Argued May 15, 2014
Ducharme Law, P.L.L.C., of Portsmouth ( Robert E. Ducharme on the brief and orally), for the petitioners.
Shaines & McEachern, PA, of Portsmouth ( Paul McEachern on the brief and orally), for the respondents.
BASSETT, J. DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.
The petitioners, Gary and Katherine Keer, appeal an order of the Superior Court ( McHugh, J.) denying their motion for enforcement of the trial court's previous orders and for a finding of contempt. The petitioners, the owners of one of the four units in a condominium, filed the motion which alleged that the respondents, Richard Holt together with the owners of other units in the condominium, had unlawfully converted common area within the condominium to limited common area. We vacate and remand.
The following facts are taken from the record or are undisputed. This case involves a four-unit condominium located on Boston Avenue in Hampton, known as the Boston Four Condominium. The condominium was created in 1989 pursuant to a " Condominium Site Plan" and " Declaration of Condominium Ownership," both of which were recorded in the Rockingham County Registry of Deeds. The site plan depicts the four units and describes them as units " 7, 7R, 9 & 9R Boston Avenue." Each unit is a free-standing residential building. The four units are arranged in a rectangle; units 7 and 9 are adjacent to one another bordering Boston Avenue, and units 7R and 9R are rear units located behind units 7 and 9 respectively. The condominium bylaws, recorded at the same time as the declaration, created the Boston Four Condominium Association to oversee the operations of the condominium property.
In addition to the residential buildings, the condominium also includes certain property around the four units that the declaration designates as either " common area" or " limited common area." Common area is property in which each unit owner has " an equal one-fourth (25%) undivided interest." The declaration provides that common area " [s]hall refer to all portions of the condominium other than the units." This includes a large portion of the outside property, walkways between units, as well as all utility lines serving the condominium. In contrast, limited common area consists of " the portion of the Common Area reserved for the exclusive use of ... one or more, but less than all, of the units." Limited common area includes " doorsteps, porches, balconies, patios, and any other apparatus designed to serve a single unit, but located outside of the boundaries thereof . ..." In addition, as to units 7, 7R, and 9R, each has its own parking space which is designated as limited common area. Each parking space is 9 feet by 18 feet, with boundaries delineated on the site plan.
The Keers purchased unit 7 in 1996. At that time, Richard and Jeannine Holt, then husband and wife, owned unit 7R. In 1997, after Richard and Jeannie Holt were divorced, Richard Holt became the sole owner of unit 7R. Since 2006, Richard Holt and his current wife, Rosanna Holt, have jointly owned unit 7R. In 1998, Richard Holt, together with Patricia Duquette, purchased unit 9R.
In the mid-2000s, the unit owners had several disagreements relating to the operation of the condominium. The issues included allocation of costs relating to the units' connection to new sewer lines, the propriety of additions Richard Holt had made to units 7R and 9R, and use of the common area. A further disagreement arose because Richard Holt and his tenants had been parking two vehicles, one behind the other, in unit 9R's designated parking space, which caused one of the vehicles to encroach onto the common area.
Pursuant to a clause in the declaration requiring the arbitration of disputes between and/or among unit owners, the parties submitted their dispute to a neutral arbitrator. The Keers and the owner of unit 9, Frederick Guthrie, alleged that Richard Holt and Duquette had committed at least eleven violations of the condominium documents. Richard Holt and Duquette asserted two cross-claims against the Keers and Guthrie. Although the arbitrator denied most of the relief requested by the Keers and Guthrie, he also issued an order prohibiting Richard Holt or his tenants from parking two vehicles in the parking space reserved for unit 9R. On the cross-claims relating to sewer connection costs, the arbitrator ordered the Keers and Guthrie to pay their share of the cost to connect their units to the sewer system.
In September 2008, Richard Holt filed a petition in superior court seeking an order confirming the arbitrator's decision. The Keers and Guthrie filed a separate action in superior court appealing the arbitrator's decision. In February 2009, the trial court consolidated the two actions, ruled that a hearing was unnecessary, and granted Richard Holt's petition to confirm the arbitrator's decision. The trial court also denied the Keers' and Guthrie's appeal, finding that it was, in essence, a disagreement with the arbitrator's factual findings, which was not a proper basis for appealing the decision.
Following a hearing regarding the enforcement of the arbitrator's decision, the trial court issued a final order in which it observed that " [t]he operation of the Boston Four Condominiums is in complete disarray," and that, given that the Keers and Guthrie disagreed with Richard Holt, who then had an ownership interest in two of the four units, " on any issue the vote is two to two." The court again confirmed the arbitrator's award and " required [all parties] to comply with its terms." The court stated that a failure to comply with the arbitrator's decision " may lead to contempt findings by the Court."
In June 2010, Guthrie sold unit 9 to Kathleen Barnicoat. In December 2010, responding to a motion brought by the Keers, the trial court ordered Richard Holt to formally mark the area around unit 9R's parking space, so that its boundaries would be clear. In April 2011, after the Keers filed a motion for contempt arguing that Richard Holt had marked unit 9R's parking space in excess of twenty feet, the court ordered Richard Holt to delineate the area of the parking space in accordance with the site plan so that it did not exceed eighteen feet.
In 2012, Richard Holt and Duquette sold unit 9R to John and Elaine Banacos. On August 28, 2012, the condominium association recorded an amendment to the declaration and bylaws (2012 amendment). This amendment changed the designation of certain condominium property from common area to limited common area, to the benefit of units 7R and 9R, and to the detriment of the remaining units. The 2012 amendment ...