of Mr. Moore that are material to the court's determinations. The actions of the Grahams might have been material if they had somehow interfered with Moore's use of the unit or if they had filed objections on the land records. They have taken no such acts.

The court finds that Allyn Moore has proven by clear and positive evidence that he has occupied 44 Savin Park for more than fifteen years in an open, adverse and notorious manner so as to oust the SPCA and the eighty-nine owners of the individual condominium units from their interest in and possession of that part of the common elements of the SPCA known as 44 Savin Park.

C.

The Grahams assert that even if the court finds that Mr. Moore has proven his claim of adverse possession that this court does not possess the power to amend the Declaration of the Condominium. Essentially the Grahams claim that since the condominium form of ownership was created by statute "the means for amending the Declaration, is one of solely legislative fiat and approval." The Grahams further assert that this court would be violating the "constitutional separation of powers" if it were to grant Mr. Moore the relief he requests. This argument is based upon a misreading of the enabling legislation and a misunderstanding of the phrase "separation of powers."

The enabling legislation allows a developer to submit real property to the form of condominium ownership. The developer submits the property by the drafting and recording of certain documents such as a Declaration and Bylaws that meet certain minimal statutory requirements. Each unit of a condominium "together with its undivided interest in the common areas and facilities, shall for all purposes constitute real property." See General Statute 47-73. As real property the units are subject to other laws relating to the ownership or possession of real property, such as the quiet title statute, General Statute 47-31. The legislature has given this court the jurisdiction to quiet title to real estate and there is no language in the quiet title statute that excludes condominium units from the operation of the statute.

Further the Grahams' articulated "separation of powers" argument is not supported by the facts or law. The Grahams argue that since the legislature has set up criteria for the amendment of a Declaration of a condominium that therefore the court cannot order an amendment of the declaration because that would be a usurpation of legislative authority. The defendant's argument does not consider that the legislature authorized the courts to quiet and settle title to real property. Further the defendant seems to believe that the SPCA recorded the Declaration. This is not accurate. The Declarant, the Savin Ave. Condominium, Inc., created and recorded the Declaration which in turn created the SPCA. There is no merit in the "separation of powers" argument as articulated by the defendant Graham.

Having determined that Mr. Moore has established his claim of adverse possession the court must now fashion appropriate relief. Titles to units within a condominium are conveyed by deeds that reference the condominium documents. Mr. Moore already has a deed to his unit but his claims and his use of the unit are inconsistent with the language of the Declaration. The only way to afford Mr. Moore adequate, fair and full relief is to order that the Declaration be amended. It has long been established that the relief under the quiet title statute is equitable in nature. "The statutory relief authorized is equitable, and consists in a judgment quieting and settling the title to the land in dispute, and necessarily includes such incidental relief as may be proper to make the main equitable relief full and complete." Spence v. Merwin, 80 Conn. 330, 334 (1907). The Appellate Court has recognized the Superior Court's equitable power to amend a condominium's Declaration. In Grey v. Coastal States Holding Co., 22 Conn.App. 497 (1990) a superior court ordered a revision of condominium documents to effectuate the equitable relief required where several unit owners of a condominium had expanded their units into the common areas or elements of the association. The Appellate Court affirmed the use of the Superior Court's equitable powers to allow the expanded units to remain even though such unanimous consent had not been obtained and further to order that the Declaration be amended to reflect the expanded units and the accompanying changes in the common expenses.

If the court merely ordered the recording of this judgment there would remain questions regarding the assessment or collection of condominium fees and charges.

The court orders that the Declaration of the Condominium and the By laws of the Condominium be amended at the expense of the SPCA in accordance with the amendments proposed at the September 5, 2005 special meeting of the SPCA. Specifically the court orders:

The Declaration of the Savin Park Condominium Association shall be amended as follows:

1. Designate Unit B1, Building #4, as an "apartment space" as defined in the Declaration, so that there will be a total of 90 "apartment spaces" instead of the present 89.

2. Delete all references to a "superintendent's apartment" or "superintendent's unit."

3. Change "eighty nine (89)" to "ninety (90)" in both places in the Declaration Paragraph A(1).

4. Delete the phrase that begins "Note" and ends "an apartment space" at the end of Declaration Paragraph A(1).

5. Change "eighty-nine (89)" to "ninety (90)" in Declaration Paragraph D.

6. Change "$2,116,600" to "2,138,500." in Declaration Paragraph F.

7. Amend Schedule B of the Declaration to refer to a total of 90 (instead of 89) individual "apartment spaces." In addition, amend paragraph numbered 1 in Schedule B to refer to 30 (instead of 29) two bedroom apartment spaces.

