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Condominiums at Lilac Lane Unit Owners' Association v. Monument Garden, LLC

Supreme Court of New Hampshire, Strafford

June 9, 2017


          Argued: March 30, 2017

          Marcus, Errico, Emmer & Brooks, P.C., of Braintree, Massachusetts (Edmund A. Allcock and Thomas W. Aylesworth on the brief, and Mr. Allcock orally), for the plaintiff.

          Bernstein, Shur, Sawyer & Nelson, P.A., of Manchester (Roy W. Tilsley, Jr. and Michael A. Klass on the brief, and Mr. Tilsley orally), for the defendants.

          Perkins & Anctil, P.C., of Westford, Massachusetts (Robert W. Anctil and Scott Eriksen on the brief), for Community Associations Institute, as amicus curiae.

          DALIANIS, C.J.

         The plaintiff, Condominiums at Lilac Lane Unit Owners' Association (Lilac), appeals the order of the Superior Court (Houran, J.) granting summary judgment to the defendants, Monument Garden, LLC (Monument Garden) and Eastern Bank. The trial court determined that a residential development in Dover known as the Condominiums at Lilac Lane (the condominium) is not subject to the provisions of the Condominium Act (Act), RSA chapter 356-B (2009 & Supp. 2016), regulating "convertible land." We affirm.


         The following facts are undisputed. New Meadows, Inc. (New Meadows) was the original declarant of the condominium. The condominium land was initially part of a preexisting condominium development known as the Meadows at Dover. New Meadows planned to construct buildings on Meadows at Dover land, but sought to separate the new development - the condominium at issue here - from the existing development. The attorney general approved the proposed division in February 2010. See RSA 356-B:34-a, IV, V (2009).

         Shortly thereafter, New Meadows established the condominium by executing and recording a Declaration of Condominium (declaration) with the Strafford County Registry of Deeds, in accordance with the Act. See RSA 356-B:16 (2009). The declaration describes the land submitted to the condominium as:

A certain tract or parcel of land together with the buildings thereon situate on Lilac Lane in the City of Dover County of Strafford and State of New Hampshire, the same being more particularly delineated as The Condominiums at Lilac Lane on plan entitled "Revision IV to the Condominium Site Plan, Tax Map H Lot 35A, The New Meadows, Inc." prepared by MSC Civil Engineers & Land Surveyors, Inc. and to be recorded in the Strafford County Registry of Deeds . . . .

         The declaration states that the condominium "shall consist of a maximum of one hundred twenty (120) units in five buildings designated on the Plan as Buildings 12, 13, 14, 15 and 16." The declaration contains a list identifying the 120 units.

         The site plan shows two existing buildings, labeled Building 12 and Building 13, on the approximately 7.18 acres of submitted land. According to the accompanying floor plans, Building 12 was substantially completed and Building 13 was under construction. The site plan also shows three proposed buildings, labeled Building 14, Building 15, and Building 16. According to the floor plans, construction on these buildings had not yet begun. The floor plans show the twenty-four units existing, or proposed to be built, within each building for a total of 120 units. In 2012, New Meadows transferred its interests in the condominium by deed to Monument Garden. Monument Garden executed a mortgage in favor of Eastern Bank's predecessor, Centrix Bank and Trust (Centrix), in exchange for a loan to complete the purchase. Monument Garden completed construction on Building 13 in June 2013, and on Building 14 in July 2014. Monument Garden retained ownership of the units in Buildings 13 and 14.

         Lilac is an association comprised of the owners of units located within the condominium and is subject to the condominium's bylaws. The bylaws provide that "[e]ach completed Unit shall be entitled to one (1) vote" and that "[i]f the Declarant owns or holds title to one or more Units, the Declarant shall have the right at any meeting of the Association to cast the vote(s) to which such Unit(s) is entitled." The bylaws also provide that the condominium is to be managed by a five-member Board of Directors (board). Lilac votes on, among other things, the election and removal of members of the board. Displeased by the way in which the board had been managing the condominium, Monument Garden, claiming to hold the requisite 30% of the unit owners' votes, called for a special meeting to remove one of the board members.

         Lilac sued, seeking a declaratory judgment that it owns certain condominium units, that Monument Garden has no rights to further develop condominium lands, that Monument Garden lacks sufficient voting rights to control Lilac's board, and that Eastern Bank does not hold a valid note and mortgage to condominium lands. Lilac also sought damages for unjust enrichment/disgorgement, a prejudgment and lis pendens attachment, and a preliminary injunction ordering the defendants to refrain from conveying their respective interests in certain property, ordering Monument Garden to refrain from developing condominium lands and from exercising voting rights premised upon its asserted ownership of certain condominium units, and ordering Eastern Bank to refrain from exercising its claimed rights under the mortgage. The Superior Court (Temple, J.) denied Lilac's ...

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