Opinion
No. CV-07-5003218-S
December 16, 2009
MEMORANDUM OF DECISION
PROCEDURAL BACKGROUND
This vigorously contested condominium matter is a two-count action brought by the plaintiff, Stonington Landing Condominium Association, Inc. (Hereafter the "Association") on March 27, 2007 seeking injunctive relief in Count One and the foreclosure of a lien imposed by the Association in Count Two. The Association is seeking relief relating to its claim that Common Elements were altered by the Defendants, Chris J. Totolis and Karen Gardner, (hereafter "Defendants") without Board approval. The Amended Complaint dated October 31, 2007 is the operative Complaint. In that complaint the plaintiff relies upon claimed violation of only specific portions of three rules contained in the condominium documents: (1) Declaration, Article IX, Section 4; (2) By-Laws Section 8.6 and (3) Rules and Regulations, Section 4.
Defendants filed an Answer and Special Defenses on December 6, 2007. The six special defenses raise several issues related to compliance with alleged statutory requirements, an alleged approval of the modifications and an alleged variance between the By-Laws and the Declaration. Thereafter, following various interlocutor pleadings, the matter was tried to the court on October 21, 2009, at which time the Association and the Defendants appeared by counsel, presented evidence and advanced arguments in furtherance of their respective claims. Defendant Mortgage Electronic Recording System, Inc. ("MERS") did not attend the trial; however, Plaintiff and MERS filed a Stipulation on October 26, 2009 regarding the setting of law days and the amount of the Plaintiff's priority lien if judgment enters for the Plaintiff.
The court bifurcated the issues so that another hearing will be required to deal with the foreclosure matter if the plaintiff prevails with respect to that aspect of the case.
FACTUAL BACKGROUND
From the evidence produced at trial and the reasonable and logical inferences from the evidence and taking into account the court's evaluation of the credibility of the witnesses the following finding are made.
The "association" is an association of Unit Owners of Stonington Landing, a common ownership community created by a Declaration of Condominium by Stonington Landing Company, Inc., dated December 18, 1981 and recorded in Volume 233 at page 485 of the Stonington, Connecticut Land Records (hereafter "the Declaration"). Meyers Northeast is a property management firm engaged by the association to provide management services. That company employed property managers from time to time who were authorized representatives of the association in dealings with unit owners.
Mr. Totolis took title to his Unit 3, Coveside Lane, by Warranty Deed dated September 28, 2005 recorded in Volume 588 at Page 449 of the Stonington Land Records. This deed (Plaintiff's Exhibit A) clearly indicated that the unit being purchased was ". . . subject to the condominium form of ownership . . ." Mr. Totolis entered into a Mortgage on the property on the same date, which was later assigned to MERS. Thereafter, on May 3, 2006, Mr. Totolis filed a Quitclaim Deed, adding Ms. Gardner to the title. Both the Warranty Deed to Mr. Totolis, and the Quitclaim Deed executed by him, note that a more particular description of the Unit and Common Elements is contained in the Declaration, and provide the volume and page in the land records where it can be found. Also those deeds both note that the premises are subject to this and any other easements as of record that may appear. Defendants' property had a value of at $350,000.00 on July 13, 2009, and also on October 20, 2009.
In an unrelated matter, on October 3, 2005, Mr. Totolis sought permission of the association to undertake an addition to his garage. Ten days later, on October 13, 2005, the association indicated that the Board of Directors granted provisional approval for his proposed modification, indicating that the Board was only concerned with the structural integrity of the Common Elements, not the interior. Specifically the letter from Mr. Stern, the property manager, said: "How you choose to utilize the interior space of your garage is your sole concern." (Defendant's Exh. 27.) At that occasion the property manager took care of obtaining the approval of the board of directors for Mr. Totolis. After the approval was received for the garage Mr. Totolis obtained a town building permit and did that particular renovation. Mr. Totolis based his subsequent dealings with the Board of Directors upon his interpretation of the events of this earlier transaction.
On September 6, 1995, Mr. Totolis' Unit's flood designation, along with many others in Stonington Landing, was changed from an "A" Flood Zone to a "B" Flood Zone. However, it was noted in the minutes of the Board of Directors meeting of November 18, 2006, that Mr. Totolis's unit was no longer in a flood zone. These flood zone designations were directly related to the board of directors requirements for "flood proofing" his new window as discussed below.
