Hatheway Farms Association, Inc. et al. v. LLC (2010)

MEMORANDUM OF DECISION ON ISSUE OF OBLIGATION OF PARTIES TO CONTRIBUTE TO MAINTENANCE AND REPAIR

Factual and Procedural Background

Gideon Way is a private road in Suffield, Connecticut.   The three current landowners whose properties abut Gideon Way are Rockville Bank, Alamin Family Partnership (“Alamin”) and Hatheway Farms Association, Inc.(“Association”), a residential “Planned Community” organized under the Common Interest Ownership Act (“CIOA”).   Association brought this action to determine all parties' respective obligations to pay for the maintenance of Gideon way.

On September 28, 2010, this court, Graham, J., bifurcated the trial and ordered that the court determine the issue of obligation to contribute before any other issues are determined.   Specifically, Judge Graham ordered that the court determine “Whether the plaintiff, Hatheway Farms Association, Inc., and/or the plaintiff Rockville Bank and/or the defendant Alamin Family Partnership, is responsible for a share of maintenance and capital improvement expenses for the portion of Gideon Way running from its access point on Mountain Road to the easternmost curb of Hatheway Drive.”

The parties submitted a Joint Stipulation of Facts in which they stipulated to the deeds by which Rockville Bank and Alamin acquired ownership of their respective properties and to the Declaration by which the Association was created and further stipulated as follows:

5.  Under the Declaration and related documents that created the aforementioned common interest community, all of the remaining land once held by Laureno Enterprises by virtue of a deed from David T. Daniel, dated January 5, 1990 and recorded in Volume 218 at Page 989, containing 14.597 acres, except the two parcels currently owned by Rockville Bank and the Alamin Family Partnership as referenced above, but specifically including what has become known as Gideon Way, is to be transferred to the ownership of the Association (the “Association Parcel”).

6. The Bank Parcel, Alamin Parcel and the Association Parcel share a common predecessor in title, Laureno Enterprises (“Laureno”).

7. In conveying the Bank Parcel and the Alamin Parcel, Laureno burdened its remaining land with easements in favor of the two parcels.

8. The Alamin Family Partnership is responsible for the cleaning, the removal of snow and ice and the maintenance and repair of those premises shown as “Proposed Access Easement In Favor Of Lot 2” on the map referred to in Exhibit A to the deed from Laureno Enterprises to Finlay Properties, Inc., dated July 30, 1996 and recorded in Volume 269 at Page 347 of the Suffield, Connecticut land records.

As set forth in the above Joint Stipulation, Alamin concedes that it is solely responsible for the maintenance and upkeep of the portion of Gideon Way that runs from the easternmost curb of Hatheway Drive to its termination at the Suffield Post Office, located on the Alamin Parcel.   Both Rockville Bank and Alamin deny any responsibility for the maintenance and/or capital improvement expenses for the remaining portion of Gideon Way.

In 1989 Laureno owned a 14.6-acre parcel of land on the south side of Mountain Road (Route 168) in Suffield, Connecticut and planned to develop a commercial office park on that parcel.   Laureno filed a subdivision plan with the Town of Suffield dated November 1989.   The plan was approved and filed with the Town Clerk on March 20, 1990.   On April 4, 1990, Laureno transferred the first sub-parcel of the planned commercial office park to New England Bank & Trust Co. (“NEB”) via a warranty deed.  (The “Bank Deed”).

The Bank Deed stated that NEB planned to build a 3,500 sq. ft. branch bank on the premises.   In addition to conveying the parcel on which the branch building was to be built, Laureno also granted to NEB (a) the exclusive right to park 20 cars in a “Parking Area” located south of and adjacent to the branch parcel and (b) the right to use, in common with others, an “access road to be constructed by Grantor over that area shown as ‘Access Easement’ on the map referred to in Schedule A.” That access road is the private road, Gideon Way, the subject of this litigation.

