BRIEF OF 428 LAFAYETTE, LLC & JOHN ROBERGE, APPELLANTS

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1 STATE OF NEW HAMPSHIRE SUPREME COURT DOCKET NO KELLY SANBORN, TRUSTEE OF THE 428 LAFAYETTE, LLC REALTY TRUST & A. V. 428 LAFAYETTE, LLC & A.; ANDREW COTRUPI V 428 LAFAYETTE, LLC & A. BRIEF OF 428 LAFAYETTE, LLC & JOHN ROBERGE, APPELLANTS RULE 7 MANDATORY APPEAL OF THE DECISION OF ROCKINGHAM COUNTY SUPERIOR COURT Paul McEachern, Esq. (1679) Jacob J.B. Marvelley, Esq. (20654) Shaines & McEachern, PA, 282 Corporate Drive Portsmouth NH (603) Paul McEachern, Esq. to argue

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii QUESTION PRESENTED FOR REVIEW...1 STATEMENT OF THE CASE AND THE FACTS...2 SUMMARY OF ARGUMENT...6 STANDARD OF REVIEW...8 ARGUMENTS I. THE TRIAL COURT ERRED IN RULING THAT GOVERNANCE OF THE CONDOMINIUM UNIT II. OWNERS ASSOCIATION IS CONTROLLED BY R.S.A. 292 RATHER THAN R.S.A. 356-B....9 THE TRIAL COURT ERRED IN RULING THAT ONE COMMERCIAL UNIT HAS SIX EXCLUSIVE PARKING SPACES IN ADDITION TO EIGHT SPACES IN COMMON WITH THE OTHER COMMERCIAL UNIT CONCLUSION...18 REQUEST FOR ORAL ARGUMENT...18 i

3 TABLE OF AUTHORITIES STATUTES R.S.A. 356-B... passim R.S.A. 356-B:2...9, 10, 11 R.S.A. 356-B: R.S.A. 356-B: R.S.A. 356-B: R.S.A , 9 12, 14 R.S.A. 479-A (repealed)...10, 11 CASES McGovern v. Sec'y of State, 138 N.H. 128, 635 A.2d 498 (1993)...8 In re Certain Scholarship Funds, 133 N.H. 227, 232, 575 A.2d 1325, 1328 (1990)...8 Masse v. Commercial Union Ins. Co., 136 N.H. 628, 632, 620 A.2d 1041, 1044 (1993)...8 Hobson v. Hilltop Place Community Ass n, 122 N.H (1982)...10, 11, 12 Appletree Mall Associates, LLC v. Ravenna Inv. Associates, 162 N.H. 344, 33 A.3d 1097 (2011)...16, 17 Motion Motors v. Berwick, 150 N.H. 771, 775, 846 A.2d 1156 (2004)...16 Mansur v. Muskopf, 159 N.H. 216, 221, 977 A.2d 1041 (2009)...16 Thurston Enterprises, Inc. v. Baldi, 128 N.H. 760, 765, 519 A.2d 297 (1986)...16 Arcidi v. Town of Rye, 150 N.H. 694, 701, 846 A.2d 535 (2004)...16, 17 Flanagan v. Prudhomme, 138 N.H. 561, 566, 644 A.2d 51 (1994)...17 ii

4 QUESTIONS PRESENTED 1. Whether it was error for the Court to rule that the governing structure of the unit owners association was N.H. R.S.A. 292 rather than N.H. R.S.A. 356-B. (Issue was raised in Def. s Hearing Mem., A ; Def. s Resp. to Pls. Supp. Joint Mem. of Law, A ; Def. s Mot. for Reconsid., A ). 2. Whether the Court was in error in ruling that a for rent sign was not in compliance with the Condominium Declaration as amended when the Declaration stated, However in no event shall any rule be adopted which limit the operation of commercial units including, but not limited to, rules concerning signage and hours of operation; provided that the operation of such units complies with applicable provisions of the Hampton Zoning Ordinance. (Issue hereby waived as moot). 3. Whether the Court was in error in substituting its judgment that one commercial unit not only had six exclusive parking spaces but an additional eight spaces in common with the other commercial unit when the Declaration provided that each of the two commercial units shared the fourteen available parking spaces with each other. (Issue was raised in Def. s Hearing Mem. on Comm. Unit Owner, A ; Def. s Mot. for Reconsid., A ). 1

