Forest Properties, Inc. v. Amity Holdings, Inc. (2010)

MEMORANDUM OF DECISION

This is a quiet title action which arises out of the acquisition by the plaintiff of certain real property in the City of New Haven by way of a tax foreclosure deed (committee deed).

This court heard the matter in a bench trial on November 13, 2009.   Appropriate trial and reply briefs have been filed by each party.

The court finds the following facts and reaches the following conclusions.   In 2002 the defendant owned two parcels of land in New Haven.   The first parcel was listed in the tax assessor's records as “0 Amity Road, Tax Assessor's Map 431, Block 1194, Lot 00201.”   This property is referred to as Lot 201 in this memorandum.   The second parcel of real property owned by the defendant abutted Lot 201 and was described in the tax assessor's records as “Seneca Road, Tax Assessor's Map 433, Block 1194, Lot 00202.”   This property is referred to as Lot 202 in this memorandum and is the property which is the subject of the dispute in this case.   The assessor's records reflect that Lot 201 is approximately 12.60 acres with an appraised value of $482,000.   Lot 202 is approximately one-half an acre with an appraised value of $93,600.   There appears to be no metes and bounds descriptions of lots 201 and 202 in the City of New Haven land records.

The two parcels together are generally described as “The Mountain” and are located on the west side of a large developed commercial piece of property known as the Amity Shopping Center which is owned by a non-party, Wellmakara LLC, an entity affiliated with the plaintiff.

Prior to 2002 the City had recorded several tax liens against Lot 201, and in November 2002 the City filed a tax foreclosure action seeking to foreclose the tax liens on Lot 201.   The Assessor had assessed Lots 201 and 202 as separate lots, both owned by the defendant, with separate tax bills.   The tax foreclosure action was against Lot 201.   There is no evidence concerning outstanding taxes due on Lot 202.   In connection with the tax foreclosure action the City also filed a lis pendens.   Attached to the lis pendens as Exhibit A was a metes and bounds legal description which was alleged to be a description of the real estate affected by the tax foreclosure action.

The tax foreclosure complaint filed against the defendant, which was returnable to court on December 17, 2002, contained seven counts alleging unpaid taxes due on the assessment lists of 1996 though 2002.   The first paragraph of each count alleged that the taxes were due on property “situated in the City of New Haven, as is more particularly bounded and described in Schedule A hereto annexed, said premises known as 0 Amity Road, New Haven, Connecticut (PREMISES) and being shown as Assessor's Map 431, Block 1194 at lot 00201.”   Attached to the complaint was the same metes and bounds description as was attached to the lis pendens.

A judgment of foreclosure by sale was entered by the court and a sale was ordered for February 5, 2005.   The plaintiff was the successful bidder, paid a deposit of $20,500.00, and executed a bond for deed on the day of the sale.   The bond for deed had the same reference in the body of the deed to Lot 201 as did the foreclosure complaint, and also referred to Exhibit A annexed hereto and made a part hereof.   The attached Exhibit A contained the metes and bounds description from the lis pendens.   However, the added last paragraph of this Exhibit A stated “The property is more specifically shown as bounded and described at the New Haven Assessor's Office as Map 431, Block 1194, Lot 00201.”

The committee deed, dated February 7, 2005 and conveying the property to the plaintiff, was approved by Judge Barry Pinkus on March 7, 2005.   The body of the deed refers to the property which was the subject of the judgment of foreclosure by sale as being “0 Amity Road, Map 431, Block 1194, Lot 00201, New Haven” and this description is repeated in the description of the property being sold to the plaintiff.   The deed also makes the same reference to Exhibit A as was contained in the bond for deed, and has attached the same Exhibit A as did the bond for deed.   The committee deed also states that “Said premises are conveyed subject to (a) ․ (d) such state of facts that an accurate survey or personal inspection of the premises would disclose.”

After the committee deed was recorded on March 30, 2005 and prior to May 5, 2005, it was discovered that the metes and bounds description contained in the committee deed, and in the other documents, included property in excess of Lot 201.   The description included all or a part of the Amity Shopping Center and Lot 202.   The plaintiff in the instant case then filed motions in the tax foreclosure case to open the judgment and for approval of a “correcting committee's deed.”