In April or May of 2006, without notifying the Association, Mr. Totolis began work in his basement, which involved, among other things, altering the floor and a window in an exterior wall which were Common Elements. The Board sent its facilities manager to inspect the ongoing work. He was permitted access to the unit by Mr. Totolis and given an opportunity to inspect and photograph the ongoing construction.
On May 23, 2006, Josh Parsons, Property Manager, and a duly authorized representative of the association, instructed the defendants to cease work until they received written approval from the Board. Parsons said that if approval was granted Mr. Totolis would have to sign a hold harmless agreement to indemnify the Association. (Plaintiff's Ex. J.)
Thereafter, Parsons inspected Mr. Totolis' Unit, taking photographs of the renovations. Following the inspection Mr. Totolis emailed Mr. Parsons, indicating he had applied for a building permit from the Town of Stonington and requesting Board approval for the modifications. The following day Mr. Parsons and Mr. Totolis emailed back and forth about his application for board approval. Mr. Totolis obtained a building permit from the town on June 7, 2006. There was no complaint by the Board of Directors of the Association as to the quality of the actual work which was done in the renovation by Mr. Totolis.
There was no credible evidence that the structural integrity of the building or Common Elements was compromised by anything done by Mr. Totolis.
Sometime thereafter Mr. Parsons wrote to Mr. Totolis, (Notice of Hearing) indicating that the Board would conduct a hearing on August 7, 2006, about his violations of the Declaration, Bylaws and Rules and Regulations, and inviting him to attend the hearing. That notice set forth the alleged failure to comply with several "governing documents" as the basis for the proposed fine and litigation. Included in this listing were two items relating to the increase in the cost of insurance. No increase in the cost of the association's insurance has been established in this case. The portion of the By-Law referred to was a portion only of Section 8.6 which was quoted as saying: "No Unit owner shall make any structural addition, alteration or improvement in or to his unit . . . without the prior written consent of the Board of Directors." Reference was also made to the applicable Rules and Regulations, Section 12, which was quoted as saying: "Alteration of Unit exteriors in any way requires written approval of the Board of Directors. The Unit owner must execute the Indemnity Agreement and Independent Contractor Hold Harmless Agreement to secure such permission." No mention was made in that notice about the terms of the "Declaration". Article IX, Section 4 of the Declaration, recorded at volume 233 page 493 of the Stonington land records provides: "Nothing shall be done or kept in any Unit or the Common Elements which will increase the rate of insurance on the building or the contents thereof without the prior written consent of the Board of Directors . . ."
Mr. Totolis could not attend the hearing so the Board rescheduled the meeting to September 16, 2006. Mr. Totolis and Ms. Gardner both attended the meeting at which the Board instructed Mr. Totolis to restore the Common Element wall or remedy it within 90 days.
Following the meeting Mr. Totolis was informed on September 19, 2009 of the Board's decision. The Board, in the minutes of the meeting (Plaintiff's Exh. O), set forth 3 requirements for Mr. Totolis: (1) Replace foundation wall or flood-proof opening to original condition, to be certified by a licensed engineer, at owner's expense; (2) take responsibility for any increase in flood or liability insurance resulting from the modification, and (3) provide the association with a hold harmless agreement. Parsons expanded somewhat on those requirements in his letter to Mr. Totolis of September 19, 2006 (Plaintiff's Exh. P). At that point there was a negotiation ongoing by which the completed work could gain approval of the Board of Directors.
The Board of Directors was willing to allow Mr. Totolis to keep the modifications in place if only he provided a certification as to "flood proofing" from a "licensed engineer." Copies of drawings or plans were forwarded to the Board. Mr. Totolis had been told at an earlier time that if he obtained approval he would be required to submit a hold harmless agreement. (Plaintiff's Exh. J.) Mr. Totolis did in fact on October 2, 2006, sign a hold harmless agreement and returned it to the board's representative. This signed hold harmless agreement was not exactly the same language as the one Parsons suggested. The agreement was, however, accepted by the board and not returned for changes or additional signatures. In addition to accepting the hold harmless agreement the board of directors caused the same to be recorded in the Stonington, Connecticut town hall records. There was no increase in the cost of insurance occasioned by the building modifications. No certification by a licensed engineer was provided to the Association by Mr. Totolis but the credible evidence is that the window installed at the time of the renovations was "flood-proofed" when installed. At no time did the association send a representative to determine the status of the flood-proofing requirement. Nevertheless, on January 9, 2007, Mr. Totolis was informed that he had not met the Board's requirements.
