Sarita & Nafis Khan, Eric & Katherine Gadpaille, Judith LaPointe & Robert Earley v. Alpine Haven Property Owners' Association, Inc.

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court,
109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may
be made before this opinion goes to press.

2016 VT 101

No. 2015-303

Sarita and Nafis Khan, Eric and Katherine Gadpaille, Supreme Court
Judith LaPointe & Robert Earley

On Appeal from
v. Superior Court, Franklin Unit,
Civil Division

Alpine Haven Property Owners’ Association, Inc. March Term, 2016

A. Gregory Rainville, J.

Barry Kade, Montgomery, for Plaintiffs-Appellees.

Robert A. Gensburg, St. Johnsbury, for Defendant-Appellant.

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

¶ 1. REIBER, C.J. Both sides appeal in this long-running dispute involving Alpine

Haven, a sprawling subdivision located along Vermont Route 242 in the Towns of Montgomery

and Westfield. The dispositive question for this Court is whether the undisputed facts support

the trial court’s conclusion that the “chalets” within Alpine Haven constitute a preexisting

common interest community (CIC) governed by Title 27A of the Vermont Statutes Annotated.

The trial court found a “series of deeds” sufficient to constitute a “declaration” of a CIC under

the Vermont Common Interest Ownership Act (VCIOA). Plaintiffs, who own

chalets/undeveloped lots in Alpine Haven, argue that the court erred in reaching this conclusion.
We agree, and therefore reverse and remand for additional proceedings. Given our conclusion,

we need not reach the majority of the parties’ remaining arguments.

¶ 2. This is the latest in a series of lawsuits, spanning more than thirty years, between

defendant Alpine Haven Property Owners’ Association, Inc. (AHPOA) and certain home/lot

owners. Plaintiffs filed the instant complaint against AHPOA in May 2011. Plaintiffs asserted

that their property is not part of a CIC and that they were not required by their deeds to be

AHPOA members. Plaintiffs acknowledged an obligation to pay the reasonable costs of services

provided and accepted, including maintaining the right-of-way, snowplowing, street lighting, and

garbage collection. They argued, however, that they should not have to pay AHPOA for special

assessments, annual meeting costs, insurance, road expansion or improvements, or any other

AHPOA expenses not specified in their deeds. Plaintiffs also argued that a 2011 “Amended and

Restated” declaration was not validly adopted.

¶ 3. AHPOA counterclaimed, asserting that Alpine Haven was a preexisting CIC. It

sought a declaratory judgment regarding a member’s right to “resign” from AHPOA and rescind

obligations as a unit owner, including the obligation to pay assessed fees. AHPOA maintained

that plaintiffs were obligated, and failed, to pay properly assessed fees. AHPOA also argued that

plaintiffs had knowingly received benefits at AHPOA’s expense, including road maintenance,

snow plowing, lighting, garbage collection, and the administration of such services and

amenities, and that it would be inequitable for plaintiffs not to compensate and reimburse

AHPOA for their value.

¶ 4. We begin with an overview of the law governing this dispute. The VCIOA is

based on the Uniform Common Interest Ownership Act (UCIOA) and it became effective on

January 1, 1999. This Act “combined, in a single comprehensive law, prior uniform laws in this

area (the Uniform Condominium Act (1980), the Uniform Planned Community Act (1980) and

the Model Real Estate Cooperative Act (1981)).” UCIOA, Pref. Note (1994). The term

2
“common interest community” is defined for the first time in the UCIOA, drawing on the

definition of “planned community” in the Uniform Planned Community Act. 27A V.S.A. § 1-

103, cmt. 8. This term is “used through the [UCIOA] to refer collectively to the three particular

forms of common interest community: condominiums, cooperatives, and planned communities.”

Id. Because the terms condominium and cooperative are precisely defined, a planned

community is a catch-all for “everything else” that satisfies the general definition of a CIC. Id.

