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Sanborn v. 428 Lafayette, LLC

Supreme Court of New Hampshire

February 18, 2016

KELLY SANBORN, TRUSTEE OF THE 428 LAFAYETTE, LLC REALTY TRUST & a.
v.
428 LAFAYETTE, LLC & a. ANDREW COTRUPI
v.
428 LAFAYETTE, LLC & a.

Argued: November 10, 2015.

Rockingham

Keane & Macdonald, P.C., of Portsmouth (Douglas W. Macdonald on the brief and orally), for the plaintiffs.

Shaines & McEachern, PA, of Portsmouth (Paul McEachern and Jacob Marvelley on the brief, and Mr. McEachern orally), for the defendants.

Andrew Cotrupi, for himself, by brief and orally.

CONBOY, J.

This appeal arises out of two consolidated actions brought by the plaintiffs, Kelly Sanborn, Trustee of the 428 Lafayette, LLC Realty Trust, Donald and Rosemarie Folk, Heather Hancock, and Andrew Cotrupi, against the defendants, 428 Lafayette, LLC and John Roberge, relating to their respective ownership of condominium units at Village Square of Hampton Condominium (Condominium). The defendants appeal rulings of the Superior Court (Anderson, J.) that: (1) Village Square of Hampton Condominium Association (Association) is governed by RSA chapter 292 (2010 & Supp. 2015), entitled "Voluntary Corporations and Associations" (hereinafter Voluntary Corporations Act), rather than RSA chapter 356-B (2009 & Supp. 2015), the "Condominium Act"; and (2) Cotrupi has the right to use certain commercial parking spaces at the Condominium. We affirm in part, vacate in part, and remand.

I. Background

The trial court found, or the record supports, the following facts. The Condominium was created on August 11, 2006, pursuant to a declaration, which was recorded in the Rockingham County Registry of Deeds. The Condominium is a fourteen-unit building consisting of twelve residential units and two commercial units.

The declaration provides that fourteen of the parking spaces on the condominium property shall be commercial parking spaces shared by the owners of the two commercial condominium units. In 2007, Cotrupi purchased one of the commercial units. Cotrupi's warranty deed states that his unit "is conveyed with the benefit of and subject to the Declaration." The deed also conveyed to Cotrupi "the exclusive right to use" six of the commercial parking spaces.

The Condominium's bylaws were recorded on the same date as was the declaration. The bylaws vest "[t]he government of the condominium" in the Association and provide that "[a]ll [o]wners of [u]nits in the condominium shall constitute the Association." The bylaws state that: "Each Unit shall be entitled to one vote." They also state that they "are adopted pursuant to" and "are intended to comply with" the Condominium Act. The bylaws further provide that: "The Association may be incorporated as a New Hampshire voluntary corporation and these By-laws shall serve as the By-laws of said corporation." In February 2007, the Association incorporated as a nonprofit corporation pursuant to the Voluntary Corporations Act.

In 2010, Roberge, through 428 Lafayette, LLC, purchased seven of the condominium units - six residential units and the remaining commercial unit. Almost immediately after Roberge purchased his units, other unit owners began complaining that he was violating the Association's bylaws. Disputes arose concerning his use of his commercial unit, as well as over parking and maintenance issues.

Roberge's mother also owns two of the residential condominium units. She has historically given her voting proxies to Roberge, with the result that he had nine of the fourteen votes at Association meetings. In 2011, Roberge began serving as the Association's president.

In August 2013, the plaintiffs, condominium unit owners, brought this action against the defendants, seeking, among other things, various forms of injunctive relief, including: (1) "the appointment of a custodian or receiver of the Association for the duration of [the] litigation"; (2) the removal of Roberge as the president of the Association; and (3) certain limitations on Roberge's voting rights. Cotrupi also individually filed an action against the defendants relating ...


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