On February 23, 2007 Attorney Berger on behalf of the Board, informed Mr. Totolis that a fine would be imposed on March 5, 2007 if the conditions previously imposed were not completed and that the Board could institute legal action against him. As with the Notice of Hearing provided by Parsons, this letter also set forth the same alleged violations by specific reference to particular language in the "governing documents."
Mr. Totolis was given a certificate of occupancy by the Building Official of the Town of Stonington on December 17, 2008 after a final inspection on December 15, 2008.
CLAIMS OF THE PARTIES Plaintiff's Claims
In Count One of the Amended Complaint the Plaintiff alleged that the Defendants converted their basement and altered Common Elements adjacent to Unit 3, in violation of certain specific provisions of the Declaration, Bylaws and Rules and Regulations, and sought injunctive relief to remedy this alteration. The Prayer for Relief specifically sought an injunction requiring restoration of the foundation, Common Elements and removal of all work done in the Unit, along with such other further equitable relief as might be required. In its brief the plaintiff claimed to have proven that the defendants have violated Declaration Article IX, Section 8 relating to the impairment of "structural integrity" or any change to the color, design or materials of any exterior and/or By-Law Article VII, Section 8.6, prohibiting "structural additions, alterations or improvements" without prior board approval. The plaintiff also claims the defendants violated a different part of Section 8.6 of the By-Laws not alleged in the complaint or mentioned as violations in the Notice of Hearing or the Attorney's demand letter. That portion of Section 8.6 deals with Common Element alterations whether "structural" or not. The plaintiff also alleges the applicability of various other by-laws relating to the imposition of fines and liens under the circumstances.
Count two of the complaint requests the foreclosure of a lien filed on the land records to protect the collection of the fines and attorneys fees claimed. In its brief the plaintiff sets forth various statutory authority for the same.
Defendant's Claims
The defendants' briefed several claims. First, the defendant claims that the plaintiff is limited as to the claimed violations it may raise by the specific allegations of the complaint. This limitation, it is claimed, would limit the plaintiffs claim to a violation of either (1) Declaration, Art. IX, Sec. 4, or (2) A portion of By-laws Sec. 8.6 or (3) Rules and Regulations, Sec. 4. The defendants claim that both 1 and 3, above, relate only to situations where insurance costs are increased and that there is no proof of that in this case. This, then, it is claimed, leaves only the specifically alleged part of By-Law Section 8.6. The defendants claim that this by-law conflicts with Declaration, Art. IX, Sect. 4 by being more restrictive and is therefore not enforceable. The defendants claim that "structural integrity" is not involved.
The defendants' next claim is that the evidence shows the association did in fact consent to the improvements when it accepted the Hold Harmless Agreement at its meeting on October 23, 2006. (Defendants' Exh. 37.)
The defendants also claim the fine imposed has not been shown to be " reasonable" and that it is the plaintiff's responsibility to prove that under Connecticut General Statutes (C.G.S.). Sec 47-244(11).
LAW
The plaintiff has the burden of proof with respect to the allegations of the complaint. Northrop v. Allstate Insurance Co., 247 Conn. 242 (1998). The burden of proving the special defenses lies with the defendants. Hernandez v. Dawson, 109 Conn.App. 639 (2008).
Conn. Prac. Book § 11-21 provides: "Motions for attorneys fees shall be filed with the trial court within thirty days following the date on which the final judgment of the trial court was rendered."
Conn. Prac. Book. § 10-1 provides: "Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies . . ." See also C.G.S. § 52-91.
"While our courts have followed a liberal policy in passing upon claims of variance between pleading and proof, it is still the law that the allegations of the complaint provide the measure of recovery." Buol Machine Co. v. Buckens, 146 Conn. 639, 642 (1959) (citations omitted).
"It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of [its] complaint." (Citations omitted.) Michalski v. Hinz, 100 Conn.App. 389, 393 (2007).
A condominium association is permitted to obtain a court injunction to enforce its Declaration, Bylaws and rules and regulations including against unit owners. C.G.S. § 47-75, C.G.S. § 47-80(a) and C.G.S. § 47-278. Plaintiff bears the burden of showing a violation of its Declaration and Bylaws and Rules and Regulations, and that an injunction to enforce these would not be inequitable. Manley v. Pfeiffer, 176 Conn. 540, 544 (1979) (citations omitted). This must be shown by a preponderance of the evidence. Host Am. Corp. v. Ramsey, 107 Conn.App. 849, 860, cert. denied, 289 Conn. 904 (2008).
