September 6, 2005
Connecticut Court: Rule clarification or amendment?
THOMAS P. WELDY ET AL. v. NORTHBROOK CONDOMINIUM ASSOCIATION, INC., ET AL.(AC 25465)
On June 27, 2003, the board, by letter, informed the condominium’s owners and residents of ‘‘new regulations to the pet rules.’’ The board cited the previously quoted language from subsection 9 (e) of the declaration and stated that the word ‘‘leash’’ was not defined. It further noted ‘‘instances where pets have caused injury to other pets’’ and the board’s ‘‘opinion [that] leashes that exceed twenty feet in length do not permit owners to control their dogs sufficiently to ensure the safety of other pets and/or unit owners.’’ According to the letter, the board, therefore, had adopted an ‘‘additional clarification pertaining to pets.’’ The ‘‘clarification’’ provided in relevant part that ‘‘[l]eashes or comparable restraints for dogs, cats or household pets shall not exceed 20 feet in length.’’
The plaintiffs own a nine and one-half year old black Labrador retriever. Prior to June 27, 2003, the plaintiffs played ball and Frisbee with and otherwise exercised their dog in a common area behind their unit. To do so, they used a leash that was seventy-five feet in length. On July 28, 2003, the plaintiffs filed this action, seeking to enjoin the defendants from enforcing the purported clarification and requesting a finding that the clarification was made without legal authority, is illegal and is of no force or effect. After the plaintiffs’ motion for a temporary injunction was denied, both parties filed motions for summary judgment. After a hearing, the court, in a memorandum of decision dated May 4, 2004, granted the defendants’ motion and denied the plaintiffs’ motion. The court agreed with the defendants that the twenty foot leash requirement constituted a clarification of an existing rule in the declaration rather than an amendment to the rules and, therefore, that the board had not exceeded its authority. It considered the board’s action to have been taken properly pursuant to subsection 9 (l) of the declaration, insofar as it ‘‘implement[ed] the intent contained in [subsection 9 (e)] that animals be ‘restrained animals.’ ’’ This appeal followed.
The Appeals Court reversed citing "We further are not persuaded that the defendants’ characterization of the board rule as a ‘‘clarification’’ of an ambiguous provision is apt. They did not implicate leash length or result from any owner confusion over the meaning of the term ‘‘leash.’’ As such, the board’s rationale that the rule change was a clarifying response to the incidents is questionable. Moreover, we believe that the meaning of the term ‘‘leash’’ is commonly understood and, further, that it is equally well known that leashes exist in varying lengths. The board rule did not clarify the meaning of ‘‘leash,’’ but instead specified a particular subset of leashes as acceptable. We conclude that the board did not clarify an ambiguous declaration provision, but rather amended an unambiguous provision."
Posted by joewest at 11:26 AM
June 14, 2005
CO: Subdivision can amend covenants to create common interest community
In 1995, a majority of the members of the Evergreen Highlands homeowners association voted to amend the subdivision’s protective covenants. The amendment added a new article to the covenants which: (1) required all lot owners to be members of the association; (2) allowed the association to assess mandatory dues against all lot owners to pay for the maintenance of common areas of the subdivision; and (3) granted the association the power to impose liens on those lots whose owners failed to pay their assessments. Respondent, a lot owner in the subdivision since 1986, filed suit challenging the validity of the 1995 amendment.
The trial court held that the 1995 amendment was valid and binding on all lot owners in the subdivision. The court of appeals reversed, holding that the modification clause of the original Evergreen Highlands protective covenants allowed only for the modification of existing covenants, but not for the addition of a wholly new covenant.
The supreme court now reverses and remands. The court holds that the addition of the new article to the covenants falls within the permissible scope of the modification clause of the original Evergreen Highlands covenants. The court also holds that, even in the absence of an express covenant, the declarations for Evergreen Highlands were sufficient to create a common interest community by implication with the concomitant power to impose mandatory dues on lot owners to pay for the maintenance of common areas of the subdivision. The supreme court accordingly remands the issue to the court of appeals with directions to return it to the trial court for calculation of Petitioner’s damages in a manner consistent with its opinion. (Full Opinion)
Posted by joewest at 10:40 AM