The NEB Deed further stated:

1.  Grantor contemplates the creation of an office park development on other premises owned by Grantor and situated westerly, southerly and easterly of the premises herein conveyed, which other premises are shown on the map referred to in Schedule A. As part of the development of the office park Grantor expects to create a “Planned Community” as the same is defined and described under the Common Interest Ownership Act. Provided Grantee has reviewed and approved the Declaration of the Planned Community including the method of allocation of the Common Expenses, which approval shall not be unreasonably withheld, Grantee agrees to join with Grantor in submitting the premises herein conveyed, together with the other premises owned by Grantor, to the provisions of such Declaration, thereby causing the premises herein conveyed to become a Unit in the Planned Community.

4. Grantee shall be responsible for the cleaning, the removal of ice and snow, the maintenance and repair of the Parking Area and the access road herein above described until such time as Grantee no longer has the exclusive right to use said premises.

With respect to the easement granted to NEB to use the “Parking Area,” NEB agreed that, once Laureno had acquired all necessary permits for the parking of vehicles there, NEB would release its “exclusive” right to park there in favor of a common right to park there “as an owner of a Unit in the Planned Community.”

On April 13, 1999 NEB released its exclusive right to park 20 cars within the “Parking Area” referred to in the Bank Deed, reserving the right, “in common with others,” to park within that area “in the event that the [Bank] premises situated to the north of the “Parking Area” shall become a Unit in a Planned Community, then, and in that event, New England Bank & Trust Company shall have a right in common with others to park on said area.”   NEB merged with Webster Bank and on March 27, 2001, Webster Bank conveyed the Bank Parcel to Rockville Bank via quitclaim deed.   The property now owned by Rockville Bank will be referred to herein as the “Bank Parcel.”

In 1996 Laureno conveyed a second sub-parcel to Finlay Properties, Inc. by warranty deed dated July 30, 1996 (the “Finlay Deed”).   The Finlay Deed refers to the then NEB branch bank parcel as “Existing Lot 1,” and describes the parcel conveyed to Finlay in reference to a “Resubdivision Plan” dated March 1996.   That Resubdivision Plan shows the “Parking Area” that was referred to in the NEB Deed as then existing to the south of Gideon Way and identifies Gideon Way as the “Exist.   Driveway.”  The Finlay Deed includes a “right of way in common with others ․ over ‘Proposed Access Easement in Favor of Lot 2’ and “Exist.   Driveway' as shown on [Resubdivision Plan d. March 1996], and a covenant by Finlay “to be responsible for the cleaning, removal of snow and ice, and the maintenance and repair of [the] ‘Proposed Access Easement in Favor of Lot 2’ shown on [Resubdivision Plan d. March 1996].”

The Finlay Deed indicated that in the event that Laureno created a Planned Community on its remaining parcel that Finlay's parcel would become part of that “Planned Community,” and that Finlay would have the right to review and approve the Declaration for the Planned Community development including the method of allocating among the community members any common expense associated with membership in that Planned Community.

In 1997 Finlay conveyed its parcel to Alamin via a warranty deed dated June 19, 1997.   That property will be referred to herein as the “Alamin Parcel.”   The warranty deed to Alamin preserves the rights of Laureno and imposes upon Alamin the obligations of Finlay with respect to the anticipated commercial Planned Community and further provides:

Grantee, by acceptance of this deed, agrees to be responsible for the cleaning, the removal of snow and ice, and the maintenance and repair of those premises shown as “Proposed Access Easement In Favor of Lot 2” as shown on the [Resubdivision Plan d. March 1996] map.

On December 21, 2001 Laureno sold the remainder of its Mountain Road Property, about 10.65 acres, to Briarwood Homes, Inc. via a warranty deed.   Association has stipulated that the property conveyed to Briarwood Homes, Inc., includes the land on which Gideon Way is located.

