II v. Robert A. Burnham (2010)

MEMORANDUM OF DECISION

The plaintiff, Village II at Glen Lochen (“Village II”) condominium association brings this action to quiet title of a garage appurtenant to a condominium unit included within its association.¹  The defendant Robert Burnham is a former owner of a condominium within the association who claims ownership of the garage by virtue of a warranty deed dated December 4, 1992.   The property in question is “Garage 38,” which was declared as a limited common element in 1985 by Village Associates, the developer of Village II and declarant of the condominium.   A court trial was held on February 11, 2010.   The defendant was represented at the time of the purchase of the garage, but was self-represented at trial.   Although he filed a document denominated as a counterclaim, the defendant failed to present any evidence at trial in support of his allegations.   Therefore, the counterclaim is dismissed.   The parties have been in a dispute over the errant garage for approximately fifteen years during which time the defendant has maintained possession.

The following facts as they relate to the history of Garage 38 are essentially undisputed:  On July 16, 1985, Village Associates conveyed, by modified warranty deed, property known as Unit 6, Whitney Lane, Glastonbury, Connecticut, together with the exclusive right to use Garage 38.   On August 25, 1989, the then owner of Unit 6, conveyed the property with the appurtenant garage, by warranty deed, to Maureen Shannon.²  (Exhibit 7.) On October 15, 1992, Shannon conveyed her interest in Garage 38 only, by quitclaim deed, to Donna Goss (formerly known as Donna Stark).  (Exhibit 11.)   At the time of the conveyance, Goss was no longer a unit owner at Village II. Thereafter, on December 4, 1992, Goss conveyed Garage 38, by warranty deed, to Robert Burnham who also owned Unit 7, Whitney Lane. (Exhibit 12.)   In a purported amendment to the declaration and bylaws of Village II, dated September 9, 1992, Village II, along with Village Associates, approved the transfer of Garage 38 to Burnham and reassigned Garage 38 to Unit 7. (Exhibit 10.)   Previously, at the board of directors meeting held on February 8, 2000, the Village II at Glen Lochen Condominium Association (“Village II association”), decided that it “would not pay to have the bylaws amended to reflect a change allowing individual garage sales separate from the original owning unit.”  (Exhibit 14.)   Thereafter, on September 24, 1997, Burnham lost his interest to Unit 7 pursuant to a foreclosure action.   Burnham has continued to occupy Garage 38 since October 15, 1992 and claims ownership.   Because all the foregoing deeds have been recorded, the town of Glastonbury land records show Burnham as the owner of Garage 38.

In its amended complaint, the plaintiff claims that according to the declaration of condominium and bylaws, as amended (“the declaration”), all the detached garages, including Garage 38, as well as storage areas, are limited common elements owned by the members of the Village II association as tenants in common and “the right of use is reserved as an appurtenance to a particular Unit or Units as described in the ․ warranty deeds.”  (Exhibit 2, 3 and 5).   The plaintiff further alleges that the declaration provides that no unit owner may execute any deed, mortgage or other instrument, transferring his unit, without including any appurtenant interest, such as Garage 38, and that any such transfers of a unit are deemed to include an appurtenant interest even though omitted;  and finally, that all the unit owners are bound by its provisions.   Accordingly, the plaintiff claims that Shannon had no right to sell Garage 38 to Goss separate from her unit (Unit 6) and Goss had no right to convey Garage 38 to Burnham and that Village II is the rightful owner of the property.

The only witness at trial was Attorney Gregory McCracken, an attorney specializing in community association law whose practice has represented over 300 common interest communities throughout Connecticut.   His credentials in condominium law are unassailable.³  In preparation for his testimony, he reviewed the declaration of condominium including its bylaws and amendments, all the deeds, and the approval of Village II and Village Associates of the transfer of Garage 38 by Goss to Burnham in 1992, comprising all the exhibits in the case.   Along with the Condominium Act of 1976, General Statutes § 47-68a, et seq., in combination with the Common Interest Ownership Act, General Statutes § 47-216, the foregoing documents were sufficient for him to formulate an opinion as to the ownership of Garage 38.   McCracken opined that Garage 38 is a limited common element, that is, an element that fewer than all the owners have right to.   Stated simply, McCracken testified as follows:  The allocation and assignment of the common elements, i.e., the detached garages, were made at the time of the initial warranty deed for Unit 6 from the owner.   As of that time, Unit 6 was conveyed in fee with appurtenances which included the exclusive right to use Garage 38.   Therefore, although the units themselves were owned in fee, the garages assigned to each unit, were not.   Once allocated, the garage is exclusively assigned to the unit and goes with the unit, whether or not it is specifically recited in a deed transferring ownership.   The fee interest in all the common elements, including limited common elements, is owned by all the unit owners as tenants in common.   The condominium documents satisfy all the requirements of state law regarding common interest ownership.   Neither the declaration, nor the statute allow separate conveyance of a garage or any common element appurtenant to Unit 6 once allocated.   Since the original allocation set forth in the condominium documents, Garage 38 has not been reallocated.   Therefore, the owner of Unit 6 has the exclusive right to use Garage 38.   A unit owner may lease a garage but cannot transfer it by deed or otherwise.   The purported amendment to the declaration (Exhibit 10) reallocating Garage 38 from Unit 6 to Unit 7 was not allowable under the statute or the condominium documents and is of no effect.   Therefore, fee ownership of Garage 38 remains in the owners or members of Village II as tenants in common and not Burnham.

