Opinion
FSTCV186037369S
01-17-2020
The Metropolitan Condominium Association, Inc. v. The Town Homes at The Metropolitan Condominium Association, Inc.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh):Krumeich, Edward T., J.
MEMORANDUM OF DECISION
KRUMEICH, J.
This trial concerns a dispute between two condominium associations created by the same declarant on adjacent pieces of property. Plaintiff, The Metropolitan Condominium Association, Inc. ("Metropolitan"), has sued defendant, The Town Homes at the Metropolitan Condominium Association, Inc. ("Town Homes"), for a declaratory judgment interpreting a document entitled "Declaration of Clubroom and Amenity Area Use Agreement and Easement Covenants" ("Declaration"), recorded in the Stamford City Land Records, which plaintiff asserts requires Town Homes to pay an annual fee to Metropolitan. If no fee is required, Metropolitan asks the Court to declare the easement for the use of parking spaces to be null and void as lacking consideration and unconscionable under C.G.S. § 47-210 and terminable by Metropolitan as unconscionable or commercially unreasonable under C.G.S. § 47-247. Metropolitan also seeks damages for breach of the agreement to pay the annual fee and for unjust enrichment because Town Homes has not paid the annual fee since 2010 and has not paid for maintenance or repairs to the parking garage where Town Home unit owners park. Town Homes denies it is obligated to pay Metropolitan an annual fee or to pay for maintenance or repair of the parking garage. Town Homes has also claimed that the claims for damages are barred by the statute of limitations, C.G.S. § 52-576.
To understand the genesis of this dispute requires review of the circumstances under which these condominiums were created by the declarant First Summer Development, LLC ("Declarant") that were spelled out in the Declaration. The Declarant owned contiguous lots that were later divided between the two condominiums that became Metropolitan and Town Homes. The Declarant converted an office building into residential units sold to owners of Metropolitan. The Declarant built town houses on the adjacent properties sold to unit owners of Town Homes. The Declarant built a parking structure (the "Garage") with clubhouse and amenity areas that is part of Metropolitan and, as explained in the Declaration, provided permanent easements to the unit owners of Town Homes to use a portion of the "parking structure" and "use of the clubhouse and amenity areas by unit owners of the Townhomes as well as such unit owners’ designated guests and invitees ..."
The "Parking Easement Area" is defined in the Declaration and shown in a sketch appended as Schedule C. The "Amenity Area" is also defined in the Declaration as the "fitness room and a club room" shown on Schedule D. Although physically the two areas are both located on the ground floor, the Declaration treats each area separately.
The "Amenity Area Use" sections makes it clear that the Town Homes unit owners and their guests and invitees have the right to use the "Amenity Area" to the "same extent and upon the same terms and conditions as the Metropolitan unit owners and their guests and invitees." However, the Town Homes unit owners’ right to use the Amenity Area is conditioned on Town Homes paying an annual fee in monthly installments, which initially was set at $21, 600 per year and payable $1, 800 per month. That amount "may be periodically increased by Metropolitan by an amount equal to the percentage of Metropolitan Unit Owner’s monthly common charge which funds the Amenity Area functions, it being the intent that all users of the Amenity Area facilities pay an equal amount each month ..." The Declaration does not require Metropolitan to continue to provide a clubroom or exercise facility and leaves that to its sole discretion; "the purpose of this grant is simply to afford the Townhome Unit Owners the right to utilize such amenities and facilities upon the same terms and conditions as the Metropolitan Unit Owners."
By letter dated November 1, 2010, Neil Lippman, attorney for Town Homes, informed William Ward, attorney for Metropolitan, that Town Homes would no longer pay the amenities fee and its unit owners would cease using the Amenity Area. On December 26, 2010, Gary Venner, President of Metropolitan, sent Rajan Mehta, President of Town Homes, an email to inform him that Metropolitan had cut off the Town Homes unit owners’ privileges to use "common area amenities privileges ... because you have failed to pay your bill." Venner explained that Metropolitan had not accepted "your unilateral cancellation of one aspect of the easement." Venner stated that "[w]e don’t believe you can do that without our agreement and a signed modification." Every month Metropolitan sends Town Homes a bill for the amenities fee. Metropolitan has billed Town Homes $300, 425.42 in amenities fees for the period July 1, 2010 to November 4, 2019.
The Declaration spells out what happens if Town Homes fails to pay the amenities fee: its unit owners lose their right to use the facilities. The Declaration does not provide any other remedy for failure to pay the amenity fee. The Declaration does not provide that Metropolitan can continue to bill Town Homes for the amenities fee after it has curtailed the Town Homes unit owners’ use of the Amenity Area for nonpayment. Town Homes’ refusal to pay the amenities fee and surrender of its unit owners’ rights to use the Amenity Area was not a modification of the Declaration that would require a written agreement signed by each party, any more than Metropolitan’s decision to deny them access for nonpayment; it merely carried out the parties’ agreement as to the consequences of Town Homes’ default in payment of the amenities fee.