5 STATEMENT OF THE CASE AND OF THE FACTS The Village Square of Hampton is a condominium building consisting of two commercial units and twelve residential units. The Appellant, John Roberge (hereinafter Roberge ), 1 owns seven units, which he purchased in 2010; Roberge s mother, Sheila Roberge, owns two other units. Final Order on Plf. s Mot. for Contempt and Further Relief at 2 (noticed Dec. 19, 2014) (hereinafter December 2014 Order ). 2 Sheila Roberge typically gives proxies to John Roberge, who effectively has nine of the fourteen votes at meetings of the Village Square of Hampton Condominium Association (hereinafter VSHCA ). Id. The Plaintiff-Appellees own other units in the condominium. Id. The VHSCA has been run as a condominium association. Id. A. Governance of the Village Square of Hampton Condominium. The condominium s Declaration was recorded on August 11, Declaration for Village Square of Hampton Condominium (A-127). The Declaration was amended once. First Amend. To Declaration (A ). The Village Square of Hampton Condominium By-Laws (hereinafter the VSHCA Bylaws ) were executed by the Declarant on July 10, VSHCA Bylaws (A-147). The VSCHA Bylaws were: adopted pursuant to the New Hampshire Revised Statutes Annotated Chapter 356- B, and these By-Laws shall apply to the Village Square of Hampton Condominium as described and created by the Declaration and to all present and future owners, tenants and occupants of any Unit in the condominium and to all other persons who shall at any time use the condominium or any portion thereof. Id. 1 (A-147) The VSHCA Bylaws are intended to comply with the requirements of New Hampshire Revised Statutes Annotated Chapter 356-B. Bylaws, Art. I, 2 (A-147). The VSHCA Bylaws 1 The Plaintiffs also named 428 Lafayette LLC as a defendant. Roberge s units are owned by 428 Lafayette LLC. For simplicity, this Brief refers to the Defendants/Appellants as Roberge. 2 In this Brief, references to the record will be to the Appendix as (A- ). 2

6 afford the VSHCA all of the powers and responsibilities assigned by the New Hampshire Condominium Act, RSA 356-B, as amended from time to time or any successor statute. Bylaws, Art. III, 1 (A-150). The Bylaws 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. Bylaws, Art. II, 1 (A-147). With respect to voting at Association meetings, the VSHCA s Bylaws mandate that [e]ach Unit shall be entitled to one vote. Bylaws, Art. II, 2 (A-148). The Bylaws do not provide for a board of directors. The VSHCA Bylaws predate the VSHCA s incorporation, which occurred when Articles of Agreement were filed on February 27, Articles of Agreement (A-163). The Plaintiffs brought claims related to Roberge s behavior, management of the VHSCA, and the placement of signs on or outside his units. Complaint and Request for Prelim Inj. Relief and Perm. Inj. Relief (hereinafter Original Petition for Relief ) (A-1-13); December 2014 Order at 3-5. The case proceeded to an evidentiary hearing on November 1, See Notice of Decision dated November 20, 2013 (A-51). The trial court (McHugh, J.) issued an Order, requiring Roberge to remove his sign and otherwise denying the plaintiffs requested relief, stating: 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. Order (noticed Nov. 20, 2013) at 5-6 (A-56-57). In August 2014, the plaintiffs petitioned for further relief and for a finding of contempt against Roberge, based on similar allegations as set forth in their original Petition. Plf s Mot. for Further Relief & Contempt (A-91-97); Plf. s Case Status and Req. for Further Relief (A ). Roberge objected. Def. s Obj. to Mot. for Further Relief and Contempt (A ); Def. s Obj. 3

