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Loon Valley Homeowner's Association v. Pollock

Supreme Court of New Hampshire, Grafton

June 22, 2018


          Argued: April 12, 2018

          Wescott Law, PA, of Laconia (Paul T. Fitzgerald and Brett W. Allard on the brief, and Mr. Fitzgerald orally), for the plaintiff.

          Cleveland, Waters and Bass, P.A., of Concord (William B. Pribis on the brief and orally), for the defendants.

          HANTZ MARCONI, J.

         The plaintiff, Loon Valley Homeowner's Association (the Association), appeals an order of the Superior Court (MacLeod, J.) denying its petition to quiet title to land owned by defendant Lewis G. Pollock and the decedent, Norman Wallack, based upon a claim of adverse possession. We affirm.


         The pertinent facts follow. In 1972, Pollock and his two brothers purchased a vacation home and accompanying land in Lincoln. They conveyed the property to a trust and divided it into two lots: Lot 11, which contained the house, and Lot 7. After purchasing the property, Pollock constructed nine condominiums on Lot 11, numbering them units 1 through 9 and designating the existing house on Lot 11 as unit 10. In 1973, Pollock and his brothers incorporated the Association and conveyed Lot 11 and its improvements to it. The trial court found that Lot 7 was not conveyed to the Association because Pollock hoped to develop it in the future for commercial purposes.

         Pollock purchased unit 7, and his brothers purchased units 9 and 10. The remaining units were subsequently purchased by Pollock's law partners, clients, and friends, including Norman Wallack, who then joined the Association. The trial court found that

[p]ursuant to the Association's governing documents and the deeds by which Association property was conveyed, each member of the Association was granted individual ownership of a certain Unit and the land upon which it was directly situated, along with an "easement of use and enjoyment" for the Association's "Common Property," which consisted of all Lot 11 land and improvements but for the Units themselves and the land located directly thereunder.

(Footnote omitted.)

         In 1978, when a house and land abutting Lot 11 became available for purchase, Pollock solicited members of the Association to help purchase the property. Only Wallack agreed to collaborate with Pollock and the two men purchased the property for approximately $60, 000. The cost of updating the home, however, proved to be financially prohibitive, and the men subsequently decided to sell the property. In 1979, Pollock and Wallack sold the house and a portion of the land, collectively Lot 13, at a loss of approximately $12, 500. They retained ownership of approximately .24 acres of the land which abuts Lot 11. The .24 acres became Lot 12, which is the subject of this litigation. To delineate the property, Pollock had a fence installed that separated Lot 12 from Lot 11.

         Pollock testified at trial that he and Wallack retained Lot 12 hoping to add it to the Association's property to offset their loss. Pollock explained that after unsuccessfully seeking direct compensation from the members in exchange for adding Lot 12 to the Association, he and Wallack agreed to allow the members of the Association to use Lot 12 on the condition that the Association maintain the lot, pay the property taxes, and relocate the fence dividing Lots 11 and 12 to its current location, where it marks the approximate boundary between Lots 12 and 13. Pollock testified that the Association agreed to this arrangement, and that the arrangement was well known to the members of the Association, especially the Northfields who were "the most interested people." The parties do not contest that, since 1979, the Association has paid the property taxes and upkeep expenses for Lot 12 and that the Association relocated the fence in 1979 at its expense. The trial court found that "[c]urrently, Lot 12 is mostly a grassy lawn, apart from several trees and landscaped shrubbery that line the fence."

         William Northfield, the only original member of the Association other than Pollock to testify at trial, testified that he never discussed with Pollock or anyone else the fact that Pollock and Wallack owned Lot 12, despite admitting that he discovered in his possession a 1979 letter from Pollock to a surveyor referring to the sale of Lot 13 and the fact that Pollock and Wallack were retaining part of the land which they intended to add to the Loon Valley common land. Northfield also testified that he never questioned why the fence was relocated, despite the fact that: it moved from a distance of a few feet from his unit to a distance of approximately 80 feet, thereby increasing the alleged common property by approximately 15 percent; he learned some time in 1979 that the Association had paid to move the fence; and he understood this to mean that Lot 12 had formally become part of the Association's common property.

         Three individuals who became members of the Association after 1988 testified that they were unaware that Lot 12 was not part of the Association's common property. The trial court found that each of these individual's deeds referred to the Loon Valley site plan dated December 1973 and recorded at the Grafton County Registry of Deeds, and that the plan does not include Lot 12 within the Association's boundaries. Nonetheless, each individual testified that when they joined the Association, they assumed that the Association's common property included all land bounded by the ...

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