Brookside Condominium Association, Inc. v. Gordon Hargrove et al. (2013)

Memorandum of Decision

This is a foreclosure action brought by the plaintiff condominium association pursuant to the Common Interest Ownership Act, Conn. Gen.Stat. § 47–258(j) to foreclose the statutory lien of § 47–258(a) ¹ for unpaid assessments of common charges, fines, late charges, interest and reasonable attorneys fees and costs assessed against the defendants as owners of Unit B of Brookside Condominium, also known as 1260 Hope Street, Unit B, Stamford Connecticut.   The plaintiff alleges in the complaint that $6,879.34 in assessed unpaid common charges, fines, finance charges and late fees, plus reasonable attorneys fees and costs, was then due and payable to the association.

The defendants have filed their answers in which they agree that they own Unit B, but disagree that they are $6,879.34 in arrears on their assessments.   No special defenses or counterclaims against the association have been pleaded.   By stipulation and the court's order the case was bifurcated at the start of trial into two phases to be separately tried and decided:  first, the determination of the amount and validity of common charges, fines, late fees, and/or finance charges, if any, presently owed to the plaintiff by the defendants as owners of Unit B of the condominium;  and, if necessary, secondly, the plaintiff's claim for judgment of strict foreclosure or a foreclosure by sale together with a determination and award of foreclosure fees and expenses including, without limitation, reasonable attorneys fees and costs.   The court heard evidence related to the first phase on July 31, 2013.   This Memorandum of Decision is addressed solely to the first phase of trial.   To the extent that the court finds that any sums are presently due to the plaintiff association by the defendants, further proceedings with respect to the second phase of trial will be scheduled if those sums remain unpaid.

Findings of Fact

The court finds the following facts proved by a preponderance of the evidence:

1.  Brookside Condominium (the condominium) was formed by Anthony M. Pavia, Sr. by a Declaration of Condominium and Bylaws of Brookside Condominium Association, Inc. recorded in Volume 2313 pages 192–250 of the land records of the City of Stamford on November 9, 1983.  (Plaintiff's Ex. 2.)

2.  The condominium thus created consists of four residential units (Units A, B, C, and D. located within a single two-story building at 1260 Hope Street Stamford Connecticut.   In addition to the residential units, the condominium consists of common elements, limited common elements, and facilities.   Unit A also has a limited common element consisting of a two-car garage under the Unit and a private stairway to the garage and basement.   The other units have assigned parking spaces in the paved parking area along Hope Street in front of the building.

3. There is a common element beside the building consisting of the storage area for wheeled trash containers, or “toters,” provided for each unit.

4. The basement of the building (exclusive of the garage) is also common area of the condominium in which is located a coin operated clothes washer and dryer, electric water heaters for each unit, and storage bins.   Each unit also has a mailbox assigned as a limited common element.   Access to the basement is through a common element locked “bilco” type steel door in the rear of the building, and through the private interior stairway assigned to Unit A.

5.  The defendants have been the owners of Unit B of the condominium since 2007 until the present.

6. The condominium is governed and administered under the Declaration and Bylaws by the plaintiff Brookside Condominium Association, Inc., and its Board of Directors consisting of three Unit Owners or other authorized persons elected by the unit owners or their designees for two-year terms.

7. Article 9(b) of the Declaration provides, in part:  “There shall be no obstruction of the Common Elements and Facilities nor shall anything be stored in the common elements and facilities without the prior written consent of the Board of Directors of the Association except as may be hereinafter expressly provided.”

8. Article 9(d) of the Declaration provides, in part:  “Unit owners shall not cause or permit anything to be hung or displayed on the outside of the windows or placed on the outside walls of the building ․”

9.  Article 9(h) of the Declaration provides “No clothes, sheets, blankets, laundry of any kind or any other articles shall be hung out or exposed on any part of the Common Elements and Facilities.   The Common Elements and Facilities, terraces and balconies or decks shall be kept free and clear of rubbish, debris, and other unsightly materials and items.

10. Section 4(a) of the Bylaws gives the Board of Directors “the power and duties necessary for the administration of the affairs of the Association and [the power to] do all such acts or things except as by law or by the Declaration or these By–Laws may not be delegated to the Board of Directors by the Unit Owners.”   Those powers include, but are not limited to, operation, care upkeep and maintenance of the common elements and facilities of the condominium, determination of the common expenses required for the affairs of the Association, and the collection of common expenses from the unit owners, and the “Adoption and amendment of rules and regulations covering the details of the operation and use of the property ․”

11.  Section 4(a) of the Bylaws further gives the Board of Directors:  “the power to enforce obligations of the Unit Owners, to allocate profits and expenses, and to do anything and everything else necessary and proper for the sound management of the Association.   The Board shall have the power to levy fines against the Unit Owners for violation of reasonable rules and regulations established by it to govern the conduct of the Unit Owners.   No fine may be levied for more than $15.00 for any one violation;  but for each day a violation continues after notice it shall be considered a separate violation.   Collection of the fines may be enforced against the Unit Owner or Unit Owners involved as if the fine were a common charge owed by the particular Unit Owner or Unit Owners.