¶ 5. A CIC is broadly defined as “real estate described in a declaration with respect to

which a person, by virtue of the person’s ownership of a unit, is obligated to pay for a share of

real estate taxes on, insurance premiums, maintenance, or improvement of, or services or other

expenses related to common elements, other units, or other real estate other than that unit

described in the declaration.” Id. § 1-103(7).1 Compare UPCA § 1-103(21) (defining “planned

community” as “real estate with respect to which any person, by virtue of his ownership of a

unit, is obligated to pay for real property taxes, insurance premiums, maintenance or

improvement of other real estate described in a declaration”).

¶ 6. A “declaration” means “any instruments, however denominated, that create a

common interest community and any amendments to those instruments.”2 27A V.S.A. § 1-

103(13). For CICs created after January 1, 1999, declarations must contain very specific

information set forth by statute, including the name of the CIC and the association; the name of

each municipality in which any part of the CIC is located; a legally sufficient description of the

1
“Real estate” is defined as “any leasehold or other estate or interest in, over or under
land, including structures, fixtures, and other improvements and interests which by custom,
usage, or law pass with a conveyance of land though not described in the contract of sale or
instruments of conveyance.” 27A V.S.A. § 1-103(25). The term “common elements” means
“any real estate within a planned community owned or leased by the [unit owners’] association,
other than a unit.” Id. § 1-103(4)(B).
2
This definition also appears to have been drawn from the Uniform Planned Community
Act. See UPCA § 1-103(11) (“ ‘Declaration’ means any instruments, however denominated, that
create a planned community, and any amendments to those instruments.”).
3
real estate included in the CIC; a statement of the maximum number of units that the declarant

reserves the right to create; a description of the boundaries of each unit created by the

declaration, including the identifying number of the unit; a description of any limited common

elements and, with respect to planned communities, any real estate which is or will be common

elements; and numerous other items. See id. § 2-105(a)(1)-(15).

¶ 7. Certain provisions of the VCOIA apply to CICs that existed prior to its enactment,

even though these CICs may not have a declaration that strictly complies with the statute. Id.

§ 1-204, cmt. 3. In taking this approach, the Act aims to “measurably increase the ability of the

unit owners to effectively manage the association, and . . . help to encourage the marketability of

common interest communities created under early condominium statutes or under common law.”

Id.

¶ 8. Presumably because the VCIOA encompasses CICs created under common law,

the definition of “declaration” includes not only “the traditional condominium declaration with

which most practitioners are familiar,” and “the declaration of covenants, conditions, and

restrictions (CC&R’s) so common in planned unit developments,” but also “a series of deeds to

units with common mutually beneficial restrictions, or to any other instruments which create the

relationship which constitutes a common interest community.” Id. § 1-103, cmt. 8; see

Restatement (Third) of Prop. (Servitudes), § 6.2 cmt. e. (explaining that “[b]efore declarations

came into common use, the servitudes that created a common-interest community were usually

set forth in the deeds to the individual lots, or shown on the face of the recorded plat”).

I. Undisputed Facts

¶ 9. With this legal background in mind, we turn to the undisputed facts. In the 1960s,

Hubert and Caroline Daberer assembled approximately 500 acres of land to create what has

become known as Alpine Haven. There was no “master plan,” site survey, or contemporaneous

subdivision plat, and no overall series of permit applications or approvals. There was no

4
“declaration” of, or bylaws for, any planned community filed or recorded at the outset of the

project.

¶ 10. The Daberers sold some lots personally, but relatively early on, they transferred

their land to two corporations that they controlled: Alpine Haven, Inc. for the Westfield portion

(as of May 10, 1963) and Leisure Properties, Inc. for the Montgomery portion of the land (as of

November 29, 1967). Currently, Alpine Haven contains more than eighty-five lots with homes,

several undeveloped or “large lots,” several lots with some commercial activity, and three lots

that AHPOA owns and maintains as common land for various purposes. AHPOA owns and

maintains 4.5 miles of roads within the development, including the streetlights and snowplowing.

Almost all of the lots owners depend on the private roads to access their property.

