Opinion
No. CV 06 4020786, No. CV 06 4020785
July 19, 2007
This is an appeal from an assessment made by the Board of Assessment Appeals of the Town of Guilford on certain property attributed to the Unit Owners Association at the Guilford Yacht Club (hereafter Unit Owners Association). The Unit Owners Association is an association of all those persons who own individual units in the Guilford Yacht Club Condominium. The Unit Owners Association is identified by the Assessor of the Town of Guilford (hereafter Assessor) as owning certain real property in the Town of Guilford described as 379 Whitfield Street (Assessor's Map 28 Lot II-A).
In this appeal the Unit Owners Association asserts that the Assessor of the Town of Guilford valued certain property as owned by the Unit Owners Association on the valuation date of October 1, 2005 as follows: $714,070 as fair market value, and $499,850 as the assessed value. The Assessor determined that the property would be liable for taxation at 70% of its true and actual value on that assessment date.
The Unit Owners Association claims that the property assessed is a common element of the Guilford Yacht Cub Condominium, a common interest community, with no development rights reserved.
In the First Count of the Appeal, brought under Section 12-119, (remedy when property wrongfully assessed) the Unit Owners Association alleges that
[t]he assessment and evaluation of this property . . . is grossly excessive and unlawful double taxation in that it is a part and parcel of the common interest community wherein the unit owners of said common interest community each own an undivided interest in the same and are already taxed on their undivided interest as part of the assessment of their individual units, and said assessment could not have been arrived at except by disregarding the statutes for determining the valuation of such property.
Para. 6.
In the Second Count of this appeal, brought under Section 12-117a (appeals from board of assessment appeals), the Unit Owners Association alleges that
[t]he assessment and valuation of this property . . . by the Assessor was not and is not that percentage of its true and actual value on that assessment date, but was and is grossly excessive, disproportionate and unlawful double taxation in that it is a part and parcel of the common interest community wherein the unit owners of said common interest community each own an undivided interest in the same and are already taxed on their undivided interest as part of the assessment of their individual units.
Para. 6.
Factual Background
The Unit Owners Association was declared, i.e. established, as a condominium on or about June 22, 1989. It is a condominium marina with each unit owner owning an individual boat slip and title rights to certain other property at the marina, as described in its Declaration of Condominium Status, dated June of 1989.
By a Second Amendment to the Declaration of the Guilford Yacht Club, dated December 29, 1999, additional property was added to the condominium community which included a pool, bathhouse and adjacent land. It is described as follows:
The property added to the Guilford Yacht Club Common Interest Community consists only of common elements included in the swimming pool, located on the property described in Schedule A, attached, and any buildings and other improvements associated with or attendant to the swimming pool. Use of these common elements is limited to those Unit Owners or other individuals or entities that procure a pool membership thereat, upon such terms and conditions, including but not limited to dues, and/or membership fees, as determined by the Board from time to time. (Emphasis added.)
Second Amendment to Declaration, para 2.
By a Third Amendment to Declaration of the Guilford Yacht Club, dated December 26, 2002, additional property was added to the condominium. The property is described as
. . . consisting only of common elements, including the Clubhouse located on the property described in schedule A, attached, and any buildings and other improvements associated with or attendant to said Clubhouse. Use of these common elements is limited to those Unit Owners or other individuals or entities, upon such terms and conditions, including but not limited to dues and/or membership fees, as determined by the Board from time to time. (Emphasis added.)
Third Amendment to Declaration, para 2.
The Unit Owners Association from time to time sells pool memberships to the public, and rents out the clubhouse to persons who are not owners of units at the yacht club — all activities on the property transferred respectively in the Second and Third Declarations. The Assessor decided that by allowing members of the public to use these facilities for a fee the Unit Owners Association made the facility and the land on which it is situated subject to direct taxation, the payment of which is the responsibility of the Unit Owners Association.
In support of its position the Board of Assessment Appeals quotes the statutory definition of condominium in its post-hearing memorandum.
Condominium means a common interest community in which portions of the real property are designated for separate ownership and the remainder of the real property is designated for common ownership solely by the owners of those portions. A common interest community is not a condominium unless the undivided interests in the common interests are vested in the unit owners.
Sec. 47-202.
Apparently the Assessor interprets the statute for the purpose of assessment and taxation as limiting use of the common interests only to owners of the condominium units at the Yacht Club.