On May 23, 2005 counsel for the parties in the instant case appeared at the foreclosure short calendar before Judge Barry Pinkus.   They were there in connection with the motions to open judgment and for a correcting deed.

Judge Pinkus was attempting to find out why the party which had bought the foreclosed property at the foreclosure sale now wanted to file a “correcting deed.”   Attorney Mandich, counsel for the plaintiff in this quiet title action, who had filed the motion to file a correcting deed, explained to the court that after the plaintiff had recorded the committee deed and was in the course of obtaining title insurance it was discovered that the metes and bounds description of the property conveyed by the committee deed included either all of or a portion of the Amity Shopping Center.   The purpose of the correcting deed was to remove the shopping center from the description in the committee deed.   Attorney Hurwitz, representing the defendant in the foreclosure case and in this quiet title action, objected, claiming that it was not clear that the new description did not include Lot 202 “that's still owned by Amity Holdings, no one will dispute that.   They have not foreclosed that portion.”   Mr. Mandich responded that when they had the title searched that “attached to that search were the tax bills in question, the tax parcel that was the subject of the foreclosure action, which was, I believe, parcel number 201.   He's talking about parcel number 202.   As far as I understand that parcel is not part of the legal description that's contained.”   It is obvious from the foregoing conversation that Attorney Hurwitz was correct in that the new description being suggested still included Lot 202 owned by his client, the defendant, and it is also clear that counsel for the plaintiff believed, erroneously, that the new description did not include lot 202.   Most significantly, it is obvious from the remarks of Mr. Mandich that the plaintiff knew that lot 202 was not included in the tax foreclosure case and should not be included in the committee deed.

No further action was taken with respect to the motions.   On January 12, 2006 a “correcting deed” from the plaintiff purporting to transfer to Wellmakara LLC a portion of the property described by its metes and bounds from the February 7, 2005 committee deed to the plaintiff, was recorded on the City of New Haven land records.   The property being transferred from the committee deed was the Amity Shopping Center.   The plaintiff acknowledged in the correcting deed that it was never intended that it receive an interest in the property being transferred by the correcting deed, and that no such interest was ever created.

It is clear that what started out as a tax foreclosure case against Lot 201 on the tax assessor's maps has resulted in this action by the purchaser of Lot 201, the plaintiff, to quiet title to Lot 202, which was not included in the tax foreclosure complaint and was never intended to be foreclosed.   The confusion is caused by the metes and bounds description attached to the various documents referred to earlier.   The metes and bounds included Lot 201 and Lot 202, both owned by the defendant, and a portion of the Amity Shopping Center, owned by Wellmakara LLC. This description and the several references to the tax assessor's maps are inconsistent because they each describe a different tract of land.   The plaintiff took care of the problem with respect to the inclusion in the committee deed of a portion of the Amity Shopping Center in the metes and bounds description by issuing a correcting deed removing that property from the committee deed.   That the Amity Shopping Center is owned by a corporation which created and controls the plaintiff corporation might explain why that problem was so easily solved.

The plaintiff and the defendant each claim title to the property included in tax assessor's lot 202.   As stated by the plaintiff in its post-trial memorandum of law, “This is a classic case where the court is called upon to settle a dispute to competing claims of title to the same real estate and thus an action to quiet title lies.”

The Appellate Court has clearly enunciated the law concerning the construction of deeds.  “Our basic rule of construction is that recognition will be given to the expressed intention of the parties to a deed ․ and that it shall, if possible, be so construed as to effectuate the intent of the parties ․ In arriving at the intent expressed ․ in the language used, however, it is always admissible to consider the situation of the parties and the circumstances connected with the transaction, and every part of the writing should be considered with the help of that evidence ․ In addition, when a deed sets forth two different descriptions of the property to be conveyed, the one containing the less certainty must yield to that possessing the greater, if apparent conflict between the two cannot be reconciled ․”

“In the construction of a deed or grant, the language is to construed in connection with, and in reference to, the nature and condition of the subject matter of the grant at the time the instrument is executed, and the obvious purpose the parties had in view ․ [I]f the meaning of the language contained in a deed or conveyance is not clear, the trial court is bound to consider any relevant extrinsic evidence presented by the parties for the purpose of clarifying the ambiguity ․”

“Furthermore, [a] reference to [a] map in [a] deed, [for a more particular description, incorporates [the map] into the deed as fully and effectually as if copied therein ․ [T]he identifying or explanatory features contained in maps referred to in a deed become part of the deed, and so are entitled to consideration in interpreting the deed as though they were expressly recited therein.”  (Citations omitted;  internal quotation marks omitted.)  Schwartz v. Murphy, 74 Conn.App. 286, 291-92, 812 A.2d 87 (2002), cert. denied, 263 Conn. 908, 819 A.2d 841 (2003);  see also Coughlin v. Anderson, 270 Conn. 487, 508, 853 A.2d 460 (2004).