A. Westfield Conveyances

¶ 11. Between 1963 and 1965, sixteen lots and/or chalets were sold in Westfield. The

first deed, from the Daberers personally to the Bretons in January 1963, gave the grantees a

“right-of-way leading from the main road,” and the Daberers promised to “pipe water to such

construction site on said premises as may be indicated by the grantees.” The deed prohibited

commercial use of the property, and limited use to a home with a garage. The second deed, from

the Daberers to the Racines in March 1963, contained the same right-of-way grant, the same

covenant regarding use of the property, as well as a promise by the Daberers “to keep and

maintain said right-of-way in good reasonable state of repair,” “supply water to said premises as

now piped,” “provide garbage removal for said premises,” and maintain the existing “street

lights in the area of said premises.” For these services, the Racines agreed to pay the Daberers

(or assigns) $100 per year.

¶ 12. Alpine Haven, Inc. conveyed most of the remaining lots in Westfield. The next

fourteen deeds (through 1965) were similar, and all contained language similar to the Racine

deed with respect to the services and facilities to be provided and maintained by the grantor, and

5
the restrictive covenant regarding use of the property. These deeds did not, however, contain any

obligation by the grantees to pay for any services.

¶ 13. There were twenty-five additional conveyances between 1966 and 1969. These

deeds contained language similar to the Racine deed with respect to services and facilities

provided and maintained by the grantor, and the restrictive covenant regarding use of the

property. Beginning with the second deed in 1966, however, some of the deeds began to include

an express payment obligation. The first stated: “These services to be at a fee to be determined

by the grantor.” By 1969, the payment language required grantees to pay grantors “a reasonable

annual fee” for “these services.” This deed, however, was from the Daberers personally, not

from Alpine Haven, Inc. Sixteen of the twenty-five deeds during this period contained some

form of a payment obligation.

¶ 14. Ten additional lots were sold in the 1970s. These deeds continued essentially the

same road, water supply, garbage disposal, and streetlight obligations on grantor’s part, and the

same restrictive covenants on property use. All but one of the deeds (the last one that decade)

contained the “reasonable annual fee” language (or equivalent) requiring the grantee to

contribute to the operating and upkeep costs of the basic services and facilities.

¶ 15. In the 1980s and to date, the deed provisions again became somewhat more

sporadic. A June 1981 deed contained the property-use covenant, but did not include the

grantor’s obligation to provide any services or facilities, or the grantee’s obligation to pay for

them. The next three deeds, two in 1982 and the next in 1997, contained all three “standard”

deed terms, which the court considered as the use-restriction, the obligation to provide services,

and the obligation to pay for services. The three subsequent deeds, in 2004 (an unimproved lot),

2005, and 2007, contained none of those provisions. The last original deed in Westfield, in

September 2010, contained all three “standard” deed terms.

6
 ¶ 16. Plaintiff Gadpailles own a lot/chalet on the Westfield side, and their deed contains

all three standard deed terms described above. They also own a chalet on the Montgomery side

of Alpine Haven. All of the remaining plaintiffs own lots and property in Montgomery, where

development began a few years later than in Westfield.

B. Montgomery Conveyances

¶ 17. Leisure Properties, Inc. executed all of the deeds for the Montgomery land. The

first individual lot/chalet deed was executed in January 1968. This deed contained the property-

use covenant, a right-of-way, and the grantor promised to maintain the right-of-way, continue to

supply water, maintain the existing streetlights, and provide garbage removal. This deed did not

include an obligation to pay for any services. There were ten additional deeds in the 1960s. A

payment obligation appeared in the third deed (“grantee . . . shall pay a reasonable fee therefor”),

becoming the standardized “shall pay . . . a reasonable annual fee” with the fifth deed.

¶ 18. The majority of the lots/chalets in Montgomery were conveyed in the 1970s. Of

twenty-two deeds issued in the 1970s, five did not include any or at least most of the typical

provisions already discussed: no services obligation of any kind, no use restrictions, and/or no

payment obligation. The remaining seventeen deeds included the typical deed language

regarding the road network and other services and the obligation to pay for those items, as well

as the covenant regarding property use

¶ 19. In the 1980s and thereafter, there were five more conveyances, which essentially

completed the transfer of all the land on the Montgomery side. None of these deeds contained

any of the standardized deed language that restricted the use of the property to a single-family

home with a garage, obligated the grantor to provide services, or obligated the grantee to pay for

these services. One contained a provision that expressly allowed commercial use. The fifth deed

in 1988 conveyed most (if not all) of the remaining undeveloped land in Montgomery, in bulk, to

7
the Northeast Land & Trading Company, and then subsequently to plaintiffs Gadpaille, Earley,

and Khan. This land is the subject of the “large lots” dispute, not at issue in this appeal.

