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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Rockingham
No. 2015-0143
KELLY SANBORN, TRUSTEE OF THE 428 LAFAYETTE, LLC REALTY TRUST & a.
v.
428 LAFAYETTE, LLC & a.
ANDREW COTRUPI
v.
428 LAFAYETTE, LLC & a.
Argued: November 10, 2015
Opinion Issued: February 18, 2016
Keane & Macdonald, P.C., of Portsmouth (Douglas W. Macdonald on the
brief and orally), for the plaintiffs.
Shaines & McEachern, PA, of Portsmouth (Paul McEachern and Jacob
Marvelley on the brief, and Mr. McEachern orally), for the defendants.
Andrew Cotrupi, for himself, by brief and orally.
CONBOY, J. This appeal arises out of two consolidated actions brought
by the plaintiffs, Kelly Sanborn, Trustee of the 428 Lafayette, LLC Realty Trust,
Donald and Rosemarie Folk, Heather Hancock, and Andrew Cotrupi, against
the defendants, 428 Lafayette, LLC and John Roberge, relating to their
respective ownership of condominium units at Village Square of Hampton
Condominium (Condominium). The defendants appeal rulings of the Superior
Court (Anderson, J.) that: (1) Village Square of Hampton Condominium
Association (Association) is governed by RSA chapter 292 (2010 & Supp. 2015),
entitled “Voluntary Corporations and Associations” (hereinafter Voluntary
Corporations Act), rather than RSA chapter 356-B (2009 & Supp. 2015), the
“Condominium Act”; and (2) Cotrupi has the right to use certain commercial
parking spaces at the Condominium. We affirm in part, vacate in part, and
remand.
I. Background
The trial court found, or the record supports, the following facts. The
Condominium was created on August 11, 2006, pursuant to a declaration,
which was recorded in the Rockingham County Registry of Deeds. The
Condominium is a fourteen-unit building consisting of twelve residential units
and two commercial units.
The declaration provides that fourteen of the parking spaces on the
condominium property shall be commercial parking spaces shared by the
owners of the two commercial condominium units. In 2007, Cotrupi
purchased one of the commercial units. Cotrupi’s warranty deed states that
his unit “is conveyed with the benefit of and subject to the Declaration.” The
deed also conveyed to Cotrupi “the exclusive right to use” six of the commercial
parking spaces.
The Condominium’s bylaws were recorded on the same date as was the
declaration. The bylaws vest “[t]he government of the condominium” in the
Association and provide that “[a]ll [o]wners of [u]nits in the condominium shall
constitute the Association.” The bylaws state that: “Each Unit shall be entitled
to one vote.” They also state that they “are adopted pursuant to” and “are
intended to comply with” the Condominium Act. The bylaws further provide
that: “The Association may be incorporated as a New Hampshire voluntary
corporation and these By-laws shall serve as the By-laws of said corporation.”
In February 2007, the Association incorporated as a nonprofit corporation
pursuant to the Voluntary Corporations Act.
In 2010, Roberge, through 428 Lafayette, LLC, purchased seven of the
condominium units — six residential units and the remaining commercial unit.
Almost immediately after Roberge purchased his units, other unit owners
began complaining that he was violating the Association’s bylaws. Disputes
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arose concerning his use of his commercial unit, as well as over parking and
maintenance issues.
Roberge’s mother also owns two of the residential condominium units.
She has historically given her voting proxies to Roberge, with the result that he
had nine of the fourteen votes at Association meetings. In 2011, Roberge
began serving as the Association’s president.
In August 2013, the plaintiffs, condominium unit owners, brought this
action against the defendants, seeking, among other things, various forms of
injunctive relief, including: (1) “the appointment of a custodian or receiver of
the Association for the duration of [the] litigation”; (2) the removal of Roberge as
the president of the Association; and (3) certain limitations on Roberge’s voting
rights. Cotrupi also individually filed an action against the defendants relating
to, among other things, the use of commercial parking spaces at the
Condominium. The trial court consolidated the actions.
On November 18, 2013, following an evidentiary hearing, the Trial Court
(McHugh, J.) issued an order granting some of the plaintiffs’ requested forms of
relief. In its order, the court stated: “If the conditions do not improve then the
plaintiffs have the right to petition for further relief from this Court and
circumstances at that time might warrant a more severe Court response in
terms of the management of the Condominium Association.”
In August 2014, the plaintiffs sought further relief from the court,
including a finding that “the Association, as a corporation, is to operate in
accordance with corporate princip[les] whereby each Director is afforded one
vote on issues before the Board of Directors.” After a hearing, the trial court
ruled that the Association “is governed as a nonprofit corporation [pursuant to
the Voluntary Corporations Act], rather than a condominium [under the
Condominium Act], for the relatively straightforward reason that it chose” to
incorporate. The court ordered the unit owners to “elect five directors” and
that “[e]ach member shall have one vote — not one vote per unit.” The
defendants moved for reconsideration, arguing that the court erred in ruling
that the Association is governed by the Voluntary Corporations Act rather than
the Condominium Act. The defendants also raised an issue, not addressed in
the court’s order, concerning Cotrupi’s right to use eight of the Condominium’s
commercial parking spaces not subject to his exclusive use. The court denied
the defendants’ motion, and this appeal followed.
