Opinion
CV136018375S
12-02-2015
Arabelle Rowe v. Karen Rubin
UNPUBLISHED OPINION
MEMORANDUM OF DECISION AFTER TRIAL
TAGGART D. ADAMS, JUDGE TRIAL REFEREE.
I. Background
This civil action involves a dispute over claimed ownership interests in an attic space located on the top level of a former single-family residence that is over a century old, but is now divided into two condominium units, specifically Units 9 and 10 of the One Old Church Road Townhouse Condominiums in Greenwich, Connecticut. The plaintiff Arabelle Rowe owns Unit 10, and the defendant Karen Rubin owns Unit 9. The remaining eight condominium units, specifically constructed as condominiums in four separate nearby structures, are not involved in this case.
The defendant Rubin purchased Unit 9 on February 1, 2002. The plaintiff Rowe purchased Unit 10 on May 25, 2010. The disputed attic space is on the fourth level of the building, located directly above both units, and has been used for some storage and cleaned and maintained by Rubin since her purchase of Unit 9. The attic space is accessed from Rubin's unit by a pull-down stairway. Shortly before Rowe purchased her unit, her building inspector accessed the attic space through a hatch in the ceiling of a third floor closet in Unit 10.
After her purchase of Unit 10, Rowe discovered her access to the attic space through the hatch had been blocked by a board Rubin had nailed over the opening. Having no success in gaining access to the attic space, Rowe commenced this lawsuit in 2013 against Rubin seeking such access and alleging that the defendant's act of blocking it (1) violated the Common Interest Ownership Act (CIOA) specifically, General Statutes § 47-278, (2) constituted a nuisance, (3) was negligence per se, (4) was reckless and intentional misconduct, and (5) a trespass. Dkt. Entry 100.31. Rowe seeks money damages as compensation for storage charges she has incurred resulting from lack of access to the attic space, punitive damages and attorney fees.
Rubin answered the complaint, denying liability, and filed a special defense to all counts of the complaint and a counterclaim contending she owned the attic space by virtue of adverse possession. She seeks a declaratory judgment that she is the sole owner of the attic space and an award of attorneys fees and punitive damages.
The case was tried to the court on June 24 and 25, 2015. Prior to trial counsel for both parties had prepared and filed a helpful Joint Stipulation of Facts, Dkt. Entry 135.00, now in the record as Exhibit 26. Following an efficiently conducted trial, counsel for the parties filed thorough and well written memoranda in early August 2015 reviewing the law and evidence at trial in support of their client's claims and defenses. As discussed, infra, the court requested additional briefing in October resulting in a proposed amended complaint containing a second statutory cause of action.
The disputed attic space, as described by Rubin, is located directly above Units 9 and 10 at the top of the building. It runs generally east-west under the sloped roof. At the east end there is a chimney and little natural light; at the west end there is a window, two skylights and electrical light. Tr. II, 48-49. Exhibit 12 is a photograph of the attic space looking east toward the chimney. Exhibit 14 is a photograph looking west. Exhibit N is a photograph also looking west.
References to " Tr." followed by a Roman numeral and Arabic number are to the trial transcript. " I" refers to the transcript for June 24, 2015 and " II" to the June 25, 2015 transcript. The following number refers to a page or pages of that transcript.
Because of the somewhat unique structure of the building, there is no straight line down the middle separating Units 9 and 10. Again, as described by Rubin, the dividing line is located differently on each floor and parts of Unit 10 are directly under Unit 9, and vice-versa. Tr. II, 53-54.
II. Facts
Prior to her purchase of Unit 9 in 2002, Rubin saw the property, reviewed the real estate listing indicating pull-down stair access to an attic (Ex. D), a floor plan indicating access to an attic (Ex. E) and a disclosure report from the sellers, Arne and Gun Mark, (Ex. F) indicating fire or smoke damage in the attic from an old incident. Rubin testified there was nothing in any document to alert her that she was not getting exclusive possession of the attic area or would have to share space with anyone. Tr. II, 38.