¶ 20. The court found that these last five transactions did not appear to be

representative, and that the overall pattern and model for conveyances of the individual chalet

lots in Montgomery was established in the 1960s and 1970s. Accordingly, with respect to

plaintiffs Khan, Gadpaille, and LaPointe, each of whom owned an individual lot and chalet home

on the Montgomery side, their source deeds for those “chalet” lots all came with the standardized

language discussed above. The court noted that the “reasonable annual fee” language did not

contain, or reference, any actual formula for calculating those expenses.

C. Creation of AHPOA

¶ 21. In 1972, Hubert Daberer first organized a nonprofit corporation called Alpine

Haven Property Owner’s Association, Inc., although the record suggested that this entity became

dormant. Another homeowners’ association was apparently set up by some lot owners and

became active in the mid-1980s, but it was apparently not legally organized. These two

organizations appeared to have essentially “merged” in the early to mid-1990s into the current

AHPOA.

¶ 22. The Daberers and/or their companies collected all of the “reasonable fees” paid

for services and facilities as compensation for the same and to the former’s own benefit until

1998. At that time, by deed, AHPOA assumed ownership of, and all of the maintenance and

service-provision responsibilities for, the road network, snowplowing, street lights and garbage

disposal, apparently paying $120,000 to the Daberers and/or their corporate entities. The

purchase expense was then apparently included in the pro rata charges to all Alpine Haven lot

owners. AHPOA now maintains and operates recreational facilities as well—a swimming pool,

tennis courts, and trails—which were originally constructed primarily by the Daberers and/or

their corporate entities. These are nominally distinct from other basic facilities, and homeowners

8
must voluntarily sign up and are supposedly billed separately. Individual driveway plowing and

garbage disposal have effectively become voluntary as well over time, and only lot owners who

accept those services must pay for them.

¶ 23. Several years after AHPOA assumed the maintenance and operation of the basic

common facilities in Alpine Haven, it sought to take advantage of the VCOIA, which became

effective January 1, 1999. In August 2002, AHPOA held an “annual meeting” and adopted, for

the first time, a formal “Declaration” in which it unilaterally declared that Alpine Haven was a

“common interest community” subject to, and capable of invoking the provisions of the Act.

This declaration was recorded. In July 2011, AHPOA held another “special meeting” of its

membership, and purportedly adopted an “Amended and Restated Declaration,” which was also

recorded.

II. Trial Court Rulings

¶ 24. Based on these facts, the trial court found “a series of deeds” beginning in the

mid-1960s that, taken together, consistently and repeatedly “create[d] the relationship which

constitutes a common interest community.” 27A V.S.A. § 1-103, cmt. 14. It determined that the

CIC consisted of all the “chalet” lots in Alpine Haven, but not the “large lots.”3 The common

interest, the court explained, was to have a functioning community restricted to residential

single-family homes and garages, with necessary roads and street lights, water supply, and

garbage pick-up, and the common burden was for each lot owner to pay a “reasonable fee

therefor.” From the outset, the court concluded, each purchaser entered into this basic

3
As to these lots, the court concluded that none of the source deeds contained the
standardized terms and provisions that would put a buyer on notice that the land came with
common burdens, except for an equitable road upkeep requirement imposed in any event under
Hubbard v. Bolieau, 144 Vt. 373, 375-76, 477 A.2d 972, 973 (1984), and now by statute. See 19
V.S.A. § 2702 (“In the absence of an express agreement or requirement governing maintenance
of a private road, when more than one person enjoys a common benefit from a private road, each
person shall contribute rateably to the cost of maintaining the private road, and shall have the
right to bring a civil action to enforce the requirement of this section.”).
9
relationship with all of the other (and subsequent) Alpine Haven property owners, as defined and

provided by those common deed terms. The court determined that each purchaser had sufficient

notice of this relationship from the “series of deeds” already of record to satisfy due process

concerns.