Hatheway Farms was created as a residential common interest community pursuant to a Declaration dated July 31, 2003.   Briarwood Homes, Inc. conveyed the remaining portion of the Laureno property to Hatheway Farms of Suffield, LLC, the company which developed the Hatheway Farms development.   As stated above, Gideon Way was part of the property transferred to Hatheway Farms of Suffield, LLC, hereinafter referred to as the “Hatheway Farms Parcel.”

The proposed office park planned community was never created and neither the Bank Parcel nor the Alamin Parcel ever became a unit in a planned community.

Discussion of the Law and Ruling

In determining the character and extent of an easement created by deed the court must look to the language of the deed, the situation of the property and the surrounding circumstances in order to ascertain the intention of the parties.  American Brass Co. v. Serra, 104 Conn. 139, 142, 132 A.565 (1926).   The language of the grant will be given its ordinary import in the absence of anything in the situation or surrounding circumstances which indicates a contrary intent.  Mackin v. Mackin, 186 Conn. 185, 189, 439 A.2d 1086 (1982).   If the meaning of the language in a deed or conveyance is not clear, then the trial court must consider any relevant extrinsic evidence for the purpose of clarifying the ambiguity.  Hare v. McClellan, 234 Conn. 581, 54-97, 662 A.2d 1242 (1995).

If a conveyance is silent as to the duty to maintain an easement, the general rule is that the duty falls on the owner of the easement, referred to as the owner of the dominant estate.  “The duty of maintaining an easement so that it can perform its intended function rests on the owner of the easement absent any contrary agreement.  Powers v. Grenier Constr., Inc., 10 Conn.App. 556, 560, 524 A.2d 667 (1987);  Center Drive-In Theater, Inc. v. City of Derby, 166 Conn. 460, 464, 352 A.2d 304 (1974);  Schwartz v. Murphy, 74 Conn.App. 286, 297 fn.7, 812 A.2d 87 (2002) (also citing 1 Restatement (Third), Property, Servitudes § 4.13, p. 631, which provides that “[u]nless the terms of a servitude ․ provide otherwise ․ [t]he beneficiary of an easement has a duty ․ to repair and maintain the portions of the servient estate ․ that are under the beneficiary's control”).

Rockville Bank and Alamin both argue that the deeds which created their easements were not silent concerning their duty as the owner of the dominant estate to repair or maintain the easement.   As set forth above, the Bank Deed contained specific language concerning obligations to repair and maintain:

Grantee shall be responsible for the cleaning, the removal of ice and snow, the maintenance and repair of the Parking Area and the access road herein above described until such time as Grantee no longer has the exclusive right to use said premises.

Similarly, the Finlay Deed provided that the grantee would be “responsible for the cleaning, removal of snow and ice, and the maintenance and repair of [the] ‘Proposed Access Easement in Favor of Lot 2’ shown on [Resubdivision Plan d. March 1996].”

Under the explicit language of the deeds in question, Rockville Bank is not responsible for any snow removal, maintenance or repair of any part of Gideon Way and Alamin is responsible only for snow removal, maintenance and repair of the easement of which it has exclusive use.   Moreover, there is language in both deeds which specifically sets forth the conditions under which Rockville Bank and Alamin will become responsible for a portion of the maintenance and repair of Gideon Way:  when they become a unit in a commercial planned community.   That condition has never been satisfied.

Association argues that the facts of this case are controlled by the case of Beneduci v. Valadares, 73 Conn.App. 795, 812 A.2d 41 (2002).   Such argument depends on an invalid assumption-that the Bank Deed and the Finlay Deed “are both silent as to the allocation of the expense of maintaining [Gideon Way].” Association Trial Brief, p. 7. This is clearly not true.

In Beneduci, the Appellate Court stated:

[A]bsent language in a deed to the contrary, “[j]oint use by the servient owner and the servitude beneficiary ․ of the servient estate for the purpose authorized by the easement ․ gives rise to an obligation to contribute jointly to the costs reasonably incurred for repair and maintenance of the portion of the servient estate ․ used in common.”   1 Restatement (Third), Property, Servitudes § 4.13(3), pp.631-32 (2000).