Rubin testified that after her purchase she hired an exterminator to work on the attic and also has it cleaned regularly (Tr. II, 45), testimony that was confirmed by the exterminator Robert Franco. Tr. II, 8-9. Rubin testified she was aware for some time of an air duct and bathroom vent in the attic area both of which serviced Unit 10, now owned by Rowe. Tr. II, 47. This equipment is pictured in Exhibit 15.
Rowe purchased Unit 10 from Peter Green in 2010. Prior to the purchase, Rowe's inspector, Carl Mezoff, identified and opened a hatch, located in the ceiling of a third floor closet in Unit 10, that directly accessed the subject attic space above. According to Mezoff, opening the hatch consisted of lifting with his fingertips a light weight gypsum board resting unsecured on the top of the hatch and there was nothing on top of the gypsum board. Ex. 25 (Mezoff Deposition) 18-24, 57, 58, 74. Mezoff prepared and provided Rowe with his inspection report. Tr. I, 170; Ex. 1. Pictures taken of the attic space by Mezoff during the inspection, some of which show the hatch, are found at Exhibits 13 through 17. In his inspection report Mezoff recommended several work items for the attic space including repairs to fire damaged rafters, more spacing between the wood flooring and two chimneys and installation of a " fire wall" separating the two entrances to the attic. Ex. 1, 17. A list of perceived defects identified by Mezoff was sent by Rowe's real estate agent to Green's realtor along with a request to reduce the purchase price; the lack of a fire wall was included on the list. Ex. 11. According to Rowe, Green agreed to the full suggested credit. See Tr. I, 30, 32; Ex. B (Green Deposition) 50-51.
The evidence in the record is neither complete nor entirely clear as to what occurred leading up to the time Rowe closed on her purchase of Unit 10. Rowe's realtor, Charles Magyar, testified he called Rubin to set up a time to install the firewall which he thought was an important procedure. Tr. I, 179. Both Magyar and Rubin testified that Rubin put her attorney (Herbst) on the line, but there is no evidence in the record as to what, if anything, Herbst said about Rubin's rights to the attic space or Rowe's prospective rights thereto. Tr. II, 72-74; Tr. I, 180. Rubin testified she wanted to make it clear that no one else had access to the attic and that she disputed such access. Tr. II, 74. Magyar conceded that no one told him that the attic was for the use of Unit 10. However, he emphatically denied that Rubin's attorney or anyone else told him that the attic was only for Unit 9. Tr. I, 191-92, 207. Rubin wrote a letter to Green days before Rowe closed on Unit 10 specifically requesting that Green advise Rowe that " she does not have the right to use this space [the attic]." Ex. P. In his deposition testimony Green acknowledged receiving the letter, but there is no evidence that he gave Rowe that information. Ex. B, 33.
Rubin testified that she nailed a piece of wood over the attic hatch opening from Unit 10 prior to Rowe's purchase of that unit on May 25, 2010 and conceded as much in a letter addressed to Rowe. Tr. 1171, 80-81. Ex. W. In her letter to Green, Rubin wrote:
Per our conversation tonight I will of course be happy to permanently and immediately seal the hole in the attic floor that is over one of your closets.
Ex. P.
Joseph DeLuca has been a real estate developer and general contractor for over half a century. Tr. I, 135-36. Along with three partners he developed the property at One Old Church Road in Greenwich which, at the time of purchase (about 1980) contained the single-family residence now divided into Units 9 and 10, pursuant to a subdivision into ten condominiums, and he was also the general contractor responsible for the conversion of the residence into the two units. Id., 136-37. DeLuca described the house as having a basement, three floors and an attic with the original access to the attic from the part of the house that became Unit 10 by means of a hatch. Id., 137-38. During the conversion process DeLuca, as general contractor, installed a pull-down staircase to provide access to the attic for Unit 9. Id., 138. DeLuca testified, credibly, that these stairs were not intended to replace the hatch in Unit 10. Id., 139-40. DeLuca subsequently became the owner of Unit 10 for nine years and assumed he had purchased access to the attic space, although he did not use it. Id., 143. Late in his ownership, when he realized the owners of Unit 9 (the Marks) spent their summer in Sweden, he testified that for security purposes he nailed the hatch shut from the inside of Unit 10. Id., 141-42. DeLuca testified the floor plans contained in the Declaration did not contain any drawings for the fourth floor. Id., 151.