¶ 25. The court found it of no moment that some of the earliest deeds omitted any

express payment term, or that the payment language used did not become uniform until several

deeds had passed. Citing the definition of a CIC, the court found it sufficient if the “obligat[ion]

to pay” exists “by virtue of the person’s ownership” of the unit and concomitant use of shared

services and facilities, regardless of how that obligation arises or is imposed. 27A V.S.A. § 1-

103(7). It could occur by express deed language, as in all but a handful of the deeds here, but it

could also occur as a matter of fundamental equity. See Hubbard, 144 Vt. at 375-76, 477 A.2d at

973 (explaining that Supreme Court has long recognized equitable principle that when several

persons enjoy a common benefit, all must contribute ratably to discharge of burdens incident to

existence of benefit, and obligation to contribute applies in absence of express agreement). The

court distinguished Patch v. Springfield School District, 2009 VT 117, 187 Vt. 21, 989 A.2d 500,

the case on which plaintiffs primarily relied. It left open the question of whether the 2002 and

2011 Declarations adopted by AHPOA were valid and enforceable and whether applicable

procedural requirements of VCOIA had been observed.

¶ 26. The trial court, with a new presiding judge, issued a second decision in July 2015.

It affirmed the prior ruling that the chalets in Alpine Haven were a preexisting CIC. It

determined that subsequent amendments to Alpine Haven’s declaration and bylaws were

procedurally defective, and thus void. It found a material dispute of fact as to whether AHPOA

charged reasonable fees for services rendered, necessitating a trial. This interlocutory appeal,

based on stipulated questions, followed.

10
 III. Arguments on Appeal

¶ 27. Plaintiffs challenge the court’s conclusion that a CIC exists. They argue that to

constitute a “declaration” under VCOIA, a deed must contain the elements of a declaration and

put all purchasers on notice that a planned development is being created from the very first deed

and all that follow. Plaintiffs rely on Patch, and assert that, as in that case, “[t]he missing

ingredient is a declaration of covenants imposed before the first lot was sold, or a subsequent

agreement among all lot owners to impose a set of covenants on the involved land.” 2009 VT

117, ¶ 15. Plaintiffs contend that there is no language in any of the deeds at issue indicating that

the grantee has any relationship to anyone other than the grantor, nor is there language indicating

that the covenants run with the land. Plaintiffs maintain that the covenants were written for the

Daberers’ personal benefit.

¶ 28. We review the court’s summary judgment de novo, applying the same standard as

the trial court. Sabia v. Neville, 165 Vt. 515, 523, 687 A.2d 469, 474 (1996). “Summary

judgment is appropriate when there are no genuine issues of material fact and the moving party is

entitled to judgment as a matter of law, after giving the benefit of all reasonable doubts and

inferences to the nonmoving party.” Id. We conclude that the deeds here did not suffice to

create a CIC.

¶ 29. As previously indicated, the term CIC is newly defined in the UCIOA, based

largely on the prior definition of “planned community” in the Uniform Planned Community Act.

While the comments to the UCOIA indicate that a declaration may be established through “a

series of deeds to units with common mutually beneficial restrictions,” we have found no case

that squarely addresses this language.4 As previously indicated, this language apparently seeks

4
The trial court cited Evergreen Highlands Ass’n v. West, 73 P.3d 1, 8-9 (Colo. 2003),
but acknowledged that in that case, there was a declaration and a recorded subdivision plat in
addition to covenants contained in various deeds within a subdivision. The court did not refer to
the “series of deeds” language in the UCOIA, and we do not find this case useful here.
11
to encompass CICs or planned communities created at common law. See Wise v. Harrington

Grove Cmty. Ass’n, Inc., 584 S.E.2d 731, 735 (N.C. 2003) (observing that prior to enactment of

Planned Communities Act, creation and enforcement of residential development plans “were

largely accomplished through the use of common law restrictive real estate covenants”); Roper v.