12. Section 27(a) of the Bylaws provides, in part:  “Notices.   All notices hereunder to the Association shall be sent by registered or certified mail to the Board of Directors in care of the President of the Association and/or the managing agent, if there be a managing agent.   All notices to any Unit Owner shall be sent by registered or certified mail to the Unit Address or to such other address as may have been designated by him from time to time in writing to the Board of Directors ․ All notices shall be deemed to have been given when mailed except notices of change of address which shall be deemed to have been given when received.

13. The Board of Directors of the condominium has enacted Rules and Regulations, and a “Collection Policy” and a “Maintenance Standards Policy” at its duly noticed regular meeting of June 17, 2011.  (Plaintiff's Ex. 3.)

14.  The Brookside Condominium Association, Inc. (“Collection Policy” adopted at the Unit Owners' Meeting of June 17, 2011 provides, in part:  (1) Common expense assessments including other fees, shall be due of the first (1st) day of each month.(2)  If payment is not received by the tenth (10th) day of the month, the Unit Owner shall receive a late fee of twenty ($20) dollars.  (3) If the delinquency remains outstanding after the tenth day of the following month, the Association's attorney will send a Notice of Delinquency and Demand for Payment on behalf of the Association.   The Unit Owner will be charged for the cost of the Notice.  (4) Twenty ($20) dollars shall be assessed to the Unit Owner's Account for each month a delinquency exists on a Unit Owner's Account, regardless of the basis of the delinquency.   A delinquency exists if there is a balance due and owing on the account as of the eleventh (11th) day of the month ․ (9) Payments received towards a delinquent account are credited as follows:  (a) Attorneys fees and costs (b) late fees and interest (c) fines (d) special assessments (e) Regular common expense assessments with payment being applied to the oldest balance first.”  (Plaintiff's Ex. 3.)

15.  The condominium's Rules and Regulations (Plaintiff's Ex 3) contain the following relevant provisions:

Fine and Continuing Violations.   Violation of any rule or regulation is subject to a fine which is listed in the ‘Schedule of Fines' which may be amended from time to time.   Each day the violation remains uncorrected after notice will be considered a separate violation.2  This will result in an accrual of the fine for every day and every violation that remains uncorrected.   The late charge for delinquent common charge and assessment is also listed in the ‘Schedule of Fines,’ however this fine is assessed only once per month.   A payment is considered late if it is received after the 10th of the month in which it is due.

Crediting Payments.   The Association shall apply all partial payments by the Unit Owner to the Unit Owner's outstanding balance in the following order:  (a) Attorneys fees and costs (b) late fees and interest (c) fines (d) special assessments (e) Regular common expense assessments with payment being applied to the oldest balance first.

Section 5.2—Trash Containers Location.   Every unit will be assigned its own trash and recycling container.   Trash and recycling containers are located in the designated area, which may be re-designated by the Board of Directors from time to time.   Residents will be responsible for transporting trash and recycling from their units to only their container(s) located in the designated area.   Residents will be responsible for transporting their container(s) from the designated area to the pickup location no sooner than the evening before pickup and must transport same container(s) back to the designated area before the end of the day of pickup ․ No resident may locate a container(s) in such a manner that it may interfere with the operation of the parking lot, vehicular or pedestrian traffic, garage, or entry doors.

Section 12.1—Storage ․ Door locks to rear doors leading to the exterior must remain locked at all times when not in use.

Other findings of fact will be made, as necessary, in the following Discussion of the law and evidence.

Discussion

The condominium charges claimed by the plaintiff to be delinquent obligations of the defendants are summarized on the eleven-page document on the letterhead of Stonehenge Property Management,³ entitled “Common Charge” (Plaintiff's Exhibit 1).   The summary covers the period June 1, 2011 through July 11, 2013, and shows a total amount of $8,319.34 due and owing as of the date of trial (July 31, 2013).   The charges fall into four categories:  monthly common charges, special assessments, fines, and finance charges.   Each will be separately discussed, following discussion of two preliminary issues.

A. Preliminary Issue:  Notices to Unit Owners from the Association:  Considerable trial time was devoted to the defendants' oft-repeated claim or objection that they had not received notice of most of the exhibits offered into evidence by the plaintiff.   Their claim was that any notices to them should have been sent to their Post Office box at the Stamford Post Office, opened in 2008, because of concern expressed to management over the security of their assigned exterior mailbox for anything other than brochures or flyers or “junk mail”.   They testified that they verbally asked the management agent of the Association to send all first class or certified mail to them at their post office box.   Mr. David Ferguson of Stonehenge Property Management did not recall receiving any such verbal instructions.   It is not necessary for the court to determine if such verbal instructions were given because Section 27(a) of the Bylaws, quoted above at Finding of Fact No. 12 is very specific in requiring that:  “All notices hereunder to the Association shall be sent by registered or certified mail to the Board of Directors in care of the President of the Association, and/or the managing agent if there be managing agent.” and “All notices to any Unit Owner shall be sent by registered or certified mail to the Unit Address or to such other address as may have been designated by him from time to time in writing to the Board of Directors.”   Mr. Ferguson testified that no such written notice was received at any time from the Hargrove defendants and they offered no evidence of ever having given such written notice to the Board, the President, or the Managing Agent.   The Court finds that no written notice of change of address to the P.O. Box was sent by the defendants to the plaintiff and that in accordance with Section 27(a) of the By–Laws all notices sent by registered or certified mail to the physical Unit Address at 1260 Hope Street, Unit B, Stamford, Connecticut were effective and valid notice when sent.