The deeds received by the plaintiff Rowe and the defendant Rubin from their respective predecessors in title to Units 10 and 9, are not helpful in resolving the issue of rights to the fourth floor attic space. Rowe's deed from Peter Green refers to Unit 10 of the One Old Church Road Town House Condominium " together with the undivided interest in Common Area(s) appertaining thereto . . ." The unit and common area are " more fully defined, identified and described" in the " Declaration of Condominiums" recorded in Book 1252 at page 148. Ex. 2. Rubin's deed from Arne and Gun Mark is similarly worded referring to the Declaration in Book 1252 at page 148. Ex. 3. In turn, the Declaration defines a unit in Article II, Section 22 as follows:
A part of the property including one or more rooms or designated spaces located on one or more floors or a part of parts thereof and with a direct exit to a public street or highway or to Common Areas leading to such street or highway. A unit shall comprise one of the separate and numbered units which are designated in Schedule A and Schedule B.
" Common Areas" are defined as " all portions of the condominium other than the unit and items whose use is limited to the unit itself." Ex. 6, Article II, Section 6. The above referenced Section contains examples of common areas that do not mention, and are not akin to, attics. The Declaration Article II, Section 14 defines " Limited Common Areas" as Common Areas designated in this Declaration as reserved for the use of a certain unit to the exclusion of other units.
The exhibits to the Declaration referred to in both Rowe's and Rubin's deed include floor plans for the basement, first, second and third floors of Units 9 and 10, but confirming DeLuca's testimony, nothing is shown with respect to an attic space. Ex. 6 (Book 1252, pages 256-59). Betty James, who has been on the condominium board for thirty years and is now treasurer of the association (Tr. II, 136) testified that around 1998 the association had revised floor plans drawn for each unit by Bigelow Designs LLC to correct errors in the square footage calculations. Id., 137; Ex. GG. The revised floor plans for Unit 9 and Unit 10 do not include any drawings of, or square footage calculations for, attic space, although the drawing for the third floor of Unit 9 makes reference to " attic access." Ex. E; Ex. LL.
III. Discussion
A. Statutory Basis for Plaintiff's Suit
Rowe alleged a claim against Rubin pursuant to General Statues § 47-278(a) to enforce a right granted, or obligation imposed by the CIOA, General Statutes § § 47-200 et seq. In her post-trial memorandum Rubin, apparently for the first time, asserted the CIOA did not apply to this case because One Old Church Road Condominium Association was created prior to 1984 and contained only ten units. See General Statutes § 47-217; Ex. 26, PP12-13.
The court requested additional briefing on this point which was completed in early October 2015. Essentially, Rowe concedes that the CIOA may not apply and urges that the Condominium Act of 1976, General Statutes § § 47-68a et seq. (CA) be applied, specifically Section 47-75 and requested permission to amend her complaint to assert a claim under Section 47-75. A formal request by the plaintiff for such an amendment was filed on October 9, 2015 (Dkt. Entry 148.00); the defendant objected thereto, and the plaintiff replied (Dkt. Entries 150.00, 151.00).
The plaintiff's proposed amendment to her complaint seeks to add two new counts, a claim for redress pursuant to Section 47-75 and a claim of negligence per se based on a violation of the CA. The defendant bases her objection to the proposed amendment on two grounds: (1) that the new counts do not relate back and are barred by the statute of limitations, and (2) she is prejudiced by the proposed post-trial amendment. Neither argument is persuasive.