7 to Pl. s Case Status and Request for Further Relief (A ). The matter proceeded to a hearing on September 25, The trial court (Anderson, J.) issued an order, ruling that the VHSCA is governed by R.S.A. 292, not the Condominium Act. December 2014 Order at 7-8. Roberge timely moved to reconsider. Def. s Mot. for Reconsid. (A ). The Court denied Roberge s motion with respect to the issue of whether the VHSCA is governed by the Condominium Act. Order on Def. s Mot. for Reconsid. at 3. B. Plaintiff Andrew Cotrupi, Esq. s Use of Six Commercial Parking Spaces. The condominium s Declaration allocated fourteen parking spaces to be shared by the condominium s two commercial units. See Condominium Site Plan (A-119). The fourteen spaces were designated as limited common area, and fit the Condominium Act s definition of limited common area. See R.S.A. 356-B:3, XX (defining limited common area). That allocation changed with Andrew Cotrupi s (hereinafter Cotrupi ) deed. After the Declaration was recorded, Cotrupi negotiated for and received a Condominium Unit Warranty Deed to Unit 102, a commercial unit, which deed was recorded on April 19, Condominium Unit Warranty Deed (A ). The deed stated in relevant part: Id. 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 plan entitled, As-Built Village Square of Hampton Condominium Site Plan Tax Map 160, Lot 17, 428 Lafayette Road, Hampton, NH for Village Square of Hampton, LLC, to be recorded in the Rockingham County Registry of Deeds. While Cotrupi s deed references an amended site plan, no such plan has ever been recorded and no evidence was submitted to the trial court that it ever existed. See Def. s Hearing Mem. on Comm. Unit Owner at 2 (A-117) ( No such referenced plan has ever been recorded, or to Defendant s knowledge, ever existed. ). The parties attended a hearing on November 1,

8 By Order dated December 6, 2013, the trial court ordered that Cotrupi is entitled to have the amended site plan recorded and the 6 spaces designated as his alone. Order on Plf. s Mot. to Reconsid./Clarify (McHugh, J.) (noticed Dec. 6, 2013) (A-89). Since no amended site plan existed, Cotrupi took the original site plan, blackened out the reference to Unit 101 the Appellant s commercial unit on six parking spaces, and recorded it. Def. s Hearing Mem. on Comm. Unit Owner at 2 (A-117). By recording a marked-up, purported Amended Site Plan, Cotrupi claimed rights to the six exclusive parking spaces and, for the first time, an undivided one-half interest in the remaining eight parking spaces. See Purported Amended Site Plan (removing references to Roberge s Unit 101 on six spaces and leaving reference to both commercial units on remaining commercial parking spaces) (A-121). This was the first time Cotrupi made such a claim. Roberge objected. Def. s Obj. to Pl. s Case Status and Request for Further Relief (A ). The trial court agreed with Cotrupi, finding that the Appellant failed to prove why Roberge s commercial unit should have exclusive rights to the remaining eight parking spaces. Order on Mot. for Reconsid. at 6. 5

9 SUMMARY OF THE ARGUMENT THE TRIAL COURT ERRED IN RULING THAT GOVERNANCE OF THE CONDOMINIUM UNIT OWNERS ASSOCIATION IS CONTROLLED BY R.S.A. 292 RATHER THAN R.S.A. 356-B. VSHCA, like all New Hampshire condominium associations, is governed by the Condominium Act, R.S.A. 356-B. By its own terms, the Condominium Act applies to all condominiums and their cast of persons and entities. A condominium association s decision to exercise its power to incorporate pursuant to the Condominium Act does not jettison the Act in favor of corporate laws. To rule otherwise would create two classes of condominium in New Hampshire: those governed by R.S.A. 356-B and those governed by the State s corporate chapters. The Condominium Act does not contemplate a legal landscape where each condominium s statutory guidance hinges on whether the condominium incorporates. Even if condominium associations could switch their governance statute which they cannot the VSHCA s Bylaws provide that they shall apply, even if the VSHCA should incorporate. Since the VSHCA s Bylaws expressly comply with and reference R.S.A. 356-B, the VSHCA is nevertheless governed by the Condominium Act s provisions. THE TRIAL COURT ERRED IN RULING THAT ONE COMMERCIAL UNIT HAS SIX EXCLUSIVE PARKING SPACES IN ADDITION TO EIGHT SPACES IN COMMON WITH THE OTHER COMMERCIAL UNIT. Cotrupi, as owner of commercial Unit 102, may have exclusive parking access to six parking spaces, but he has no other parking rights at the condominium. The Declaration originally gave the two commercial units shared access to fourteen (14) parking spaces. When Cotrupi purchased his Unit 102, he negotiated for a deed in which the Declarant gave Cotrupi exclusive rights to six parking spaces. The deed references an amended site plan that was never 6