73 Conn.App. 795, 808.   Emphasis added.

Association's argument ignores the language from Beneduci emphasized above.   That case involved several rights of way over a common roadway.   The deeds granting the rights of way were not introduced at trial, and, therefore, the court treated them as if they were silent as to the maintenance issue.   Beneduci is clearly distinguishable from the present case where the pertinent deeds are in evidence and where neither deed is silent on the subject of repair and maintenance of the easement.

Association cannot deny that the conditions precedent to any repair/maintenance obligation by Rockville Bank or Alamin have not occurred.   Instead, it argues that the language in the Bank Deed and the Finlay Deed implies that Rockville Bank and Alamin, respectively, intended to be responsible for the repair and maintenance of Gideon Way if it ever became used by multiple parcels in a planned community.   This argument ignores the language creating both easements and is contrary to the well established principle that the courts will not make new or different contracts for parties.  Farmers & Mechanics Savings Bank v. First Federal Savings & Loan Assn. Of Meriden, 167 Conn. 294, 302, 355 A.2d 260 (1974);  Osborne v. Locke Steel Chain Co., 153 Conn. 527, 531-32, 218 A.2d 526 (1966).   Where a certain contingency is provided for in a contract, a court cannot import into the contract some other and different provision for the same contingency, nor can the construction of an agreement, because of the unreasonableness of its terms, be change to vary express limitations contained in its terms.  Collins v. Sears, Roebuck & Co., 164 Conn. 369, 374, 321 A.2d 444 (1973).

In light of the language of the Bank Deed and the Finlay Deed, the only possible method by which Association could “imply” repair/maintenance obligations would be to argue that the language of the aforementioned deeds is ambiguous with respect to the obligations of Rockville Bank and Alamin.   However, the Appellate Court has addressed the interpretation of such allegedly “ambiguous” contractual terms in William Raveis Real Estate, Inc. v. Newtown Group Properties Ltd. Partnership, 95 Conn.App. 772, 776-77, 898 A.2d 265 (2006):

“A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction ․ [T]he intent of the parties [to a contract] is to be ascertained by a fair and reasonable construction of the written words and ․ the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract ․ Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.   A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity ․” (Internal quotation marks omitted.)  Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 498, 746 A.2d 1277 (2000).  “[C]ourts do not unmake bargains unwisely made.   Absent other infirmities, bargains moved on calculated considerations, and whether provident or improvident, are entitled nevertheless to sanctions of the law ․ Although parties might prefer to have the court decide the plain effect of their contract contrary to the agreement, it is not within its power to make a new and different agreement ․” (Internal quotation marks omitted.)  Id., 505-06.   As stated by our Supreme Court, “a presumption that the language used is definitive arises when ․ the contract at issue is between sophisticated parties and is commercial in nature.”  United Illuminating Co. v. Wisvest-Connecticut, LLC, 259 Conn. 665, 670, 791 A.2d 546 (2002).

Even if the deeds at issue did contain ambiguous language, they would not support the implication sought by Association, because truly ambiguous contractual language is construed against the interests of the party that drafted the language and for whose benefit it has been inserted.  Levine v. Advest, Inc., 244 Conn. 732, 714 A.2d 649 (1998);  Sturman v. Socha, 191 Conn. 1, 463 A.2d 527 (1983).   The same is true of deeds.  “Ambiguous deeds are construed in favor of the grantee and strongly against the grantor.”   D'Addario v. D'Addario, 26 Conn.App. 795, 800, 603 A.2d 1199 (1992).