The Connecticut Supreme Court has said the inquiry whether an amended complaint relates back to the original complaint for statute of limitation purposes centers on whether the proposed amendment sets forth new causes of action and defined a cause of action as " that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief." Alswanger v. Smego, 257 Conn. 58, 64, 776 A.2d 444 (2001) [quoting Barrett v. Danbury Hospital, 232 Conn. 242, 263-64, 654 A.2d 748 (1995)]. The Alswanger court continued, " [o]ur relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objection of our statute of limitations, namely to protect parties from having to defend against stale claims." Id., 65; See generally Finkle (Estate of Eckert) v. Carroll, 315 Conn. 821, 837-40, 110 A.3d 387 (2015). In this case Rubin has been on notice since 2013 that she was being sued based on the facts and circumstances of Rowe being denied access to the attic space. That is precisely the claim being made in the proposed amended complaint. Therefore, the court finds that the new claims in the proposed amended complaint relate back to the original complaint and are not barred by the statute of limitations. Further, the court finds that the defendant is not unfairly prejudiced by the amendment. The pre-trial stipulation between the parties contains the facts essential to a claim under the CA rather than the COIA. See Ex. 26, PP12, 13. Indeed, it was the defendant, herself, who first briefed the applicability of the CA in a post-trial memorandum. The court determines the CA is applicable, and the objection to the proposed amended complaint is overruled. The court finds that Sections 47-278, a provision of COIA, and 47-75, a provision of CA, both authorize the type of relief sought by the plaintiff, and by the defendant in her counterclaim, including allowing recovery for attorneys fees.
General Statutes § 47-278 reads in pertinent part:
The evidence before the court in this case makes it very clear that the dispute between the parties respecting their ownership rights, if any, to the fourth-floor attic space above Units 9 and 10 cannot be resolved by resort to the condominium documents themselves, or the parties' deeds or chains of title. The court concludes that the recorded condominium declaration, the public offering statement and the parties' deeds shed no light on the issue at hand. Indeed, there appears to be nothing in the above documents or any other writing, that definitively evidences an ownership interest in the attic space.
Rubin contends that certain references to access to the attic space support her claims of an ownership interest. These references include the aforementioned listing for Unit 9 and a floor plan for the Unit both indicating attic access (Exhs. D, E) and the disclosure report of the Marks, the prior owners, describing the previous fire damage in the attic. Ex. F. The court agrees these materials and especially the actual physical access to the attic area from Unit 9 provided by the pull-down stairs installed during the conversion process is strong, if not irrefutable, evidence that Rubin has a possessory or ownership interest in the attic space, but this evidence is not proof that Rubin's interest is necessarily an exclusive interest. The court finds in accordance with DeLuca's testimony that the hatch access to the attic space was the building's sole entry to that space prior to conversion to condominiums, and there is no evidence to support a conclusion that the conversion eliminated that access. Indeed, DeLuca, as both the developer and the initial owner of Unit 10, believed he had rights to the attic, and Green, who had no interest in using the attic, testified that he went up to the attic on several occasions during his ownership of Unit 10 to inspect the ducts and pipes located there servicing Unit 10 although this entry was also authorized pursuant to an easement. In fact, the only barrier to Unit 10's access to the attic occurred when Rubin took steps to nail the hatch closed just before Rowe moved in.
Deluca nailed the hatch closed during his tenure in Unit 10, but this was not to block access to the attic but to block access from the attic to Unit 10. There was no evidence as to when this blockage was removed, but the next tenant, Green, did not mention it and apparently did not encounter it.
Rubin contends that an area on the third floor of Unit 10 is the attic for that unit. This area is shown on the 1998 drawings done by Bigelow Designs as " cedar closet" (Ex. LL) and apparently, and somewhat disconcertingly, described in the exhibits to the Declaration as " Open TO [?] Below." Ex. 6, p. 259. Even with a magnifying glass, the court was unable to completely decipher the area's description in the Declaration; see also Ex. FF (third floor plan for Units 9 and 10 located at book 503, page 31 which also identifies the area as " open to below"). Peter Green's deposition testimony indicated that he finished that third floor area with cedar. Ex. II. In his deposition Green referred to the third floor area as his " attic storage room" and then seemed to correct himself to call it the " third floor storage room." Ex. B, 18. DeLuca also noted he used the area on the third floor for storage. Tr. I, 145. Rowe testified she did not store much in the cedar room because it is in an area of the unit used primarily by her son when he visits. Tr. I, 112-13. Having reviewed the evidence in the record concerning the cedar room area in Unit 10 the court finds that whether the area can be, or has been, used for storage is irrelevant to determining the ownership interests of the parties to this case in the fourth floor attic area and therefore declines the defendants' invitation to find in her favor on the basis of its existence in Unit 10.