10 recorded and may never have existed. The deed is unclear and/or ambiguous because it references a nonexistent amended site plan. Extrinsic evidence, such as Cotrupi s course of conduct, demonstrates that Cotrupi has no viable claim to the remaining eight parking spaces. For approximately six years, Cotrupi used his six parking spaces without asserting any claims to additional parking. At a 2013 hearing, Cotrupi only asked for relief related to his six parking spaces. In 2014, for the first time, he claimed shared rights to the remaining eight commercial parking spaces. It was error for the trial court to give Cotrupi such additional rights when the deed and course of conduct show that Cotrupi has no such rights. 7

11 STANDARD OF REVIEW The trial court proceedings involved a hearing that consisted of arguments of counsel with the Appellant testifying. December 2014 Order at 2, n.1. The plaintiffs also submitted affidavits. The Appellant now challenges rulings of law based on several exhibits before the Court. This Court has described its general standard of review as follows: We note the general rule that we will not disturb the trial court's findings of fact or rulings of law unless they are unsupported by the evidence or erroneous as a matter of law. In re Certain Scholarship Funds, 133 N.H. 227, 232, 575 A.2d 1325, 1328 (1990). Where, as here, the case was decided on a stipulated factual record, however, our standard of review is broadened. As all the documents are available for our perusal, the trial court was in no better position to decide the case than are we. Masse v. Commercial Union Ins. Co., 136 N.H. 628, 632, 620 A.2d 1041, 1044 (1993). McGovern v. Sec'y of State, 138 N.H. 128, 129, 635 A.2d 498, 499 (1993). 8

12 ARGUMENT THE TRIAL COURT ERRED IN RULING THAT GOVERNANCE OF THE CONDOMINIUM UNIT OWNERS ASSOCIATION IS CONTROLLED BY R.S.A. 292 RATHER THAN R.S.A. 356-B. The trial court erred in ruling that the VSHCA is governed by R.S.A. 292 to the exclusion of R.S.A. 356-B. To reach its ruling, the trial court had to make two subsidiary findings, both of which are contrary to law. First, the trial court had to find that New Hampshire condominium associations can shed R.S.A. 356-B s mandatory provisions and protections. Second, the trial court had to find that condominium associations, by incorporating, shed their existing governance documents, even when those documents specifically mandate that they shall remain operative in the event of incorporation. The two ancillary findings jointly and severally require reversal. This argument addresses each subsidiary finding in turn. A. As a Matter of Law, the Condominium Act Applies to All Condominium Associations. Condominium Associations cannot discard R.S.A. 356-B s provisions. The Condominium Act shall apply to all condominiums and to all condominium projects. R.S.A. 356-B:2, I. When a condominium s declaration is recorded, the declarant must simultaneously record a set of bylaws providing for the self-government of the condominium by an association of all the unit owners. R.S.A. 356-B:35, I. The bylaws dictate whether or not the unit owners association shall elect a board of directors. R.S.A. 356-B:35, II. The Condominium Act specifically allows that [t]he unit owners association may be incorporated. Id. The Act does not state that R.S.A. 356-B may be supplanted by other corporation statutes. Compliance with both the Condominium Act and the condominium instruments is mandatory for the traditional cast of persons and entities involved in a condominium. R.S.A. 9

13 356-B:15, I ( The declarant, the board of directors, every unit owner, and all those entitled to occupy a unit shall comply with all lawful provisions of this chapter and all provisions of the condominium instruments. ). Case law does not impair the Condominium Act s mandatory application. The trial court relied on the case of Hobson v. Hilltop Place Community Ass n, 122 N.H (1982) for the proposition that associations can discard R.S.A. 356-B s provisions. See December 2014 Order at However, the Hobson Court did not expressly or impliedly abrogate the Condominium Act s mandatory application to condominiums and their associations. In the Hobson case, there were six individual condominium structures created in accordance with the Condominium Act s predecessor, R.S.A. 479-A. Hobson, 122 N.H. at See also R.S.A. 356-B:2, I (Condominium Act supersedes R.S.A. 479-A). Each condominium structure, or cluster, had its own declaration, bylaws and owner s association. Id. A separate, distinct non-profit corporation was established under R.S.A Id. The non-profit owns and manages community property consisting of roads which connect the clusters, a recreational building, and lands interspersed between the clusters. Id. The clusters delegated some functions to the non-profit, such as maintaining common areas. Id. at Thus, six condominium associations co-existed with a separate non-profit corporation that had two purposes: 1) manage its own community property; and 2) by the delegation of the condominium associations, manage the six condominiums common areas. Id. For its first function, the non-profit assessed equally against each unit owner in each of the six clusters. Id. at For its second function, the non-profit assessed each cluster equally. Id. at Each cluster, in accordance with the Condominium Act s predecessor, raised the funds to pay the 3 The December 2014 Order, and the trial Court s Order on Roberge s Motion for Reconsideration are appended to this Brief and do not appear in the Appendix. 10

