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.
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.
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).
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
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 . . . .
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
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.
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.
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