The court recognizes that there is no evidence in the record such as a floor plan, disclosure report of real estate listings, similar to what Rubin received, indicating attic access for Unit 10. Nevertheless, in light of the lack of dispositive evidence in the condominium documents or the parties' deeds regarding the status of the fourth floor attic area above Units 9 and 10 and the clear evidence that a hatch existed providing access to that space from a closet in Unit 10 from the time prior to conversion to the present, the court finds that Rowe is entitled to access to the attic space, and that space is a limited common area accruing to the benefit of both Unit 9 and Unit 10.
B. Special Defense of Adverse Possession
The defendant Rubin has asserted a special defense to the entire complaint alleging that she has sole ownership of the fourth floor attic space by virtue of the doctrine of adverse possession. The Connecticut Supreme Court has described the elements necessary to establish a claim of adverse possession: " the claimant must oust the owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his own and without the consent of the owner." O'Connor v. Larocque, 302 Conn. 562, 581, 31 A.3d 1 (2011). The burden of proof is on the party claiming adverse possession, and such claim must be supported by " clear and positive proof." Id. This burden " is sustained if the evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability they are false or do not exist." Id., 576. The above burden of proof is higher than the burden usually applied in civil cases. Id.
This court's determination that Rowe has an ownership interest in the fourth floor attic space, along with Rubin, requires that another holding in the O'Connor case be considered. There the Connecticut Supreme Court also held that in cases " involving claims by one cotenant against another . . . we apply [ ] a presumption against adverse possession . . . in view of the undivided interest held by cotenants . . . possession taken by one is ordinarily considered to be possession by all and not adverse to any cotenant." O'Connor, supra, 302 Conn. 581 (italics in original.) " [T]he presumption is based on a recognition that one cotenant's possession is not necessarily inconsistent with the title of the other" Id., 581-82. The Connecticut Supreme Court has also pointed out that use of the property does not have to be " constant" to meet the requirement of " continuous" use. Frech v. Piontkowski, 296 Conn. 43, 57, 994 A.2d 84 (2010).
With these legal tenets in mind, the court examines the evidence and arguments presented by the parties. Rubin points out that the sole users of the fourth floor attic space for more than fifteen years prior to this case have been the owners of Unit 9--the Marks and her. This argument involves what is known as " tacking" together the actions of two adverse possessors, a concept long recognized in Connecticut. Fanning v. Willcox, 3 Day 258, 259 (1808); Smith v. Chapin, 31 Conn. 530, 531 (1863). During the Marks' ownership from 1987 to 2002 (Ex. 26, PP7-8) Mrs. Mark testified that they never let anyone else use the attic and was not aware of use by anyone else. Ex. C, 24, 42. She testified she used the space for storage " very rarely, " specifically for a fur coat (which she thought might still be there) as well as a box of Christmas decorations for one year. Id., 23, 41, 43. Rubin testified she had the space regularly cleaned and exterminated and stored some patio furniture there. Tr. II, 8, 10, 126.
Rubin contends, correctly it seems to this court, that Green's several visits to the attic space during his tenure as Unit 10 owner, are not sufficient to defeat her adverse possession claim. Green never made any claims to the attic area and has specifically disclaimed any interest in ownership. Further, Rubin argues, again correctly, that Green's visits were an exercise of an easement right conferred on Green pursuant to Article XIX of the Condominium Declaration for the cables, wire and conduits in the attic area that served Unit 10.