14 nonprofit by requiring unit owners to contribute sums proportionate to their ownership interests. Id. at The Hobson parties dispute arose over how the nonprofit assessed certain equipment and working surplus capital expenses. Hobson, 122 N.H. at The Supreme Court applied the Condominium Act s predecessor statute to the clusters, but R.S.A. 292 to the non-profit. Hobson, 122 N.H. at The Court observed that the plaintiff unit owners were all members of the same cluster that, in its declaration and by-laws, had delegated duties to the nonprofit. Id. at The Court found that the nonprofit s role in maintaining the common area was thereby akin to that of an independent contractor[....] Hobson, 122 N.H. at 1027 This matter is wholly distinguishable from the Hobson case. The Condominium Act now applies to condominiums, not R.S.A. 479-A, and the Act s application is mandatory. R.S.A. 356-B:2, I. Unlike the clusters in Hobson, the VSHCA did not delegate responsibilities to a nonprofit. Rather, the VSHCA incorporated itself and its bylaws specifically state that the bylaws are established in accordance with the Condominium Act and, if the association incorporates, the bylaws shall still serve as the bylaws of the corporation. Articles of Agreement (A-163); VSHCA Bylaws, Art. I, 2 (A-147) ( These By-Laws are intended to comply with the requirements of New Hampshire Revised Statutes Annotated Chapter 356-B. ); Id., Art. II 1 (A-148) ( The Association may be incorporated as a New Hampshire voluntary corporation and these By-Laws shall serve as the By-Laws of said corporation. ). Unlike the Hobson case, there is no independent contractor. Rather, the VSHCA, which must be governed by the Condominium Act, incorporated itself. The trial court erred in relying on Hobson to vary from the Condominium Act s mandatory provisions. 11

15 To rule that incorporated condominium associations have, de jure, jettisoned the Condominium Act would result in the fundamental destabilization of countless condominiums. It is axiomatic that the Condominium Act applies to all New Hampshire condominiums. Moreover, it is a common practice for condominiums to exercise their right to incorporate under the Condominium Act. The trial court s ruling, if upheld, would upend those generally understood precepts and instead create two classes of New Hampshire condominium: those whose associations have not incorporated and are governed by the Condominium Act, and those whose associations have incorporated and are now governed by a wholly distinct statutory scheme. That schism would merely depend on whether a given association exercised its right to incorporate under the Condominium Act. Such a ruling would cause, among other effects, a dangerous sea-change in voting power and governance across countless incorporated condominium associations. The Hobson Court did not intend a breakup of condominium law, and the current Condominium Act does not allow it. Since the Condominium Act s language is mandatory, the trial court erred in ruling that a condominium association that incorporated has discarded the Act. To rule otherwise would invalidate the Act s mandatory application and create disarray across countless, unwitting condominium associations. This Court should reverse the trial court s ruling. B. The VSHCA s Declaration and Bylaws Import the Condominium Act. Even if the VSHCA could be governed by R.S.A. 292, the VSHCA s By-Laws prevent it. The trial court, after ruling that the VSHCA was a nonprofit organization not governed by the Condominium Act, ordered a meeting of the VSHCA to elect a board of directors. December 2014 Order at 9. The trial court did not reference and gave no credence to the VSHCA s bylaws, which amounted to legal error. See generally id. 12