Governing Law
Since the Unit Owners Association was established in June of 1989, the law governing the ownership rights and tax liabilities relative to the unit owners is set forth in Connecticut General Statues Section 47-201, et seq.
Effective January 1, 1984.
As articulated in Candlewood Landing Condominium Association v. New Milford, 44 Conn.App. 107 (1997),
[t]he taxing scheme for condominiums is established by General Statutes § 47-204(b)(2) as follows: `Each unit shall be separately taxed and assessed, and no separate tax or assessment may be rendered against any common elements . . .' Included in the unit owner's tax assessment is his fractional share of the common elements.
Id. 109-10.
The term "unit" in the statute means "a physical portion of the `common interest community designated for separate ownership or occupancy." Sec. 47-202(31).
Subsection (7) of this statute defines the term "common interest community." Quoting the statute
common interest community' means real property described in a declaration with respect to which a person by virtue of his ownership of a unit is obligated to pay for (A) real property taxes on (B) insurance premiums on, (C) maintenance of, or (D) improvement of, any other real property other than that unit described in the declaration.
(Emphasis added.)
By statute the term common elements means ". . . all portions of the common interest community other than the units . . .," Sec. 47-202(4), and the term allocated interests "means the undivided interest in the common elements . . ." Sec. 47-202(2).
From the foregoing, this court finds that the individual unit owners of the Unit Owners Association are to be taxed on their undivided interest in the common elements which includes their fractional interest in the property transferred to them in Schedule A of the Second Amendment to Declaration of The Guilford Yacht Club recorded in Volume 525, page 1115 in the land records of the Town of Guilford, and in Schedule A of the Third Amendment to Declaration of the Guilford Yacht Club, recorded in Volume 605, page 0680, of the land records of the Town of Guilford. The pool and bath house are situated on the property described in the Second Amendment, and the Clubhouse is situated on the property described in the Third Amendment.
The court finds that the use of the properties by members of the public, who are charged a membership fee, does not affect the undivided title interest which the unit owners have in the properties identified in Schedule A of the Second and Third Declarations. Since the fractional share of each unit owner's common elements must be included in the taxation of his/her unit, Candlewood, supra, p. 110, the Unit Owners Association is not liable for that taxation.
Accordingly, the court finds that the property subject of this appeal was and is wrongfully assessed and taxed to the Unit Owners Association. The appeal is sustained.
This is an appeal from an assessment made by the Board of Assessment Appeals of the Town of Guilford on certain property attributed to the Unit Owners Association at the Guilford Yacht Club (hereafter Unit Owners Association). The Unit Owners Association is an association of all those persons who own individual units in the Guilford Yacht Club Condominium. The Unit Owners Association is identified by the Assessor of the Town of Guilford (hereafter Assessor) as owning certain real property in the Town of Guilford described as 379 Whitfield Street (Assessor's Map 28 Lot II-B).
In this appeal the Unit Owners Association asserts that the Assessor of the Town of Guilford valued certain property as owned by the Unit Owners Association on the valuation date of October 1, 2005 as follows: $187,480 as fair market value, and $131,240 as the assessed value. The Assessor determined that the property would be liable for taxation at 70 % of its true and actual value on that assessment date.
The Unit Owners Association claims that the property assessed is a common element of the Guilford Yacht Cub Condominium, a common interest community, with no development rights reserved.
In the First Count of the Appeal, brought under Section 12-119, (remedy when property wrongfully assessed) the Unit Owners Association alleges that
[t]he assessment and evaluation of this property . . . is grossly excessive and unlawful double taxation in that it is a part and parcel of the common interest community wherein the unit owners of said common interest community each own an undivided interest in the same and are already taxed on their undivided interest as part of the assessment of their individual units, and said assessment could not have been arrived at except by disregarding the statutes for determining the valuation of such property.
Para. 6.
In the Second Count of this appeal, brought under Section 12-117a (appeals from . . . board of assessment appeals), the Unit Owners Association alleges that
[t]he assessment and valuation of this property . . . by the Assessor was not and is not that percentage of its true and actual value on that assessment date, but was and is grossly excessive, disproportionate and unlawful double taxation in that it is a part and parcel of the common interest community wherein the unit owners of said common interest community each own an undivided interest in the same and are already taxed on their undivided interest as part of the assessment of their individual units.
Para. 6.
Factual Background
The Unit Owners Association was declared, i.e. established, as a condominium on or about June 22, 1989. It is a condominium marina with each unit owner owning an individual boat slip and title rights to certain other property at the marina, as described in its Declaration of Condominium Status, dated June of 1989.