The plaintiff Rowe makes several arguments in opposition to Rubin's adverse possession claim. First, it is contended that there is no evidence in the record as to when the Marks used the attic space to store Christmas decorations and a coat, and therefore, no evidentiary support that their use took place fifteen or more years before Rowe's purchase of Unit 10. Second, the plaintiff argues that Rubin used the attic space with Green's consent because Green did not care and had no idea who owned it. Specifically, Green testified he never thought of the attic space as his; when asked who did it belong to his response was " [w]hoever wanted it." Ex. B., 13. He also testified he did not consider the attic part of Unit 10 and later, to the same inquiry, " I have no idea . . ." Id., 14. As to Rubin's interest he stated " I didn't care. She could have it if she wanted it." Id., 17. Additionally, Rubin having found out about the hatch, asked Green's permission to close it up. Tr. II, 71 (" with his permission and closed it up").
Rowe also contends that since Rubin and the Marks thought they were the sole owners of the fourth floor attic space they did not possess that space adversely to the owners of Unit 10. In support of this argument, Rowe cites and quotes from Newell v. Woodruff, 30 Conn. 492, 498 (1862):
actual intent implies actual knowledge, and there can be no wrongful dispossession or wrongful exclusion, no adverse intent and adverse holding, where one is in the enjoyment of that which he honestly supposes is his, and has no knowledge that any other person has, or claims to have, a right to participate in the possession of it.
Rubin is steadfast in claiming ownership. She testified that she had the attic space exterminated and cleaned regularly since " I've owned it." Tr. II, 45. She " thought it [the attic] was part of my unit. I thought it was mine and have treated it that way." Id., 46. When she learned of the existence of the hatch, Rubin testified she did a " fact check, because I thought I owned the attic . . . My reality was that I owned the attic, but I wanted to make sure that I wasn't nuts, " and therefore, called her lawyer. Id., 68 Further, in her letter to Peter Green, Rubin said she was convinced that Unit 10 " carries no right to use the [attic] space." Ex. P. Mrs. Mark thought Unit 10 had its " own attic." Ex. C, 42.
Lower courts in Connecticut have noted and applied the rule established by Newell . In Diamond v. Boynton, 38 Conn.Supp. 616, 458 A.2d 18 (1983) the Appellate Session of the Superior Court held, on the basis of Newell, that a defendant's argument that they acquired an interest in real property by adverse possession was unavailing because the defendants " thought they owned the entire property." Id., 619; see also Helming v. Norris, Superior Court, judicial district of New Haven at Meriden, CV 0002715778 (August 22, 2005, Arnold, J.) (quoting Newell 's holding that one who believes himself to be owner of the land does not have the requisite intent for adverse possession).
More importantly, a divided Connecticut Supreme Court has recently reiterated with approval the language of Newell quoted above and held, as a matter of law, that a plaintiff who believed she had acquired full title to property in 1980, and did not know otherwise until 1987, did " not have the requisite intent to wrongfully exclude the defendant from the lot before 1987 because she believed until that time she was its sole and exclusive owner." O'Connor v. Larocque, supra, 302 Conn. 596.
The footnote to the above sentence states " we thus disagree with the dissent, which rejects Newell out of hand . . ."
The court also finds that Rubin did not provide clear and convincing evidence that either she or the Marks acted in such a fashion as to provide the " clear and unmistakable" notice to the owners of Unit 10 that the owners of Unit 9 were claiming exclusive and sole possession of the attic space. O'Connor v. Larocque, supra, 302 Conn. 599. The only evidence in this case meeting the definition adopted by the Connecticut Supreme Court of " some hostile act, conduct or declaration on the part of the possessor amounting to a repudiation of [the] cotenant rights and an assertion of exclusive title in the possessor of which the cotenants have knowledge or notice" O'Connor, supra, 302 Conn. 583 (emphasis in original); is Rubin's letter and possibly the telephone call to Peter Green shortly before Rowe's purchase of Unit 10. Ex. P; Tr., 1162. These actions took place over the course of twenty-four hours and are not adequate to support an adverse possession claim lasting over fifteen years against a cotenant. There is no evidence that the Marks, who owned Unit 9 until February 2002, took any action that could be interpreted as hostile to, or a repudiation of, the rights of the owners of Unit 10 prior to Rowe, namely DeLuca, who claimed an ownership interest in the attic space until 1994 and Green, who owned the unit until 2010, and who simply did not care about the space. The evidence that the Marks stored (and perhaps left or forgot) a fur coat in the space along with Christmas decorations is not sufficient to meet the O'Connor standard. Based on the foregoing, the court rejects the defendant's special defense and counterclaim of ownership by adverse possession.