8. Amend Schedule C of the Declaration to divide the individual interest in the common areas and facilities among 90 (instead of 89) units, with Unit B1, Building #4 being designated as a 2 bedroom B unit, instead of the Superintendent's unit. The revised percentages are set forth in the attached Amended Schedule C.

9. Amend Schedule D of the Declaration to divide the proportionate share in profits and common expenses and the proportionate representation for voting purposes among 90 units (instead of 89) with Unit B1 being added as a 2 bedroom B unit. The revised percentages are set forth in the attached Amended Schedule D. (See Exhibit 6.) CT Page 22189

II. The Graham Case

The issue in the Graham case is whether the plaintiff has established that 36 Savin Park is a portion of the common areas and facilities of the SPCA. If the court determines that the unit is a portion of the common elements then the plaintiff will be entitled to judgment as a matter of law because the sale of any portion of the common areas and facilities requires unanimous consent of the unit owners. Mr. Graham opposes the sale. He claims that he is entitled to attorneys fees because the conduct of the SPCA has been a willful and wanton violation of the plaintiff's rights under the condominium Declaration.

36 Savin Park was one of the 89 "apartment units" or "family units" created by the recording of the Declaration for the SPCA. It is identified as Unit B-4, Building 3-B in the Declaration. Under the terms of the Declaration an "apartment unit" is not a portion of the "common areas or facilities" of the SPCA. On schedule C of the Declaration 36 Savin Park is assigned an undivided 1.0346780 ownership interest in the "common areas and facilities" of the Association. Under the express terms of the Declaration it is clear 36 Savin Park is not a portion of the common areas and facilities of the SPCA. The plaintiff, Willis Graham, cannot prevail on his argument that the express terms of the Declaration identify 36 Savin Park as a portion of the common areas or facilities of the SPCA.

While the terms of the Declaration are clear there are additional ambiguous facts as they relate to 36 Savin Park. For a long period of time the SPCA controlled and used the unit while the title to the unit was held by the developer/declarant. Title to 36 Savin Park remained in the declarant until July 31, 2003 when the declarant conveyed title to 36 Savin Park by a quitclaim deed to the SPCA.

The evidence further shows that after the SPCA was formed in October of 1970, the superintendent of the complex resided in 36 Savin Park. Approximately one year later the Association terminated the superintendent's position and contracted out for maintenance services. Despite the lack of title, the SPCA continuously leased 36 Savin Park and the rents were paid into the common funds of the Association. In 1972 there was a proposal to amend the Declaration to designate 36 Savin Park as the "Superintendent's Apartment" and to incorporate it into the common areas and facilities of the SPCA. The proposed amendment failed. Although during this period time the 36 Savin Park was informally known as the "superintendent's apartment" the unit owners did not unanimously incorporate it into the common areas and facilities. The import of this effort is two fold. First it establishes that the SPCA was aware 36 Savin Park was identified as an apartment unit and not a portion of the common areas and facilities of the SPCA. Second, the proposal indicates that the unit owners considered but never acted to amend the Declaration and add 36 Savin Park to the common areas and facilities of the Association.

The plaintiff Graham argues that since the SPCA has rented out the unit and used the rental proceeds for the benefit of the association that the SPCA has recognized the unit as a portion of the common areas and facilities of the Association. There is however, no prohibition in the Declaration or Bylaws that would prohibit the SPCA from owning a unit. It is conceivable that the SPCA could acquire title to a unit by means of a foreclosure of a unit for failure to pay common charges and fees. Such a unit would not become a portion of the common areas and facilities as those are defined in the Declaration. Such a unit would be an asset of the SPCA that could be used for the benefit of all unit owners, including the sale of the same. The mere fact that the rental proceeds were put into the SPCA's accounts cannot change its status from a declared unit into a portion of the common areas and facilities. The plaintiff has not met his burden of proof that 36 Savin Park has become through its usage a portion of the common areas and facilities of the SPCA.

The court finds that the defendant SPCA has not acted in a willful or wanton way when it asserted its right to sell 36 Savin Park based upon the majority vote of the unit owners. It acted under a claim of right based upon the express language of the Declaration.

The court denies the plaintiff Willis Graham's claims for injunctive relief and attorneys fees. Judgment may enter in favor of the defendant. This judgment may enter with costs.