16 The VSHCA Bylaws, formally styled as the Village Square of Hampton Condominium By-Laws, were executed by the Declarant on July 10, The VSHCA Bylaws predate the VSHCA s incorporation, which occurred when Articles of Agreement were filed on February 27, Articles of Agreement (A-163). The VSCHA Bylaws were: adopted pursuant to the New Hampshire Revised Statutes Annotated Chapter 356- B, and these By-Laws shall apply to the Village Square of Hampton Condominium as described and created by the Declaration and to all present and future owners, tenants and occupants of any Unit in the condominium and to all other persons who shall at any time use the condominium or any portion thereof. VSHCA Bylaws, 1 (A-147). The VSHCA Bylaws are intended to comply with the requirements of New Hampshire Revised Statutes Annotated Chapter 356-B. VSHCA Bylaws, Art. I, 2 (A-147). The VSHCA Bylaws afford the VSHCA all of the powers and responsibilities assigned by the New Hampshire Condominium Act, RSA 356-B, as amended from time to time or any successor statute. Id., Art. III, 1 (A-150). The Bylaws 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. Id., Art. II, 1 (A-148). The VSHCA s Bylaws mandate that [e]ach Unit shall be entitled to one vote. Id., Art. II, 2 (A-148). The VSHCA s Bylaws establish four grounds for reversal. First, the Bylaws demonstrate that the VSCHA always intended to function operate under the Condominium Act, which the trial court ignored. Compare December 2014 Order at 7-8 ( The Court concludes that the Village Inn at Hampton is governed as a nonprofit corporation, rather than a condominium, for the relatively straightforward reason that it chose to be so. ) with VSHCA Bylaws, 1 (A-147) (Bylaws intended to comply with Condominium Act) and id., Art. II, 1 (A-148) (VSHCA s Bylaws shall govern even in event of incorporation). Second, the VSCHA Bylaws, by their own 13

17 terms, serve as the bylaws of a corporation, should the VSCHA incorporate, which means the corporation is governed by bylaws promulgated in accordance with R.S.A. 356-B, not R.S.A Compare, December 2014 Order (failing to apply VSCHA s Bylaws to incorporated association) with VSCHA Bylaws, Art. II, 1 (A-148) (VSCHA s Bylaws shall govern in the event of incorporation). Third, even if the corporation only imported the VSCHA s Bylaws voting provisions, each unit has one vote at the corporation s meetings. Compare December 2014 Order at 9 ( Each member shall have one vote not one vote per unit) with VSCHA Bylaws, Art II, 2 (A-148) ( [e]ach Unit shall be entitled to one vote. ). Fourth, the Bylaws do not provide for a Board of Directors, yet the Court has imposed one. Compare VSCHA Bylaws (omitting reference to Board of Directors) 4 with December 2014 Order at 7 ( nonprofit corporation will generally be governed by a board of directors. ) and id. at 9 (ordering VSCHA to elect five directors). Each of the four grounds requires reversal because each compels a ruling that the VSCHA is governed, at least in relevant part, by the Condominium Act. 4 Pursuant to R.S.A. 356-B:35, II, each condominium association decides in its bylaws whether to have a board of directors. Therefore, the VSCHA acted within its powers in deciding not to have a board of directors. 14

18 THE TRIAL COURT ERRED IN RULING THAT ONE COMMERCIAL UNIT HAS SIX EXCLUSIVE PARKING SPACES IN ADDITION TO EIGHT SPACES IN COMMON WITH THE OTHER COMMERCIAL UNIT. The trial court erred in ruling that one of two commercial condominium units now has the exclusive right to six parking spaces in addition to sharing eight spaces with the appellant s commercial unit. The condominium s Declaration allocated fourteen parking spaces to be shared by the condominium s two commercial units. See Condominium Site Plan (A-119). The fourteen spaces were designated as limited common area, and fit the Condominium Act s definition of limited common area. R.S.A. 356-B:3, XX. That allocation changed with Cotrupi s deed. After the Declaration was recorded, Cotrupi negotiated for and received a Condominium Unit Warranty Deed to Unit 102, a commercial unit, which deed was recorded on April 19, Condominium Unit Warranty Deed (A ). The deed stated in relevant part: Id. 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 plan entitled, As-Built Village Square of Hampton Condominium Site Plan Tax Map 160, Lot 17, 428 Lafayette Road, Hampton, NH for Village Square of Hampton, LLC, to be recorded in the Rockingham County Registry of Deeds. While Cotrupi s deed references an amended site plan, no such plan has ever been recorded and no evidence was submitted to the trial court that it ever existed. See Def. s Hearing Mem. on Comm. Unit Owner at 2 (A-117) ( No such referenced plan has ever been recorded, or to Defendant s knowledge, ever existed. ). The parties attended a hearing on November 1, By Order dated December 6, 2013, the trial court ordered that Cotrupi is entitled to have the amended site plan recorded and the 6 spaces designated as his alone. Order on Plf. s Mot. to 15