"Condominium unit owners comprise a little democratic sub society of necessity more restrictive as it pertains to [the] use of condominium property than may be existent outside the condominium organization." Weldy v. Northbrook Condo. Ass'n., Inc., 279 Conn. 728, 738 (2006).
C.G.S. § 47-75(a), permits a condominium association or any aggrieved unit owner to seek an injunction against any other unit owner who does not "comply with this chapter, the condominium instruments, and the rules and regulations adopted pursuant thereto." It also requires each unit owner to "comply with this chapter, the condominium instruments, and the rules and regulations adopted pursuant thereto."
Condominium Association's Declaration, Bylaws and Rules and Regulations are the equivalent to restrictive covenants which are enforceable by injunction without the need to prove irreparable harm. Manley v. Pfeiffer, supra, 176 Conn. at 544, see also Hartford Electric Light Co. v. Levitz, 173 Conn. 15, 20-22 (1977). "When presented with a violation of a restrictive covenant, the court is obligated to enforce the covenant unless the defendant can show that enforcement would be inequitable. When one has gone on wrongfully in a willful invasion of another's rights in real property, the latter is entitled to have his property restored to its original condition even though the wrongdoer would thereby suffer great loss." Gino's Pizza of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 139 (1984).
However, the granting of injunctive relief is not mandatory. It remains a matter within the sound discretion of the court. Emhart Industries, Inc. v. Amalgamated Local Union 376, 190 Conn. 371 (1983). Moreover, in exercising this discretion the court must balance the competing interests of the parties. Any relief granted must be "compatible with the equities of the case" so as not to be greatly disproportionate to the injury sustained by the complaining party. Dukes v. Durante, 192 Conn. 207 (1984).
C.G.S. Sec. 47-222 deals with the construction and validity of condominium declarations and by-laws. It says in subsection c: "In the event of a conflict between the provisions of the declaration and the by-laws, the declaration prevails . . ." See BRT Property CR. v. Willow Springs Condo., No. CV 940065716 (Oct. 9, 1996), 1996 Ct.Sup. 6359, 17 Conn. L. Rptr. 670, Judicial District of Litchfield.
Common Elements are defined in the statutes as "all portions of the condominium other than the units." C.G.S. § 47-68(e).
C.G.S. § 47-244(a)(11) permits an association to "levy reasonable fines for violations of its declaration, bylaws [and] rules and regulations." These fines create a statutory lien pursuant to C.G.S. § 47-258(a) which "may be foreclosed in like manner as a mortgage on real property" pursuant to C.G.S. § 47-258(j), see Hudson House Condominium Ass'n. v. Brooks, 223 Conn. 610, 614 (1992). The Plaintiff has the burden of proving the foreclosure of its lien by a preponderance of the evidence. Rollar Constr. Demolition, Inc. v. Granite Rock Assocs., LLC, 94 Conn.App. 125, 133 (2006).
Attorneys fees and costs are part of the priority lien, see Hudson House Condominium Ass'n. v. Brooks, 223 Conn. 610, 617 (1992).
"The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." City v. Dana Investment Corporation, 249 Conn. 1, 17, (1999); see also Conn. Prac. Book § 10-50. The burden of pleading and proving a special defense rests with the party asserting it. Branch v. Occhionero, 239 Conn. 199, 205-06 (1996).
CONCLUSION
Applying the law to the facts found, the court first considers the first count of the plaintiff's complaint which requests injunctive relief. This calls into play the equitable powers of the court requiring a balancing of the equities of the parties under the particular circumstances of this case.
The facts here are very distinctive. This is not a case where a unit owner simply ignores the condominium rules. Here the unit owner defendants were actually involved in attempting to meet the board of directors' requirements, even though somewhat late. An application for approval was made. There were negotiations. E-mails were exchanged. Plans were provided. Inspections were made. Photographs were taken. Hold harmless agreements provided and recorded at town hall. Meetings were attended. It appears that of all the requirements the board of directors specified, the one left to be accomplished was to provide a certificate of a licensed engineer as to the "flood-proof" situation. The alterations complained of had been already accomplished and were in place. The board did not complain about the quality of the work even after an inspection. This is not a case where the only reasonable course of action is to eliminate the alterations. The board of directors actually was willing, according to the minutes of their meetings, to grant permission to keep the changes if only the defendants did what they asked in the time limit they set. There is no indication here that an engineer's certificate could not be obtained. The proof is only that it was not obtained within the time limit of the plaintiff association.