In the "Parking" provision Declarant granted to the Town Homes "a perpetual exclusive easement for purposes of parking not more than eight (8) automobiles in and upon the Parking Easement Area" and the right to use in common with others lanes, entrances, exits, sidewalks and stairwells "necessary to gain ingress and egress by vehicles and pedestrians to the demised Parking Easement Area." Unlike the amenity fee discussed above, the Declaration does not provide for a parking fee for the spaces set aside for the Town Homes’ use.
On February 19, 2016, William Ward, attorney for Metropolitan, sent Neil Lippman, attorney for Town Homes, a letter demanding that Town Homes pay Metropolitan $33, 645.55 as a 6.8% share of the $494, 787.53 costs incurred by Metropolitan to repair the Garage. In the Revised Complaint plaintiff sought to recover fees for parking and contribution for maintenance and repairs to the Garage.
There is no basis for Metropolitan’s assertion that Town Homes is required to pay for parking or for the maintenance and repair of the Garage. There is no parking fee provided in the Declaration. If a parking fee was contemplated it would have been expressly imposed as with the amenity fee. Further, the Declaration imposes a duty to provide alternative "onsite parking" if the designated spaces are unusable for parking and parking privileges are suspended without imposing any fee. The Court rejects plaintiff’s argument that the amenity fee was intended to cover the eight parking spaces. Although they are near the Amenity Area, the spaces in the Parking Easement Area and the Amenity Area are separate and distinct. The Declaration treats parking and amenities separately in different sections with different schedules depicting the defined areas. There is no ambiguity in the Declaration that would allow a court to interpret the amenity fee for use of the Amenity Area to cover parking in the eight designated spaces in the Parking Easement Area. See generally Welch v. Stonybrook Gardens Cooperative, Inc., 158 Conn.App. 185, 197-98 (2015).
In Welch the Appellate Court reiterated that a declaration operates as a deed and is interpreted in accordance with the rules for construction of contracts:" ‘[a] declaration is an instrument recorded and executed in the same manner as a deed for the purpose of creating a common interest community.’ ... ‘[T]he declaration operates in the nature of a contract, in that it establishes the parties’ rights and obligations ...’" 158 Conn.App. at 682 quoting Weldy v. Northbrook Condominium Ass’n, Inc., 279 Conn. 728, 734 (2006) (citations omitted)." ‘[A] contract is unambiguous when its language is clear and conveys a definite and precise intent ... The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity ... Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous ... In contrast, a contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself ... [A]ny ambiguity in a contract must emanate from the language used by the parties ... The contract must be viewed in its entirety, with each provision read in light of the other provisions ... and every provision must be given effect if it is possible to do so.’ ... We will not construe a contract’s language in such a way that it would lead to an absurd result." Welch, 158 Conn.App. at 683 (citations omitted). Interpreting the Declaration’s amenity fee as applying to the use of the Amenity Area only and not to parking in the eight designated parking spaces in the Parking Easement Area is hardly an "absurd result."
It is not unjust to refuse to pay for parking that is granted by right in the Declaration without imposition of a fee. See Connecticut Light and Power Co. v. Proctor, 158 Conn.App. 248, 251 n.7 (2015) ("the equitable remedy of unjust enrichment is not available to a plaintiff if there was in fact a contract between the parties"). See generally Town of New Hartford v. Conn. Resources Recovery Auth., 291 Conn. 433, 454-56 (2009) (no unjust enrichment where express contract addresses the subject).
There is no provision in the Declaration that requires Town Homes to pay for maintenance and repairs to the Garage. To the contrary, the Declaration provides that the Declarant "shall be responsible for the construction and maintenance (including snow removal) of all structures and facilities subject to this easement ..." As successor in interest to Declarant Metropolitan as owner of the Garage has the burden of paying repair and maintenance costs for the Garage. This express provision as to who pays for maintenance and repairs of the Garage distinguishes this case from Hatheway Farms Association v. Hatheway Farms of Suffield, LLC, 135 Conn.App. 1, 8 (2012), which held there is a joint obligation to contribute for maintenance and repair by the servient owner and beneficiary of an easement absent any contrary agreement.
By contrast, the easement agreement between Declarant and 22-1st Corporation under which Redness & Mead has the right to use thirty parking spaces in the Garage expressly provides for a monthly parking fee and "the sum equal to 5% of the total cost of any structural repairs, if any, required for the garage portion of the building ..." Redness & Mead pays $500 in monthly parking fees divided equally between Metropolitan, which owns the Garage, and Town Homes, which owns the driveways and sidewalks, over which 22-1st has an easement pursuant to the agreement.
It is not unjust for Town Homes to refuse to make the contribution demanded by Metropolitan’s counsel and to impose the burden of covering those maintenance and repair costs on Metropolitan, the owner of the Garage, as provided in the Declaration. See Connecticut Light and Power Co. v. Proctor, 158 Conn.App. at 251 n.7.