Camuso, 829 A.2d 589, 602-03 (Md. 2003) (discussing origin of doctrine of implied negative

reciprocal covenants, and explaining that in early days, it was uncommon for developer to

evidence development or impose uniform restrictions through recorded declaration; instead,

developer commonly placed restrictions in deeds to individual lots and, sometimes, represented

to purchasers that same restrictions would be placed in subsequent deeds to other lots).

¶ 30. In applying this language, we find it useful to consider other types of planned

developments that, like CICs, rely on servitudes for their creation. See Restatement (Third) of

Prop. (Servitudes), ch. 6, intro. note (recognizing that “[s]ervitudes underlie all common-interest

communities, regardless of the ownership and organizational forms used”). This includes

“general plan developments,” defined by the Restatement as a “real-estate development or

neighborhood in which individually owned lots or units are burdened by a servitude imposed to

effectuate a plan of land-use controls for the benefit of property owners in the development or

neighborhood.” Id. § 1.7(1). A servitude may be implied in a particular deed if a “general plan”

exists, and generally speaking, “the doctrine is applied when: (1) a common owner subdivides

property into a number of lots for sale; (2) the common owner has a general scheme of

development for the property as a whole, in which the use of the property will be restricted; (3)

the vast majority of subdivided lots contain restrictive covenants which reflect the general

scheme[5]; (4) the property against which application of an implied covenant is sought is part of

the general scheme of development; and (5) the purchaser of the lots in question has notice,

5
Significantly, as discussed in greater detail below, we have rejected this “more relaxed”
requirement found in other jurisdictions, and instead require a declaration of covenants prior to
the sale of the first lot or an agreement of all landowners. Patch, 2009 VT 117, ¶ 20.
12
actual or constructive, of the restriction.” Patch, 2009 VT 117, ¶ 19 (citation omitted) (emphasis

omitted).

¶ 31. CICs “are usually also general-plan developments . . . because they are usually

developed according [to] a general plan of land-use restrictions.” Restatement (Third) of Prop.

(Servitudes) § 1.8 cmt. a. To be a CIC, however, a general-plan development must “also include

common property that all lot owners are required to support.” Id. In other words, as set forth in

VCOIA, there must be “real estate described in a declaration with respect to which a person, by

virtue of the person’s ownership of a unit, is obligated to pay for a share of real estate taxes,

insurance premiums, maintenance, or improvement of, or services or other expenses related to,

common elements, other units, or other real estate described in the declaration.” 27A V.S.A. § 1-

103(7).

¶ 32. Given the overlap between these two types of development, we find our decision

in Patch, which discussed general plan developments, instructive here. In Patch, the parties were

adjacent landowners. The plaintiff sought to prohibit her neighbor, a school district, from

constructing a parking lot, arguing that restrictive covenants in the district’s chain of title limited

use of the land to dwelling purposes. The adjoining lots had a common owner and the land had

been included in the common owner’s 1928 plan for a residential subdivision containing over

100 lots. A 1928 plat map, which was recorded, showed the land divided into lots. The first lot,

sold in 1929, contained no reference to restrictive covenants. The next sixteen deeds did, as did

ten of the eleven subsequent conveyances. The school district’s chain-of-title did not contain

any restrictive covenants as to use of the property.

¶ 33. The question before us in Patch was whether the district was subject to the

restrictive covenants that were explicit in the deeds of most of the properties conveyed by the

prior common grantor. The plaintiff argued that the owner had created a general-plan

development on the land as described in the recorded plat map, and that the development was

13
governed by the set of restrictive covenants contained in most of the deeds to the first seventeen

purchasers. We rejected this argument, relying on the Restatement’s definition of a general-plan

development. We explained that “[c]ovenants in individual deeds cannot constitute a

‘declaration’ of covenants,” and even more importantly, the first lot sold in the subdivision

contained no covenants at all. Patch, 2009 VT 17, ¶ 12. The recorded plat map did not suffice,

we continued, because it gave no indication of any restrictions that might govern the identified

lots. Id. Taking these factors together, we determined that the subdivision was not a general-

plan development. Id. ¶ 12.