19 Reconsid./Clarify (McHugh, J.) (noticed Dec. 6, 2013) (A-89). Since no amended site plan existed, Cotrupi took the original site plan, blackened out the reference to Unit 101 the Appellant s commercial unit on six parking spaces, and recorded it. Def. s Hearing Mem. on Comm. Unit Owner at 2 (A-117). By recording a marked-up, purported Amended Site Plan, Cotrupi, claimed rights to the six exclusive parking spaces and, for the first time, an undivided one-half interest in the remaining eight parking spaces. See Purported Amended Site Plan (removing references to Roberge s Unit 101 on six spaces and leaving reference to both commercial units on eight remaining commercial parking spaces) (A-121). This was the first time Cotrupi made such a claim. Roberge objected. Def. s Obj. to Pl. s Case Status and Request for Further Relief (A ). The trial court agreed with Cotrupi, finding that the Appellant failed to prove why the Appellant s commercial unit should have exclusive rights to the remaining eight parking spaces. Order on Mot. for Reconsid. at 6. The trial court reversed the burden. Cotrupi obtained a deed that varied from the original site plan, obtaining the right to six parking spaces. His deed was recorded April 19, In the first round of litigation in this matter, Cotrupi asserted a right to six parking spaces, which was granted. In this second round of litigation, he asserts a right to the remaining eight parking spaces, which is in error. The question requires interpretation of Cotrupi s deed. This Court has defined its standard of review in interpreting a deed as follows: The proper interpretation of a deed is a question of law for this court. Motion Motors v. Berwick, 150 N.H. 771, 775, 846 A.2d 1156 (2004). As a question of law, we review the trial court's interpretation of a deed de novo. Mansur v. Muskopf, 159 N.H. 216, 221, 977 A.2d 1041 (2009). 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 that time. Thurston Enterprises, Inc. v. 16

20 Baldi, 128 N.H. 760, 765, 519 A.2d 297 (1986). We base our judgment on this question of law upon the trial court's findings of fact. Arcidi v. Town of Rye, 150 N.H. 694, 701, 846 A.2d 535 (2004). 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. See Flanagan v. Prudhomme, 138 N.H. 561, 566, 644 A.2d 51 (1994). Appletree Mall Associates, LLC v. Ravenna Inv. Associates, 162 N.H. 344, 347, 33 A.3d 1097, 1099 (2011). In this case, Cotrupi s deed references an amended site plan that was not produced to the trial court and may never have existed. Absent that site plan, 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. Without an amended site plan, it is impossible to determine the deed s intent from its four corners. Since the deed is unclear and ambiguous, it is appropriate for the Court to consider extrinsic evidence. Cotrupi s course of conduct following the conveyance is instructive. On April 19, 2007, Cotrupi recorded the deed and used the six parking spaces as his own. See supra at (discussing Cotrupi s course of conduct). Cotrupi did not lodge a claim to any other parking rights beyond his six commercial spaces until the 2014 litigation, in which his purported Amended Site Plan allocated a shared right to the remaining eight commercial parking spaces. See id. While the issue of parking was raised before the trial court in 2013, Cotrupi s first mention of some continuing right to the remaining eight commercial spaces was not raised until the 2014 litigation. See supra at 16 (discussing Cotrupit raising issue for first time). Cotrupi s course of conduct for more than seven years supports a finding that Cotrupi s deed intended to convey exclusive use to six parking spaces without any shared use of the remaining eight parking spaces. The trial court erred in ruling that Cotrupi s unit had six exclusive parking spaces in addition to eight additional spaces in common with the other commercial unit. 17

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