Certainly, in an appropriate circumstance, the plaintiff has the right to injunctive relief in connection with the enforcement of their rules and regulations. But, this is intended to be a court of equity. Here, balancing the equities of the parties, this is not that situation. The plaintiff's request for injunctive relief is denied and the issues are found for the defendants on the first count of the complaint.
Because of this conclusion with respect to the first count, the remaining claims of the defendant as to that count need not be considered.
This does not necessarily, however, dispose of the issues raised by the second count or that the association did not have the authority to impose a fine for the alleged failure to comply with all of the requirements of the rules. There remains to be considered the defendants special defenses as to that matter.
The plaintiff in the Second Count requests a foreclosure of the lien related to the $25 per day fine imposed by the board of directors together with costs and attorneys fees. The statute provides that such a lien may be foreclosed in like manner as a mortgage.
An action of foreclosure is peculiarly an equitable action where the court can consider all relevant circumstances to ensure that complete justice is done. McKeever v. Fiore, 78 Conn.App. 783, 788 (2003).
"Where the plaintiff's conduct is inequitable, a court may withhold foreclosure on equitable considerations and principles." (Citations omitted) LaSalle National Bank v. Shook, 67 Conn.App. 93, 96-97 (2001).
"Equitable remedies are not bound by formula but are molded to the needs of justice." Montanaro Bros. Builders, Inc. v. Snow, 4 Conn.App. 46, 54 (1985).
Valid defenses to the foreclosure of a mortgage must go to the making, validity or enforcement of the note or mortgage. LaSalle National Bank v. Shook, 67 Conn.App. 93 (2001). The court will apply the same rules to the defenses raised in this foreclosure proceeding.
The special defenses raised by the defendant have the effect of challenging the validity of the lien because of the alleged illegality of the process by which it was determined appropriate to impose the fine in the first place.
In this regard the defendants in their brief raise the following claims: (1) the fine imposed was not "reasonable" as required by law, (2) By-law section 8.6 is invalid because it is more restrictive than the provisions of the Declaration which takes precedence, (3) The plaintiff cannot rely for the claimed violation on other parts of the governing documents which were not specifically alleged in the complaint, (4) The specific part of By-law section 8.6 for which notice was provided required evidence of impairment of "structural integrity" which was lacking in the proof, and (5) The board of directors by their acceptance of the hold harmless agreement in fact consented to the modifications.
The defendants, having pled the special defenses, has the burden of proof with respect to the same by a preponderance of the evidence. Branch v. Occhionero, 239 Conn. 199 (1996).
The court finds that the defendants have satisfied their burden with respect to four of the special defenses, each independent of the others, and each sufficient to defeat the plaintiff's claim for a foreclosure of the lien.
First, the many communications of the Board of Directors to Mr. Totolis were at best ambiguous as it relates to the function of a hold harmless agreement in this situation. His first dealings with the Board as to his garage suggested that the board was not concerned with what he did within his unit. A later letter dealing with this modification told him specifically that ". . . should you receive approval, you will also be required to sign a hold harmless agreement . . ." (Plaintiff's Exh. J.) Later, during the various negotiations, Mr. Totolis was in fact provided with a hold harmless agreement by the board's representative. He returned a slightly modified hold harmless agreement which was in fact accepted by the board. Evidence of this acceptance included the board's having it recorded in the town records. Such conduct by the plaintiff association must reasonably be interpreted as the granting of approval. The plaintiffs claim that there needed to be a meeting of the minds to accomplish an approval is simply not persuasive.