¶ 34. In reaching our conclusion, we emphasized that the “intent” to create a general-

plan development, standing alone, does not suffice. We reasoned:

Here, . . . the filing of a subdivision plat map in the land records,
inclusion of the same restrictive covenants in many of the deeds to
the subdivision lots, and evidence of intent to create a common-
plan development—derived from the fact that all but a handful of
the lots were expressly subject to the covenants—does not compel
us to conclude a general-plan development exists. The missing
ingredient is a declaration of covenants imposed before the first lot
was sold, or a subsequent agreement among all lot owners to
impose a set of covenants on the involved land.

Id. ¶ 15. We declined to follow the out-of-state cases cited by the plaintiff, which recognized

common plans based on covenants contained in most but not all of the deeds to lots in a

subdivision. Instead, we emphasized that “[p]urchasers interested in a general-plan development

may either establish such a plan in the common declaration of covenants or seek out the

agreement of their neighbors.” Id. ¶ 20.

¶ 35. We reach a similar conclusion here. Just as covenants must be included in all

deeds to create a general-plan development, so too must all of the deeds include a “common

burden” imposed on all lot owners in order to establish a CIC. In other words, for a “series of

deeds” to constitute a declaration of a CIC, all of the deeds must describe “the real estate . . .

with respect to which a person, by virtue of the person’s ownership of a unit, is obligated to pay

14
for a share of real estate taxes, insurance premiums, maintenance, or improvement of, or services

or other expenses related to, common elements, other units, or other real estate described in the

declaration.” 27A V.S.A. § 1-103(7). That critical component is missing here. Numerous

deeds, including the first deed, did not include any obligation for the grantee, by virtue of their

ownership of a lot, to pay for maintenance or improvement of the road, or any services or other

expenses related to common units or other expenses. In the first deed, the Daberers simply

provided the grantees a right-of-way and the Daberers promised to pipe water to the construction

site on the premises as the grantees may indicate. Some later deeds included the grantor’s

promise to maintain the right-of-way, supply water, provide for garbage removal, and maintain

the streetlights, with an obligation to pay for these services, but some deeds did not. Of the 59

original deeds on the Westfield side, 29 deeds did not contain an express obligation to pay for

any services. Of the 28 original deeds on the Montgomery side, 11 did not contain any payment

obligation, and 10 of these did not include any obligation on the grantor’s part to provide

services. This inconsistent deed history does not suffice to show a declaration that identifies

common property in “Alpine Haven” that all lot owners were required to support by virtue of

their ownership of a lot.

¶ 36. We note that an equitable obligation to contribute based on use of the road, or use

of certain services, is not the same as a servitude that obligates a homeowner to pay regardless of

use. Only the latter obligation will create a CIC. As the Restatement explains, “[w]hen several

landowners share a common easement, or similar easement rights over a servient estate, they

may all be required to contribute to maintenance of the easement,” but “they are not a common-

interest-community because the extent of their duty is determined by the extent of their actual

use of easement, and they may escape any obligation by abandoning the easement.” Restatement

(Third) of Prop. (Servitudes) § 1.8 cmt. c. The distinctive feature of a CIC, by contrast, is an

obligation by virtue of a servitude “that binds owners of individual lots or units to contribute to

15
the support of common property, or other facilities, or to support the activities of an association,

whether or not the owner uses the common property or facilities, or agrees to join the

association.” Id. (emphasis added).

¶ 37. While it might seem apparent in hindsight that Alpine Haven “has become” a

CIC, we cannot see how it would have been apparent to certain early buyers, at the time of their

purchase, that their lots were part of a CIC. The scope of the CIC was never defined. Deeds

issued for lots in Westfield did not reference any deeds in Montgomery. Thus, purchasers in

Westfield would not know about the lot sales in Montgomery, unless they searched the

Montgomery land records. Some of the land originally owned by the Daberers can be used for

commercial purposes, and not all lots are limited to a single-family home with a garage. It

would be unfair to prior purchasers to retroactively declare this development a CIC. Analogous

to our decision in Patch, moreover, any intent to create a CIC, standing alone, is not enough.