C. Plaintiff's Other Claims for Relief
In the second count of her amended complaint Rowe asserts a cause of action of private nuisance. For such a claim she must show that Rubin's conduct was " the proximate cause of an unreasonable interference with the plaintiff's use and enjoyment of his or her property, " and such interference may be intentional or the result of negligence. Ugrin v. Town of Cheshire, 307 Conn. 364, 376, 54 A.3d 532 (2012) [quoting from and citing Pestey v. Cushman, 259 Conn. 345, 361, 788 A.2d 496 (2002)]. " Unreasonable" in this context has been defined as " substantial." Pestey v. Cushman, supra, 259 Conn. at 361 (the question is " whether the interference is beyond that which the plaintiff should bear, under all the circumstances of the particular case"). The court finds, on the facts of this case, that Rubin's actions in blocking any access to the attic space from Unit 10 to be a substantial interference with Rowe's rights, and therefore a private nuisance.
In her fifth count the plaintiff alleges a claim of trespass by the defendant. This court has found that the plaintiff has a possessory interest in the attic space jointly with the defendant; therefore it is not exclusive possession. The Connecticut Appellate Court has discussed the difference between nuisance claims and trespass claims concluding that " recent case law treats trespass cases as involving acts that interfere with a plaintiff's exclusive possession of real property and nuisance cases as involving acts interfering with a plaintiff's use and enjoyment of real property." Boyne v. Town of Glastonbury, 110 Conn.App. 591, 599-600, 955 A.2d 645, cert. denied 289 Conn. 947, 959 A.2d 1011 (2008). That distinction is applicable here, and the plaintiff's claim of trespass is dismissed.
The third count of Rowe's initial complaint alleged a claim of negligence per se based on Rubin's alleged violations of provisions of CIOA, General Statutes, § § 47-200 et seq. Specifically, it is alleged that Rubin violated a duty of good faith established by Section 47-211 and interfered with Rowe's rights to the attic space in violation of Section 47-235. In contrast, Rowe's post-trial papers focus only on a purported violation of COIA Section 47-278. The amended complaint includes a negligence per se claim based on Section 47-75 which, as noted above, provides for the same type of remedy under the Condominium Act. The court will analyze this claim as presented in the amended complaint.
Section 47-211: " Every contract or duty governed by this chapter imposes an obligation of good faith in its performance or enforcement."
" Negligence per se operates to engraft a particular legislative standard onto the general standard of care imposed by traditional tort law principles, i.e. that standard of care to which an ordinary prudent person would conform his conduct . . . [To establish a claim of negligence per se it is not necessary to prove that] " a defendant acted as an ordinarily prudent person would have acted under the circumstances . . . [but prove] whether the relevant statute or regulation has been violated. If it has, the defendant was negligent as a matter of law" Wendland v. Ridgefield Construction Services, Inc., 184 Conn. 173, 178, 439 A.2d 954 (1981) (citation omitted).
Section 47-75 states in pertinent part that " [e]ach unit owner . . . shall comply with this chapter, the condominium instruments and the rules and regulations adopted thereto. Failure to so comply shall be ground for an action to recover damages . . ." The plaintiff contends that this statute provides the statutory duty of care imposed on the defendant sufficient for a successful claim of negligence per se .
Recognizing that this issue poses a close question, the court disagrees with the plaintiff. The above statute provides, and has already been utilized by the plaintiff as, the basis for a claim closer in nature to breach of contract than to a negligence claim. Arguably, Section 47-75 sets a standard of conduct, but it is not a standard of due care generally employed in negligence cases. For instance it is not a building code specification applicable to building contractors, nor a motor vehicle law governing the conduct of automobile operations. This statute does not impose any standard of care which, if violated, gives rise to tort damages; rather it created a statutory cause of action arguably akin to a declaration of rights under law. The negligence per se claim of the third count is dismissed.