Based on the foregoing evidence which the court finds both credible, persuasive and unchallenged, the plaintiff has established by a preponderance of the evidence that title should be quieted in its favor, pursuant to General Statutes § 47-31.⁴  However, the entry of judgment on the issue of title does not resolve all of the issues between the parties.   First, as previously noted, the defendant is still in possession of the disputed garage.⁵  Secondly, an action to quiet title is equitable in nature.   The plaintiff, albeit during an earlier generation of leadership, is largely responsible for the predicament which gave rise to this litigation and which has been perpetuated since Burnham “purchased” Garage 38 from Goss in 1992.   As a result, Burnham expended $4,000 for an interest in the property and, as a result of this court's order, will have nothing to show for it other than possession until such time he is ousted.

“The procedure in an action to settle the title to land under [§ 47-31] has been long and clearly established ․ The essentials of the complaint [are] statements of the plaintiff's ownership in the land described and of its title thereto ․ The action could be maintained against one in whom the land records disclose any interest, lien, claim or title conflicting with the plaintiff's claim, title or interest ․ The claim for relief [calls] for a full determination of the rights of the parties in the land ․ The plaintiff [is] required not only to allege but to prove that its title was so affected by the claims of the defendants as to justify the litigation ․ Finally, the plaintiff [is] required to prevail on the strength of its own title and not on the weakness of its adversary's.”  (Citations omitted;  emphasis added;  internal quotation marks omitted.)  Lake Garda Improvement Ass'n. v. Battistoni, 155 Conn. 287, 293, 231 A.2d 276 (1967).

“Equity does not necessarily mean full compensation to the plaintiffs.   Equity is [j]ustice administered according to fairness as contrasted with the strictly formulated rules of common law ․ The term ‘equity’ denotes the spirit and habit of fairness, justness, and right dealing which would regulate the intercourse of men with men ․ Equity takes into consideration fairness to both the plaintiff and the defendant.”  (Citation omitted;  internal quotation marks omitted.)  Krasowski v. Fantarella, 51 Conn.App. 186, 199, 720 A.2d 1123 (1998), cert. denied, 247 Conn. 961, 723 A.2d 815 (1999).

“Under the broad maxim of equity that ‘he who seeks equity must do equity,’ a court, as a prerequisite to quieting a complainant's title, will usually require the complainant to restore any benefits that he or she has received from the defendant, or to reimburse the defendant for any expenditures that inure to the complainant's behalf.”   65 Am.Jur.2d, Quieting Title § 56 (2001);  see Paton v. Robinson, 81 Conn. 547, 71 A. 730 (1909) (court may grant affirmative relief to the defendant as equity requires).

“It is fundamental that anyone going into equity and asking its aid submits to the imposition of such terms as well-established equitable principles require ․ As a corollary of the maxim that whoever seeks equity must do equity, courts of equity have for a long time granted relief on conditions such as are just and proper and demanded by the exigencies of the circumstances.   Thus, a court of equity has power to make its granting of relief dependent on the performance of conditions by a party litigant if the conditions are imposed in the exercise of a sound discretion and of a character calculated to satisfy the dictates of conscience and to safeguard the public interest.   The court may thus protect and give effect to the rights of one party while awarding relief to the other.”   27A Am.Jur.2d, Equity § 97 (2008).

