The Neighborhood Association, Inc. aka Pine Rd. Woods Association v. Jill M. Limberger et al. (2013)

MEMORANDUM OF DECISION

Jill Limberger, the owner of the condominium unit which is the subject of this foreclosure action, moves to dismiss this lawsuit based on the failure of the plaintiff, the owner's association for the condominium complex, to comply with the dictates of General Statutes § 47–258(m) before commencing foreclosure.   On May 2, 2013, the court received evidence on this motion and makes the following findings of fact and rulings of law.

On May 31, 2011, the plaintiff initiated this action to foreclose the lien levied against the movant's unit for delinquent condominium association fees.   Under § 47–258(j), such liens are to be foreclosed in the same manner as a mortgage.   Subsection (m) of § 47–258, however, adds three prerequisites, viz:  (1) the unit owner must be more than two months behind in association fee payments;  (2) the association made demand upon the unit owner for payment of the unpaid fees “in a record”;  and (3) the executive board for the association had either voted to foreclose against the individual unit or “has adopted a standard policy that provides for foreclosure against that unit.”

The movant agrees that the first prerequisite was met, but she denies that the plaintiff demanded payment of her and that the executive board properly approved foreclosure by means of either alternative.   Contrary to her assertion, the court finds that the plaintiff demanded payment of the movant by mailing a demand letter to her, which letter was dated February 24, 2011.   The court also determines that, on March 28, 2011, the association's Board of Directors adopted a standard policy for enforcement of association liens which embraced foreclosure of the lien against the movant's unit.

The Board of Directors satisfies the definition of “executive board” of the association as set forth in General Statutes § 47–202(18).   The Board never notified unit owners before the March 28, 2011 meeting that the meeting would include consideration of adoption of new fee collection standards as allowed by § 47–258(m).  Nor did the Board send notice after the meeting that such new guidelines had been adopted.

The movant contends that the new enforcement policy was a proposed “rule” change which, under General Statutes § 47–261b, required the Board to give notices of both the proposed and adopted standards.   The plaintiff counters that § 47–261b(g) exempts the Board's action from such notification procedure.   The court concurs with the plaintiff's interpretation.

Subsection (31) of § 47–202 defines a “rule” to mean “a policy, guideline, restriction, procedure or regulation of an association, however denominated, which is adopted by an association pursuant to § 47–261b which is not set forth in the declaration or bylaws and which governs the conduct of persons or the use or appearance of property.”  (Emphasis added.)   The adoption by the Board, on March 28, 2011, of the new fee collection system of common expenses and assessments did not regulate the conduct of persons or use or appearance of property at the condominium complex.   Instead, it is an “internal business operating” procedure which, by virtue of the exemption contained in § 47–261b(g), “need not be adopted as [a rule].”

The expansive interpretation of “rule” urged by the movant would subsume the exemption of § 47–261b(g) because every operating procedure entails the regulation of persons to some extent.   The court holds that the definition of “rule” is aimed at the conduct of residents and visitors of condominium units and the use and appearance of the physical facility rather than the enactment of internal protocols for the day-to-day operation of the complex by management.

The Board acted properly in voting to adopt the new enforcement standards without giving notice to unit owners because § 47–261b(g) dispenses with those notifications requirements for such activity by the Board.

The motion to dismiss, therefore, is denied.

Sferrazza, J.

Sferrazza, Samuel J., S.J.