There was clearly consideration for the easements that ran from Metropolitan to Town Homes. The Declaration recites that a portion of the Garage below grade is located on the property of Town Homes referred to as the "Subsurface Easement Area" and "Mechanical Ventilation Easement Area" and the Declaration grants Metropolitan a perpetual easement to use and access those areas. Moreover, according to the testimony of Metropolitan’s property manager there are eight parking spaces in this area, the same number of spaces provided to Town Homes in the "Parking Easement Area" adjacent to the "Amenity Area." Also Metropolitan received an easement over the driveway and sidewalks to and from the Garage on Town Homes’ property. Metropolitan is not required to pay a fee for use of the Town Homes’ property. There is ample consideration for the mutual easements in the Declaration.
The Court has analyzed the issues presented by the parties concerning interpretation of the Declaration and related easements as if there were two parties to the Declaration, Metropolitan and Town Homes, but that is a fiction because Declarant was the only party to the Declaration and the separate condominiums had not yet been created and the affected properties had not yet been divided between them. This analysis is appropriate because the Declaration describes the property rights later transferred to the contemplated condominiums and their future unit owners and controls their respective property rights and obligations to use the property.
There is no evidence that Metropolitan pays a fee to Town Homes for use of these spaces.
Metropolitan contends the parking easement for Town Homes is unconscionable and should not be enforced without an obligation to pay for use, maintenance and repair of the Garage. In Bender v. Bender, 292 Conn. 696, 731-32 (2009), the Supreme Court defined "unconscionability" as a defense to enforcement of contracts:
The classic definition of an unconscionable contract is one "which no man in his senses, not under delusion, would make, on the one hand, and which no fair and honest man would accept, on the other." ... The doctrine of unconscionability, as a defense to contract enforcement, "generally requires a showing that the contract was both procedurally and substantively unconscionable when made- i.e., some showing of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party ..."
In Hirsch v. Woermer, 184 Conn.App. 583, 589-90 (2018), the Appellate Court expanded upon the defense of unconscionability:
Claims of unconscionability fall into two categories: substantive and procedural. "Substantive unconscionability focuses on the content of the contract, as distinguished from procedural unconscionability, which focuses on the process by which the allegedly offensive terms found their way into the agreement." ... Procedural unconscionability is intended to prevent unfair surprise and substantive unconscionability is intended to prevent oppression ...
The doctrine of unconscionability, as a defense to contract enforcement, generally requires a showing that the contract was both procedurally and substantively unconscionable when made- i.e., some showing of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party ... (citations omitted).
The Restatement (Second) of Contract § 208 (1981) mentions some factors to consider in determining whether a contract or contractual provision is "unconscionable," including "gross disparity in the values exchanged," "defects in the bargaining process," "weakness in the bargaining process," and "unconscionable terms."
Unlike a bilateral contract, the Declaration here was not drafted as part of a bargain between two different parties but the product of the Declarant’s plans to develop the property into separate condominiums which would share certain improvements and amenities. Thus, there is no evidence of either procedural or substantive unconscionability. Even if the Declaration was regarded as between the two condominiums the exchange of easements does not appear unconscionable. As noted above, there was consideration for the easements in the sense that both condominiums benefitted from the easement arrangements made by the Declarant. There was nothing inherently unconscionable or unreasonable in the arrangements that favored both condominiums in the easement rights exchanged. See e.g., Edmundson v. City of Bridgeport, 2019 WL 5066951 *4 (Conn.Super. 2019) (Welch, J.) ("no evidence presented to support a claim that the ... provision was unreasonably favorable to one party or the other").
Compare Federal Nat. Mortgage Assoc. v. Colemen Towers Tenant’s Ass’n, Inc ., 2015 WL 6144025 *8-9, 13 (Conn.Super. 2015) (Tierney, J.) ("although this was a commercial transaction and both parties were represented by an accountant and an attorney, the parties were not on equal bargaining power").
Metropolitan has also argued it may terminate the parking easement under C.G.S. § 47-247, which permits an association to terminate: "(3) any contract or lease that is not bona fide or was unconscionable or commercially unreasonable to the unit owners at the time entered into under the circumstances then prevailing." This provision is limited to contracts and leases by a declarant; it does not allow an association to set aside easements granted by the declarant to which unit owners’ titles are subject. Moreover, it was not unconscionable nor commercially unreasonable for the Declarant to grant the bona fide parking easement here for the reasons stated above.
To reiterate the Court’s declaratory judgment: the Declaration does not require Town Homes (1) to continue to pay the amenity fee; (2) to pay a fee to park in the assigned spaces in the Garage; or (3) to pay for maintenance or repair of the Garage; and (4) the parking easement is not unconscionable, nor commercially unreasonable and was supported by consideration. The Court denies Metropolitan’s claims for damages or for restitution or reimbursement of part of its costs for the Amenity Area or for maintenance and repair of the Garage.
The Court does not reach the statute of limitations defense as unnecessary in light of its rulings.