The fourth count of Rowe's amended complaint alleges that Rubin " acted recklessly and/or intentionally to deprive Rowe of her rights" to access the attic. On this claim Rowe seeks punitive damages which in Connecticut are limited to the costs of litigation less taxable costs. Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 532-33, 562 A.2d 1100 (1989). " As a general rule, punitive damages may only be awarded for outrageous conduct . . . The conduct must be outrageous, either because the defendant's acts are done with an evil motive or because they are done with reckless indifference to the interests of others." R.I. Pools, Inc. v. Paramount Concrete, Inc., 149 Conn.App. 839, 868, 89 A.3d 993, cert. denied, 312 Conn. 920, 94 A.3d 1200 (2014) [quoting Ames v. Sears Roebuck & Co., 8 Conn.App. 642, 655, 514 A.2d 352 cert. denied 201 Conn. 809, 515 A.2d 378 (1986)]. The court finds that Rubin's conduct does not merit common-law punitive damages. Her actions in closing off access to the attic space were not taken with an evil motive. While arguably her actions were indifferent to Rowe's rights they were not taken recklessly. Rubin testified that when she found out about the hatch she performed a " fact check" involving review of documents, called her lawyer and realtor, and spoke to Peter Green the then owner of Unit 10. Tr. II, 68-69. Rubin was surprised, upset and, the court has found, eventually wrong, but her actions, arbitrary as they may have been, were not taken recklessly in light of the proximity of the units and potential security issues, a concern shared years earlier by the man in charge of creating the condominium units. The fourth count is dismissed.
The damages claimed by Rowe are the expenses incurred for storage of her goods (" boxes and things, " Tr. I, 61) at a public storage facility due to lack of access to the attic space. The storage bills for a five by fifteen foot space since May 2010 are $22, 072. Ex. 18; Tr. I, 55. There was some testimony that Rowe experienced emotional distress resulting from " not just about the issue of the attic" but the generally unneighborly circumstances. Id., 60.
The court finds the claim for non-economic damages for emotional distress not proven. The claim for compensation for storage fees involves several issues. Rubin contends that because Rowe agrees that she has not requested nor received consent from the Condominium Association Board of Directors to store anything in a " common area, " see Ex. 26, P21, she has no right to use the attic area for storage. The court disagrees for two reasons. First the court has found the area to be a " limited common area, " and second, Rowe had no reason, until now, to seek Board consent because she has had no access to the attic area.
A different question is presented as to what effect access to the attic space would have had on Rowe's storage expenses. Rowe's inspector, Mezoff, and her predecessor in title, Green, testified that they used a six-foot ladder to reach the attic through the hatch. There are no measurements in evidence, but the hatch dimensions appear to be less than three feet square. There is a paucity of evidence to prove what Rowe might, or could have, stored in the attic space had it been available. The court finds there is insufficient proof to sustain an award of economic damages.
IV. Conclusion
The plaintiff has prevailed on some, but not all of her claims. The defendant did not prevail on her special defense or her counterclaim. Therefore, the court will award reasonable attorneys fees to the plaintiff, pursuant to General Statutes § 47-75(a). The court directs plaintiff's counsel to submit a properly supported application for such fees. See Smith v. Snyder, 267 Conn. 456, 839 A.2d 589 (2004).
(a) A . . . unit owner . . . subject to this chapter may bring an action to enforce a right granted or obligation imposed by this chapter, the declaration or the bylaws. The court may award reasonable attorneys fees and costs.Conn. General Statutes § 47-75 provides in relevant part:
(a) Each unit owner . . . shall comply with this chapter, the condominium instruments, and the rules and regulations adopted pursuant thereto. Failure to so comply shall be ground for an action to recover damages or for injunctive relief, or for any other relief to which the party bringing such action may be entitled. Such action may be brought by . . . one or more aggrieved unit owners on their own behalf . . . If any such action results in a final judgment or decree in favor of the party instituting such action, such judgment or decree may incorporate a provision for reasonable attorneys fees.
Section 47-235 grants unit owners rights to use common areas that are not limited common areas.