¶ 38. The purpose of the VCOIA is to promote uniformity but also to protect residential

purchasers. See UCIOA, Pref. Note (stating that UCIOA’s “thrust in the area of consumer

protection is to protect residential purchasers”). “A fundamental precept of UCIOA is that full

and adequate disclosure to purchasers is a viable alternative to governmental registration and

supervision.” Id. To this end, “[d]eclarants are bound by representations made in the

declaration, by the models or samples they use, and by the public offering statements, and are

held to statutory limitations and standards to protect consumers. Among the basic

representations made by declarants are those which describe the scope of development rights and

their duration.” Id. While preexisting CICs are not required to have a declaration that satisfies

the requirements for newly created CICs, it is worth noting that the purported declaration here

did not include any of these basic representations, or other very basic requirements such as “[t]he

name of each municipality in which any part of the common interest community is located,” “[a]

legally sufficient description of the real estate included in the common interest community,” and

16
“[a] statement of the maximum number of units which the declarant reserves the right to create.”

27A V.S.A. § 2-105(a)(2)-(4); see also Nahrstedt v. Lakeside Vill. Condo. Ass’n, 878 P.2d 1275,

1280-1282 (Cal. 1994) (explaining that “the declaration, which is the operative document for the

creation of any common interest development, is a collection of covenants, conditions and

servitudes that govern the project,” and typically “describes the real property and any structures

on the property, delineates the common areas within the project as well as the individually held

lots or units, and sets forth restrictions pertaining to the use of the property”).

¶ 39. The trial court emphasized that the VCIOA seeks to satisfy basic elements of due

process, with the “notice” part satisfied by some “declaration” of record that lets the homeowner

know prior to purchase that her or his or their property is in fact part of a “common interest

community” such that common interests and common burdens exist. Unlike the trial court, we

do not find here a “series of deeds” that “create[d] the relationship which constitutes a common

interest community,” nor can we conclude that each purchaser had sufficient notice of this

relationship from the “series of deeds” to satisfy procedural fairness concerns.6

¶ 40. Because we conclude that there was no preexisting CIC here, we need not address

the parties’ arguments about AHPOA’s attempts to adopt an amended declaration. These

arguments depend on the trial court’s finding that Alpine Haven was a preexisting CIC. The

6
We did not hold otherwise in Alpine Haven Prop. Owners Assoc., Inc. v. Deptula, 2003
VT 51, 175 Vt. 559, 830 A.2d 78 (mem.). In that case, AHPOA sued certain property owners in
Alpine Haven to collect unpaid fees, plus interest and costs, for road maintenance and other
services rendered. We did not consider whether Alpine Haven was a CIC, but rather noted that
the VCOIA did not apply because the collection action related to events and circumstances that
occurred before the Act’s effective date. Id. ¶ 9 (citing 27A V.S.A. § 1-204(a)). Our decision
focused on deeds that required the lot owner to pay a “reasonable annual fee” for the services
specified in the deed—maintenance of roads, snow removal from the roads, street lighting, and
water service—and we rejected the assertion that the fees must be calculated on a cost basis.
Id. ¶¶ 12-17. We found that the deeds “require the payment of a reasonable annual fee, not a pro
rata share of actual costs,” and thus, AHPOA was “not limited to charging only costs, but may
assess a reasonable fee for its services.” Id. ¶ 17. We affirmed the trial court’s decision that the
homeowners failed to show that the rate structure or fees, which included a special assessment to
repair the roadways, were unreasonable. Id. ¶ 26.
17
only questions left for our consideration are: “on what basis may [AHPOA] calculate the fees for

deeded services it has provided to each of the plaintiffs’ properties,” and “[h]ow much of a fee, if

any, for their rights of way may the Association charge the owners of the three parcels of land in

Montgomery that were conveyed by Northeast Land and Trading Co., Ltd. to (i) Eric Gadpaille

on July 3, 2000; (ii) Nafis Khan and Sarita Kahn on March 30, 2001; and (iii) to Robert Earley

on April 6, 2001.”

¶ 41. The trial court did not address either of these questions. It did not reach the first

question because it determined that Alpine Haven was a CIC. It deferred judgment on the

second question until a trial could be held. We decline to decide either of these questions in the

first instance and leave these questions for the trial court to resolve on remand.

Reversed and remanded for additional proceedings consistent with this opinion.

FOR THE COURT:

Chief Justice

18