II. Governance of the Association
The defendants argue that the trial court erred in ruling that governance
of the Association is exclusively controlled by the Voluntary Corporations Act
rather than the Condominium Act. They contend that: (1) application of the
Condominium Act is mandatory; (2) the Association’s bylaws prohibit the
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application of the Voluntary Corporations Act; and (3) application of the
Voluntary Corporations Act, to the exclusion of the Condominium Act, will
“result in the fundamental destabilization of countless condominiums.” The
plaintiffs counter that, as an incorporated entity, governance of the Association
is exclusively controlled by the Voluntary Corporations Act and the
Association’s bylaws do not negate the Act’s application.
Resolution of this issue requires us to engage in statutory interpretation.
“The interpretation of a statute is a question of law, which we review de novo.”
Autofair 1477, L.P. v. American Honda Motor Co., 166 N.H. 599, 602 (2014)
(quotation omitted). “In matters of statutory interpretation, we are the final
arbiter of the intent of the legislature as expressed in the words of the statute
considered as a whole.” Id. at 603 (quotation omitted). “We first examine the
language of the statute and ascribe the plain and ordinary meanings to the
words used.” In the Matter of Conant & Faller, 167 N.H. 577, 580 (2015).
“Absent an ambiguity we will not look beyond the language of the statute to
discern legislative intent.” State v. Mayo, 167 N.H. 443, 450 (2015) (quotation
omitted). “We interpret legislative intent from the statute as written and will
not consider what the legislature might have said or add language that the
legislature did not see fit to include.” Id. (quotation omitted). We interpret
statutory provisions “in the context of the overall statutory scheme and not in
isolation.” Id. (quotation omitted).
The Condominium Act applies “to all condominiums and to all
condominium projects.” RSA 356-B:2, I (2009). Under the Condominium Act,
all condominiums must record “a set of bylaws providing for the self-
government of the condominium by an association of all the unit owners.” RSA
356-B:35, I (2009). It further provides: “The unit owners’ association may be
incorporated.” Id. The Voluntary Corporations Act governs voluntary
corporations and associations, see RSA 292:1 (2010), :4 (2010), and provides
that “[t]he bylaws [of a voluntary corporation] may contain any provisions for
the regulation and management of the affairs of the corporation not
inconsistent with the laws of the state or the articles of agreement,” RSA 292:6
(2010).
Neither the Condominium Act nor the Voluntary Corporations Act,
however, contains language making it the exclusive Act governing
condominium associations that incorporate. Because neither Act contains
exclusivity language, we conclude that condominium associations that
voluntarily incorporate, as in the present case, are subject to both Acts,
including on matters of governance. Although not addressing the precise issue
presented in this case, we note that other jurisdictions have utilized both the
state’s nonprofit corporation act and condominium act in addressing issues
that arise with condominium associations incorporated as nonprofit
corporations. Cf. Tuscany Grove Ass’n v. Peraino, No. 320685, 2015 WL
4249522, at * ___ (Mich. Ct. App. July 14, 2015) (per curiam) (concluding that
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a bylaw provision of a condominium association incorporated as a nonprofit
corporation, requiring approval of a supermajority of condominium owners
before incurring legal expenses, was not void because, among other reasons, it
did not conflict with Michigan’s Nonprofit Corporation Act or Condominium
Act); Carolina Marlin Club Marina v. Preddy, 767 S.E.2d 604, 613 (N.C. Ct.
App. 2014) (“In order to determine whether [the] notice [of a meeting given by a
condominium association created as a nonprofit corporation] was proper, [the
court] look[ed] to both the Condominium Act and the North Carolina Nonprofit
Corporation Act.”); Shioleno v. Sandpiper Condominiums Council of Owners,
Inc., No. 13-07-00312-CV, 2008 WL 2764530, at *3-7 (Tex. Ct. App. July 17,
2008) (determining that the condominium council, a nonprofit corporation that
served as a condominium association, violated the Texas Non-Profit
Corporation Act, the Texas Uniform Condominium Act, and its own bylaws
when it failed to allow a condominium owner access to the association’s books
and records).