Second, there is no credible evidence that there are any "structural" modifications included with the work done by the defendants. The evidence is that they put a hole in the basement floor for a drain pipe and enlarged a window opening. The portion of Section 8.6 of the by-laws concerning which the defendants were given notice of hearing and which was specifically alleged in the complaint deals only with "structural" matters. Even if there are other portions of the by-laws or regulations which may have been brought into play here, the plaintiffs are limited to the allegations of their complaint. Also in order for the fines to have been properly imposed, a notice and hearing would have had to be provided. As indicated above, the notice of hearing was limited to the portion of the by-laws that deal only with "structural" matters. Those aspects of the claimed violations dealing with insurance costs were not pursued by the plaintiff because there was no evidence that the cost of insurance was increased by the conduct of the defendants. The plaintiff association cites the case of Oronoque Shores Condo. Ass'n No. 1 v. Smulley, 114 Conn.App. 233 (2009), for the proposition that the notice requirement is not rigid but only a matter of fairness. That case dealt with an assessment for litigation. The unit owners attended the meeting and knew what the issues were. Here, on the contrary, the unit owner defendants, although attending the meeting (hearing), were not told about all the various rules which the plaintiff now wants the court to apply. This is not just a "mere technical deficiency" in the notice referred to by that court. This is a total absence of notice. The imposition of a fine for the violation of portions of the by-laws concerning which the defendants had no notice and hearing was invalid. Therefore, it would not be equitable to foreclose the lien with respect to the same.
Third, that portion of Section 8.6 of the By-laws which was alleged in the complaint and of which notice of hearing was provided is invalid because of the deviation between it and Article IX, § 4 of the Declaration. That article purports to limit modifications of the units by unit owners, but is limited only in that regard to alterations which would adversely affect the insurance costs. Whereas, that portion of § 8.6 of the By-Laws purports to limit all structural alterations without approval. One is clearly more restrictive than the other. The fact that they are in the same document does not alter their conflict. Connecticut General Statutes, § 47-222(c) indicates that in the event of a conflict between the declaration and the by-laws the declaration will "prevail." Thus, even if the defendants' modifications could be found to be "structural," to the extent that an alleged violation of § 8.6 of the by-laws was utilized to impose a fine against the defendants, that fine was invalid and will not be foreclosed.
Fourth, the fine of $25 per day is not "reasonable," as it is applied in this situation. This is true for two distinct reasons. One fine of $25 per day is called for in the by-laws no matter the significance of the alleged infraction of the rules. C.G.S. § 47-244(11) authorized only "reasonable" fines. "When a court is called upon to assess the validity of an action taken by a board of directors, it first determines whether the board acted within its scope of authority and second, whether the action reflects reasoned or arbitrary and capricious decision making." Beachwood Villas Condominium v. Poor, 448 So.2d 1144 (Fla.App. 1984), cited in Weldy v. Northbrook Condominium Association, Inc., 279 Conn. 728 (2006).
No definition of "reasonable" is provided by statute. In that situation the law provides that courts may look to the ordinary meaning of the words. Pagett v. Westport Precision, Inc., 82 Conn.App. 526, 538 (2004). Ballentine's Law Dictionary, Third Edition, defines "reasonable" as, among other things, "Not extreme. Not arbitrary, capricious, or confiscatory . . . What is reasonable depends upon a variety of considerations and circumstances . . ."
The analysis relating to the first count of the complaint set forth above outlines the factual situation here. Again, it should be said, that this was not a flagrant violation. There were negotiations, meetings, correspondence, plans, hold harmless agreements, town building inspector's requirements, prior dealings. The parties were almost in agreement except only for the lack of a certificate of an engineer. Then the fine was imposed. The amount was not related to an assessment of the circumstances.
The fine at the time of trial would have exceeded $23,000. And if applied, it is still accruing even at this time. There was no evidence to suggest that such a sum had any relationship to any cost or expense incurred by the plaintiff. There are suggestions in the law that where a fine is punitive rather than compensatory the court might properly consider the behavior of the parties in determining its reasonableness. See Esposito v. Esposito, 71 Conn.App. 744, 750 (2002).
Also, as regards the plaintiff's imposition of a fine, the defendants have properly argued that by imposing a fine that continues to accrue while the defendants are in the legitimate process of contesting the legality of the procedure has the effect of stifling their right to access the courts. The plaintiff has made no attempt to defer the imposition of the fine while the defendants exercised their right to contest its imposition.
Moreover, the defendants in this court have raised valid claims which mitigate against any alleged violation of the condominium documents.
Even if it were otherwise appropriate to impose some fine, the fine imposed here is found not to be "reasonable" as required by law.
In this case, giving consideration to balancing of the equities of the parties, and without condoning the actions of the defendants, the court nevertheless finds the foreclosure of the lien requested in the second count of the complaint not to be equitable, and, therefore, finds the issues for the defendant on that count.
Judgment may enter accordingly without costs to any party.