For example, the Appellate Court upheld a trial court's award of compensation to a defendant landowner who was determined to be holding the land in constructive trust for the plaintiff claimant because the defendant had built improvements on the land.  Gulack v. Gulack, 30 Conn.App. 305, 318, 620 A.2d 181 (1993).  “In an equitable proceeding ․ a trial court may consider all relevant circumstances to ensure that complete justice is done.   This balancing of the equities is a matter for the discretion of the court, and, in reviewing such discretion on appeal, every reasonable presumption is given in favor of its correctness ․ We hold that a court may also determine that a structure voluntarily placed on the land of another may be the subject of compensation to the person constructing it, in an equitable action, if the circumstances warrant it ․ The circumstances warrant such a result if a manifest injustice would otherwise be done.”  (Citations omitted.)  Id., 317-18.

Accordingly, for all the foregoing reasons, the court hereby orders that title be quieted and vested in the plaintiff according to the allocated interests in the common elements as set forth in the most recent table of common element ownership as defined in Exhibit D of the Declaration of Condominium.  (Exhibits 2 and 5.) The court finds that the defendant has no estate, interest or encumbrance on Garage 38, other than possession.   Further, the court finds that the defendant is due compensation under principles of equity and hereby orders the plaintiff to pay the defendant the amount of $4,000.   This order vesting title is conditioned on this payment.   Finally, the plaintiff is hereby ordered to pay its own costs as set forth in its bill of costs.

Peck, J

FOOTNOTES

FN1. This case was originally brought in the Housing Court as a summary process action (HDSP 143981), seeking possession of the premises pursuant to General Statutes 47a-23(a).   The plaintiff thereafter moved to transfer it to the regular civil docket of the Superior Court when it was determined that it was more appropriately an action to quiet title.   The transfer order was signed on November 13, 2007.   Although the plaintiff seeks possession as a remedy in this case the allegations set forth in the amended complaint (filed January 31, 2008), do not support this remedy..  FN1. This case was originally brought in the Housing Court as a summary process action (HDSP 143981), seeking possession of the premises pursuant to General Statutes 47a-23(a).   The plaintiff thereafter moved to transfer it to the regular civil docket of the Superior Court when it was determined that it was more appropriately an action to quiet title.   The transfer order was signed on November 13, 2007.   Although the plaintiff seeks possession as a remedy in this case the allegations set forth in the amended complaint (filed January 31, 2008), do not support this remedy.

FN2. Exhibits 4, 6, 7, 8, and 9 evidence this series of transfers.   Since the only exhibits introduced were by the plaintiff, the designation of “Exhibit _” without a party designation is hereby adopted herein..  FN2. Exhibits 4, 6, 7, 8, and 9 evidence this series of transfers.   Since the only exhibits introduced were by the plaintiff, the designation of “Exhibit _” without a party designation is hereby adopted herein.

FN3. See Exhibit 1, the curriculum vitae of Attorney McCracken..  FN3. See Exhibit 1, the curriculum vitae of Attorney McCracken.

FN4. In pertinent part, General Statutes § 47-31 provides as follows:  “Action to settle title or claim interest in real or personal property. (a) An action may be brought by any person claiming title to, or any interest in, real or personal property, or both, against any person who may claim to own the property, or any part of it, or to have any estate in it, either in fee, for years, for life or in reversion or remainder, or to have any interest in the property, or any lien or encumbrance on it, adverse to the plaintiff, or against any person in whom the land records disclose any interest, lien, claim or title conflicting with the plaintiff's claim, title or interest, for the purpose of determining such adverse estate, interest or claim, and to clear up all doubts and disputes and to quiet and settle the title to the property.   Such action may be brought whether or not the plaintiff is entitled to the immediate or exclusive possession of the property.”.  FN4. In pertinent part, General Statutes § 47-31 provides as follows:  “Action to settle title or claim interest in real or personal property. (a) An action may be brought by any person claiming title to, or any interest in, real or personal property, or both, against any person who may claim to own the property, or any part of it, or to have any estate in it, either in fee, for years, for life or in reversion or remainder, or to have any interest in the property, or any lien or encumbrance on it, adverse to the plaintiff, or against any person in whom the land records disclose any interest, lien, claim or title conflicting with the plaintiff's claim, title or interest, for the purpose of determining such adverse estate, interest or claim, and to clear up all doubts and disputes and to quiet and settle the title to the property.   Such action may be brought whether or not the plaintiff is entitled to the immediate or exclusive possession of the property.”

FN5. Pursuant to § 47-31, an action to quiet title may be brought whether or not the plaintiff is entitled to the immediate possession of the property..  FN5. Pursuant to § 47-31, an action to quiet title may be brought whether or not the plaintiff is entitled to the immediate possession of the property.

Peck, A. Susan, J.