In ruling that the Association is solely governed by the Voluntary
Corporations Act, the trial court relied upon Hobson v. Hilltop Place
Community Assoc., 122 N.H. 1023 (1982). In Hobson, we held that Hilltop
Place Community Association (HPCA), a nonprofit corporation, was governed by
the Voluntary Corporations Act, not RSA chapter 479-A, the predecessor to the
Condominium Act. Hobson, 122 N.H. at 1025-27; see Kilnwood on Kanasatka
Condo. Unit Assoc. v. Smith, 163 N.H. 751, 753 (2012) (explaining that RSA
chapter 479-A is the predecessor to the current Condominium Act). However,
unlike in the present case, HPCA was not a condominium association that
incorporated. Thus, Hobson is distinguishable. See Hobson, 122 N.H. at
1024-25.
The defendants contend that the Association’s bylaws prohibit the
application of the Voluntary Corporations Act to the Association. They argue
that, because the bylaws state that they were “adopted pursuant to” and
“intended to comply with” the Condominium Act and that they “shall serve as
the By-laws” of the Association if it incorporates, the Association is governed by
the Condominium Act. Regardless of the provisions of the bylaws, however, the
bylaws cannot negate the applicability of the Voluntary Corporations Act. Cf.
18 Am. Jur. 2d Corporations § 16 (2004) (“Where a corporation’s articles of
incorporation or bylaws conflict with a statute under which the corporation
was established, the statute controls.”).
The defendants also contend that the application of the Voluntary
Corporations Act, to the exclusion of the Condominium Act, will “result in the
fundamental destabilization” of condominium associations. Because we
conclude that condominium associations that incorporate are subject to both
Acts, we need not address this contention.
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Accordingly, we conclude that the trial court erred in ruling that the
Association is governed solely by the Voluntary Corporations Act. Because the
court issued specific governance-related orders concerning the election of
directors and voting allocation based upon its conclusion that only the
Voluntary Corporations Act applied, we vacate those orders and remand the
case to the trial court to consider the governance issues raised by the parties in
light of our holding that condominium associations that incorporate are subject
to both the Condominium Act and the Voluntary Corporations Act.
III. Commercial Parking Spaces
The defendants next argue that the trial court erred in ruling that
Cotrupi has the right to shared use of eight commercial parking spaces on the
condominium property, in addition to his exclusive use of the remaining six
commercial parking spaces. The defendants contend that, because Cotrupi’s
deed references an amended site plan that was never presented to the trial
court or recorded with the registry of deeds, “it is impossible to determine
whether the Declarant intended for Cotrupi’s deed to convey the exclusive use
of six parking spaces, in addition to the eight remaining commercial spaces.”
The defendants assert that “[w]ithout an amended site plan, it is impossible to
determine the deed’s intent from its four corners” and, thus, urge us to
consider extrinsic evidence to determine its intent.
Resolving this issue requires us to interpret Cotrupi’s deed. “The proper
interpretation of a deed is a question of law for this court.” Lynch v. Town of
Pelham, 167 N.H. 14, 20 (2014) (quotation omitted). “We review the trial
court’s interpretation of a deed de novo.” Id. “In interpreting a deed, we give it
the meaning intended by the parties at the time they wrote it, taking into
account the surrounding circumstances at the time.” Id. (quotation omitted).
“We base our judgment on this question of law upon the trial court’s findings of
fact.” Id. “If the language of the deed is clear and unambiguous, we will
interpret the intended meaning from the deed itself without resort to extrinsic
evidence.” Id. “If, however, the language of the deed is ambiguous, extrinsic
evidence of the parties’ intentions and the circumstances surrounding the
conveyance may be used to clarify its terms.” Id.
Cotrupi’s deed states: “Said Unit is hereby conveyed together with the
exclusive right to use those six (6) parking spaces designated as limited
common area for said Unit as shown and noted on [the] plan . . . to be
recorded.” It further states: “Said Unit is conveyed with the benefit of and
subject to the [Condominium’s] Declaration.” Thus, the deed clearly and
unambiguously grants Cotrupi the exclusive right to six commercial parking
spaces and all the benefits stated in the declaration.
The declaration provides: “The Commercial Unit owners shall have the
right to park within the parking spaces designated as Limited Common Area for
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the Commercial Office Units on the Condominium Site Plan.” Fourteen
commercial parking spaces, including the eight in dispute, are designated as
limited common area on the site plan recorded with the declaration. The
declaration defines “[l]imited [c]ommon [a]rea” as “a portion of the Common
Area which has been reserved for the exclusive use of the specific Unit or Units
to which the Limited Common Area is assigned.” Thus, contrary to the
defendants’ contention, in addition to being granted by deed the exclusive right
to six commercial parking spaces, Cotrupi retains the right under the
declaration to shared use of the remaining commercial parking spaces.
Accordingly, we conclude that the trial court did not err when it ruled
that Cotrupi has the right to use his exclusively owned commercial parking
spaces and the right to shared use of the remaining commercial parking spaces
on the condominium property.
Affirmed in part; vacated
in part; and remanded.
DALIANIS, C.J., and HICKS, LYNN, and BASSETT, JJ., concurred.
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