“Finally, we note that ‘[t]he fact that servitudes are intended to bind successors to interests in the land, as well as the contracting parties, and are generally intended to last for an indefinite period of time, lends increased importance to the writing because it is often the primary source of information available to a prospective purchaser of the land.   The language should be interpreted to accord with the meaning an ordinary purchaser would ascribe to it in the context of the parcels of land involved.   Searching for a particular meaning adopted by the creating parties is generally inappropriate because the creating parties intended to bind and benefit successors for whom the written record will provide the primary evidence of the servitude's meaning.’   1 Restatement (Third), Property, Servitudes § 4.1, comment (d), pp. 499-500 (2000).”  Dent v. Lovejoy, supra, 85 Conn.App. 463-64.  Simone v. Miller, 91 Conn.App. 107-10 (2005).

The facts of this case, as found by this court, are that the City instituted a tax foreclosure action for a seven-year accumulation of tax liens representing unpaid taxes due on a specific property described as lot 201 and as shown on a specifically described assessor's map.   Attached to the tax foreclosure complaint was an incorrect metes and bounds description which included not only lot 201, but property known as lot 202, also owned by the defendant, and at least a portion of a valuable commercial enterprise known as the Amity Shopping Center, owned by a non-party to the action.

The tax foreclosure case eventually terminated when the plaintiff purchased the property being foreclosed at a foreclosure sale, and received a committee deed with the same description of the property, lot 201, along with the incorrect exhibit A. We now have a quiet title action wherein the plaintiff is asking this court to find that it is the rightful owner of lot 202 based on the language of the incorrect exhibit A. The plaintiff is not asking the court to declare that it is also the owner of a portion of the Amity Shopping Center, which has been returned to its rightful owner, an entity which controls the plaintiff.

The plaintiff claims in its brief that the metes and bounds should be found to be controlling and therefore that lot 202 should be quieted in the plaintiff.   The court does not agree.   The only property being foreclosed was lot 201.   The committee deed is not clear in view of the conflicting descriptions of the property being conveyed.   A review of the relevant extrinsic evidence causes the court to conclude that the property being conveyed was limited to lot 201 on the tax assessor's map 331.   In addition, the contents of the assessor's map 331 are to be incorporated into the committee deed in order to properly interpret the deed, and the contents of the map support the court's conclusion.

The plaintiff also claims that equitable considerations support its claim to lot 202.   The first indication that there was a problem with the metes and bounds description is at the hearing before Judge Pinkus on May 23, 2005.   As indicated earlier, this court believes that the plaintiff was aware that lot 202 was not involved in the foreclosure case, that the metes and bounds description should not include lot 202, and that the new description set forth in the correcting deed did not include lot 202.   The plaintiff refers in its brief to the plaintiff as being an innocent third-party buyer who was led to believe that it was purchasing the entire Mountain Parcel.   The court does not agree that the plaintiff was an innocent third party.   The plaintiff knew from its title search that the tax bills related only to lot 201, and that the assessor's map referred to in all of the various documents clearly reflected the location of lots 201 and 202.

The plaintiff also claims that the claim by the defendant concerning the property identified in the committee deed should be barred by the doctrines of collateral estoppel, res judicata and laches.   These claims are without merit.

The court finds that the plaintiff has failed to prove by a fair preponderance of the evidence that it is the owner of the disputed parcel of real estate.   The court finds that the defendant has proven by a fair preponderance of the evidence that it is the rightful owner of the disputed parcel of real estate.

A judgment may enter in favor of the defendant that it is the owner of real property described in this memorandum of decision as Lot 202, and further described in the City of New Haven tax assessor's records as “Seneca Road, Tax Assessor's Map 433, Block 1194, Lot 00202.”

William L. Hadden, Jr., JTR

Hadden, William L., J.T.R.