Finally, under the maxim “expressio unius est exclusio alterius,” when certain things are specified in detail in a contract, other terms of the same general character relating to the same matter generally are excluded by implication.   In this state, that maxim is often applied to statutory construction, i.e., Felician Sisters v. Historic Dist. Comm'n, 284 Conn. 838, 397 A.2d 39 (2008).   However, it has also been applied to contract construction.   17A Am.Jur.2d, Contracts, Section 369;  S.M.R. Enterprises, Inc. v. Southern Haircutters, Inc., 662 S.W.2d 944 (Tenn.Ct.App.1983);  Park View Manor Inc. v. Housing Authority of Stutsman County, 300 N.W.2d 218 (N.D.1980).

All of the Connecticut cases cited by Association as support for the proposition that the “grantee of an easement bears the expense of maintaining the easement” are either clearly distinguishable from this case or find such an obligation only “absent any contrary agreement.”  Carrig v. Andrews, 127 Conn. 403 (1941) is not an easement case.  Kelly v. Ivler, 187 Conn 31 (1982) deals with use of an easement and not maintenance.  Center Drive-In Theater, Inc. v. Derby, 166 Conn. 460 (1974) involves a deed that was silent on the issue of maintenance.  Gallo-Mure v. Tomchik, 78 Conn.App. 699 (2003) involves a prescriptive easement.  Weldy v. Northbrook Condominium Association, Inc., 279 Conn. 728 (2006) does not involve easements.   It is a suit by a unit owner of a residential common interest community against the Association concerning a regulation of the length of dog leashes.

Contrary to the argument of Association, there is nothing in the Bank Deed or the Finlay Deed which implies an intention by Laureno to require NEB or Finlay (other than maintaining the portion over which it had exclusive use) to share in the expense of the repair or maintenance of Gideon Way. Under the clear language of the Bank Deed and the Finlay Deed, NEB and Finlay had no obligation to contribute to the expenses of maintaining Gideon Way unless certain conditions occurred.   First, a planned commercial office park development had to be created on the remaining part of the Laureno property.   Second, NEB or its successor, and Finlay or its successor, had to become a unit owner within that community and, third, the Declaration for that community had to be reviewed and approved by NEB or its successor and Finlay or its successor.   None of those events occurred.

That NEB and Finlay had no responsibility for the repair and maintenance of the Existing Driveway (Gideon Way) effectuates the intent of the parties as indicated by the language of the Bank Deed and the Finlay Deed and the surrounding circumstances.   The proposed planned community referenced in those deeds was to be a commercial development.   The grantor, Laureno, clearly contemplated that multiple commercial users in the planned community would divide the cost of all common elements.   There is absolutely no language in those deeds from which the court may infer that Laureno intended to impose on NEB, Finlay or their respective successors an obligation to contribute to road maintenance in the event that some future transferee decided to develop a residential planned community on its remaining property.   Moreover, there is no evidence before this court indicating that during the period of more than ten years between the granting of the Finlay Deed and the commencement of this lawsuit, that Laureno ever sought any contribution from NEB, Rockville Bank, Finlay or Alamin toward the costs of maintaining Gideon Way.

Association argues that the interpretation by Rockville Bank and Alamin of their obligations with respect to the repair and maintenance of Gideon Way is “absurd.”   For the reasons set forth above, the court does not agree.   The language of the Bank Deed and the Finlay Deed was available in the Suffield Land Records for many years prior to the development of the Hatheway Farms planned community.   The developer and unit owners were on notice that Rockville Bank and Alamin had limited or no obligations to repair or maintain Gideon Way.

The court finds that Hatheway Farms Association, Inc. is solely responsible for the maintenance and capital improvement expenses for Gideon Way running from its access point on Mountain Road to the easternmost curb of Hatheway Drive, except that the Alamin Family Partnership is responsible for the cleaning, the removal of snow and ice and the maintenance and repair of those premises shown as “Proposed Access Easement in Favor of Lot 2” on the map referred to in Exhibit A to the deed from Laureno Enterprises to Finlay Properties, Inc., dated July 30, 1996, and Rockville Bank has no responsibility for any share of maintenance and/or capital improvement expenses for any portion of Gideon Way.

By the court,

Aurigemma, J.

Aurigemma, Julia L., J.