By a Second Amendment to the Declaration of the Guilford Yacht Club, dated December 29, 1999, additional property was added to the condominium community which included a pool, bathhouse and adjacent land. It is described as follows:
The property added to the Guilford Yacht Club Common Interest Community consists only of common elements included in the swimming pool, located on the property described in Schedule A, attached, and any buildings and other improvements associated with or attendant to the swimming pool. Use of these common elements is limited to those Unit Owners or other individuals or entities that procure a pool membership thereat, upon such terms and conditions, including but not limited to dues, and/or membership fees, as determined by the Board from time to time. (Emphasis added.)
Second Amendment to Declaration, para 2.
By a Third Amendment to Declaration of the Guilford Yacht Club, dated December 26, 2002, additional property was added to the condominium. The property is described as
. . . consisting only of common elements, including the Clubhouse located on the property described in schedule A, attached, and any buildings and other improvements associated with or attendant to said Clubhouse. Use of these common elements is limited to those Unit Owners or other individuals or entities, upon such terms and conditions, including but not limited to dues and/or membership fees, as determined by the Board from time to time. (Emphasis added.)
Third Amendment to Declaration, para 2.
The Unit Owners Association from time to time sells pool memberships to the public, and rents out the clubhouse to persons who are not owners of units at the yacht club — all activities on the property transferred respectively in the Second and Third Declarations. The Assessor decided that by allowing members of the public to use these facilities for a fee the Unit Owners Association made the facility and the land on which it is situated subject to direct taxation the payment of which is the responsibility of the Unit Owners Association.
In support of its position the Board of Assessment Appeals quotes the statutory definition of condominium in its post-hearing memorandum.
Condominium means a common interest community in which portions of the real property are designated for separate ownership and the remainder of the real property is designated for common ownership solely by the owners of those portions. A common interest community is not a condominium unless the undivided interests in the common interests are vested in the unit owners.
Sec. 47-202.
Apparently the Assessor interprets the statute for the purpose of assessment and taxation as limiting use of the common interests to owners of the condominium units at the Yacht Club.
Governing Law
Since the Unit Owners Association was established in June of 1989, the law governing the ownership rights and tax liabilities relative to the unit owners is set forth in Connecticut General Statues Section 47-201, et seq.fn1
As articulated in Candlewood Landing Condominium Association v. New Milford, 44 Conn.App. 107 (1997),
[t]he taxing scheme for condominiums is established by General Statutes § 47-204(b)(2) as follows: `Each unit shall be separately taxed and assessed, and no separate tax or assessment may be rendered against any common elements . . .' Included in the unit owner's tax assessment is his fractional share of the common elements.
Id. 109-10.
The term "unit" in the statute means a physical portion of the common interest community designated for separate ownership or occupancy." Sec. 47-202(31).
Subsection (7) of this statute defines the term "common interest community." Quoting the statute
`common interest community' means real property described in a declaration with respect to which a person by virtue of his ownership of a unit is obligated to pay for (A) real property taxes on (B) insurance premiums on, (C) maintenance of, or (D) improvement of, any other real property other than that unit described in the declaration.
(Emphasis added.)
By statute the term common elements means ". . . all portions of the common interest community other than the units . . .," Sec. 47-202 (4), and the term allocated interests "means the undivided interest in the common elements . . ." Sec. 47-202(2).
From the foregoing, this court finds that the individual unit owners of the Unit Owners Association are to be taxed on their undivided interest in the common elements which includes their fractional interest in the property transferred to them in Schedule A of the Second Amendment to Declaration of The Guilford Yacht Club recorded in Volume 525, page 1115 in the land records of the Town of Guilford, and in Schedule A of the Third Amendment to Declaration of the Guilford Yacht Club, recorded in Volume 605, page 0680, of the land records of the Town of Guilford. The pool and bath house are situated on the property described in the Second Amendment, and the Clubhouse is situated on the property described in the Third Amendment.
The court finds that the use of the properties by members of the public, who are charged a membership fee, does not change the character of the undivided title interest which the unit owners have in the properties identified in Schedule A of the Second and Third Declarations. Since the fractional share of each unit owner's common elements must be included in the taxation of his/her unit, Candlewood, supra, p. 110, the assessment and taxation thereof to the Unit Owners Association is not authorized by law.
Accordingly, the court finds that the property subject of this appeal was and is wrongfully assessed and taxed to the Unit Owners Association. The appeal is sustained.