Argued: May 5, 2016
Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on
the brief and orally), for the petitioner.
Cronin, Bisson & Zalinsky, P.C., of Manchester (Mark E.
Connelly, Daniel D. Muller, Jr. and Ashley B. Scott on the
brief, and Mr. Muller orally), for the respondent.
Gallagher, Callahan & Gartrell, P.C., of Concord (W. John
Funk and Robert J. Dietel on the brief), for Cooperative
Credit Union Association, Inc.; Mortgage Bankers and Brokers
Association of New Hampshire, Inc.; and New Hampshire Bankers
Association, as amici curiae.
petitioner, New Hampshire Housing Finance Authority (NHHFA),
appeals a decision of the Superior Court (Nicolosi,
J.) granting summary judgment in favor of the respondent,
Pinewood Estates Condominium Association (Pinewood), and
awarding attorney's fees to Pinewood. The trial court
ruled that, pursuant to Pinewood's condominium
declaration, NHHFA was responsible for paying condominium
assessments that were accrued by the previous owner of a unit
NHHFA purchased at a foreclosure sale, and that Pinewood was
not obligated to provide common services to the unit until
all assessments were paid. Because we conclude that the
Condominium Act, RSA chapter 356-B (2009 & Supp. 2015),
operates to bar Pinewood's claim for unpaid
pre-foreclosure condominium assessments, we reverse and
summary judgment record supports the following facts. In
2005, Patricia Rugg purchased a unit in Pinewood's
condominium complex in Manchester. Rugg granted a mortgage
for the unit to a local bank, and the bank subsequently
assigned the mortgage to NHHFA. Rugg died in May 2011. The
assessments on Rugg's condominium went unpaid after her
2012, Pinewood sent a letter to Rugg informing her that she
owed $1, 375 in past-due assessments and attorney's fees.
In August, Pinewood notified Rugg's estate and NHHFA, as
the first mortgagee, that the unit's common services
would be terminated in thirty days unless all the past-due
assessments were paid. See RSA 356-B:46, IX (2009).
Neither NHHFA nor Rugg's estate paid the past-due
assessments. Subsequently, Pinewood terminated the unit's
common services, including water and sewer services.
mortgage payments also went unpaid after her death. In
January 2013, NHHFA filed a Petition for Foreclosure Decree
of Sale and to Quiet Title in superior court. The court
granted the petition, and, in August, NHHFA purchased the
unit at the foreclosure sale. Shortly thereafter, Pinewood
notified NHHFA that it owed $4, 796.20, including $4, 414.75
in assessments accrued prior to the foreclosure, as well as
post-foreclosure assessments. NHHFA paid all of the
post-foreclosure assessments, but refused to pay the
then filed a petition for declaratory judgment in the
superior court, arguing that: (1) it took title to the unit
free and clear of encumbrances, including Pinewood's
claim to the pre-foreclosure assessments; and (2) Pinewood
had no authority to terminate common services to the unit
because of unpaid assessments accrued prior to the
foreclosure. The trial court granted summary judgment in
favor of Pinewood on both issues. Relying upon Section 2.3 of
the condominium declaration, which provides that "any
Owner acquiring a Unit shall be liable . . . for any prior
and outstanding assessments levied against the Unit, "
the trial court concluded that NHHFA was responsible for all
past-due assessments. The trial court also concluded that,
although NHHFA had paid all post-foreclosure assessments,
under Section 6.1(c) of the condominium declaration, Pinewood
could "terminate services until all assessments
are paid, which includes the unpaid pre-foreclosure
assessments." Because Pinewood "successfully
enforced the provisions of the Declaration, " the trial
court also awarded Pinewood its attorney's fees and costs
pursuant to RSA 356-B:15, II (Supp. 2015). This appeal
appeal, NHHFA argues that the trial court erred when it
concluded that NHHFA is liable for the pre-foreclosure
assessments. NHHFA contends that, pursuant to the Condominium
Act and the foreclosure statute, Pinewood's encumbrance
on the unit arising out of unpaid pre-foreclosure assessments
was extinguished by the foreclosure. See RSA
356-B:46 (Supp. 2015); RSA ch. 479 (2013 & Supp. 2015).
NHHFA further contends that, because it paid all
post-foreclosure assessments, Pinewood cannot lawfully
withhold common services from the unit. Pinewood counters
that the trial court correctly relied upon the provisions of
the declaration to conclude that Pinewood's claim for the
pre-foreclosure assessments was not affected by the
foreclosure sale. Pinewood also argues that, because
assessments are levied against units rather than against
individual owners, Pinewood need not restore common services
until all assessments - both pre- and post-foreclosure - are
paid. Pinewood also filed a cross-appeal.
threshold matter, Pinewood argues that NHHFA lacks standing
to appeal the trial court's decision regarding the
termination of services. "In evaluating whether a party
has standing to sue, we focus on whether the party suffered a
legal injury against which the law was designed to
protect." Libertarian Party of N.H. v. Sec'y of
State, 158 N.H. 194, 195 (2008) (quotation omitted).
Here, NHHFA has suffered a cognizable legal injury: it cannot
maintain or use the unit it purchased in foreclosure because
Pinewood has terminated basic services to the unit -
including water and sewer services - and refuses to restore
them until all past-due assessments are paid. Accordingly, we
conclude that NHHFA has standing.
address whether, pursuant to RSA 356-B:46, I(a) and RSA
479:26 (2013), NHHFA is obligated to pay condominium
assessments that accrued prior to the foreclosure. Resolving
this issue requires us to engage in statutory interpretation,
and, therefore, our review is de novo. Prof.
Fire Fighters of N.H. v. N.H. Local Gov't Ctr., 163
N.H. 613, 614 (2012). In matters of statutory interpretation,
we are the final arbiter of the intent of the legislature as
expressed in the words of the statute considered as a whole.
Olson v. Town of Grafton, 168 N.H. 563, 566 (2016).
We first look to the language of the statute itself, and, if
possible, construe that language according to its plain and
ordinary meaning. Id. "We interpret legislative
intent from the statute as written and will not consider what
the legislature might have said or add language that the
legislature did not see fit to include." Sanborn v.
428 Lafayette, LLC, 168 N.H. 582, 585 (2016) (quotation
omitted). "We interpret statutory provisions in the
context of the overall statutory scheme and not in
isolation." Id. (quotation omitted).
Condominium Act "governs all condominiums and all
condominium projects." Neumann v. Village of
Winnipesaukee Timeshare Owners' Assoc., 147 N.H.
111, 112-13 (2001). It is the enabling statutory authority
for the condominium form of property ownership in New
Hampshire. Cf. Bennett, Condominium
Homeownership in the United States: A Selected Annotated
Bibliography of Legal Sources, 103 Law Libr. J. 249, 263
(2011) ("[C]ondominium ownership is based on statutory
authority, not on common law concepts." (quotation
omitted)). We recently reaffirmed the principle that the
terms of a condominium declaration must be interpreted to be
consistent with the Condominium Act, and, if the terms of a
declaration conflict with the Act, the Act controls. See
Sanborn, 168 N.H. at 586 (explaining that
"[r]egardless of the provisions of the [condominium]
bylaws . . . the bylaws cannot negate the applicability"
of a controlling ...