B. Preliminary Issue:  Selective Enforcement of By–Laws, Rules and Regulations.   Defendants offered evidence in an effort to show that the plaintiff was improperly selective in nonenforcement against other unit owners of the same By–Law provisions and Rules and Regulations for which the Association has fined the defendants.   This evidence was excluded by the court as not relevant to the issues in the case.   Any such defense clearly would be an “illegality not apparent on the face of the pleadings” which would have to have been pleaded as a special defense under Practice Book § 10–50.   No special defense was filed.

C. Fines

The plaintiff is seeking to enforce against the defendants unpaid fines for:  (1).   Cardboard on their porch in violation of the Declaration Articles 9(b), 9(d) 9(f) and 9(h) for the period from June 1 through June 30, 2011. (30 days at $15 per day;  fine of $450);  and July 1 through July 24, 2011 (24 days at $15 per day;  fine of $360);  (2) “Toters” (trash receptacles) interfering with operation of parking lot and not returning toters to designated area in violation of Rules and Regulations Section 5.2, (August 16, 2011 “x 2”; ⁴  fine of $30);  September 1 through September 30, 2011, except for day before and day of pickup (22 days at $15 per day;  fine of $330);  October 1 through October 31, 2011 except for day before and day of pickup (23 days at $15 per day;  fine of $345);  November 1 through November 30, 2011 except for day before and day of pickup (22 days at $15 per day, fine of $330);  December 1 through December 31, 2011 except for day before and day of pickup (23 days at $15 per day;  fine of $345);  February 1 through February 29, 2012 except for day before and day of pickup (20 days at $15 per day;  fine of $300);  March 1 through March 31, 2012 except for day before and day of pickup (23 days at $15 per day;  fine of $345);  April 1, 2012 through April 30, 2013 (Thirteen months at $15 per non-exempt day, total fines of $4,038).  (3) Failure to relock basement doors after use in violation of Rules and regulations § 12.1 (2 days at $15;  fine of $30).  (Plaintiff's Ex 1, 4, 5, and 6;  Defendants' Ex. U).

From the above findings, the court calculates that total fines of $6,988 were nominally imposed and presently claimed by the plaintiff.   But, on close analysis, there were only five “primary” (first day) violations:  (1) cardboard on the porch starting on June 1, 2011;  (2) failure to remove toters on July 16, 2011, (3) failure to remove toters starting on September 1, 2011 (through December 31, 2011);  (4) failure to remove toters starting February 1, 2012 ⁵ (through April 30, 2013);  and (5) failure to re-lock basement door (first of two days).   All the other fines were imposed under the “each subsequent day is a separate violation” provision of the Declaration Article 9(j) and Rules and Regulations rule entitled “Fines and Continuing Violations” supra, (Finding of Fact No. 15).

The plaintiff has brought this action alleging that it has a lien for, inter-alia, unpaid fines.   The Common Interest Ownership Act, Conn. Gen.Stat. § 47–258(a) creates that lien in favor of the association “for any assessment attributable to that unit or fines imposed against its unit owner.”   The power of an association to levy fines comes from Conn. Gen.Stat. § 47–244(a)(11) which gives the power “․ after notice and opportunity to be heard, [to] levy reasonable fines for violations of the declaration, bylaws, rules, and regulations of the association.”   The plaintiff Brookside Condominium Association, Inc. exercised that power through Article 9(j) of the Declaration, and the “Fines and Continuing Violations” section of the Rules and Regulations.   In addition to imposing a fine for each violation, each of those provisions states, identically, that “Each day the violation remains uncorrected after notice will be considered a separate violation.”  (Emphasis added.)   The plaintiff has proceeded in this case as if it had the automatic right just to accumulate the number of days that a violation exists, and multiply that number by 15 to arrive at the dollar amount of the fine without paying heed to the “uncorrected after notice” limitation for days after the first day of violation.   But the plaintiff has the burden of proving that the fines it seeks were validly imposed pursuant to its own governing documents, which it has submitted in evidence to the court.   Similar uncorrected after notice language was at issue in 25 Van Zant Street Condominium, Inc. v. Calvary Chapel of Norwalk, Superior Court, Judicial District of Stamford/Norwalk at Stamford, Docket No. FST CV07–5004073S (June 22, 2010, Karazin, J.) 2010 Ct.Sup. 12767.   The Van Zant Association was seeking to enforce and collect a $41,600 fine of $100 per day for a total of 416 days during which the unit owner was in violation of the Bylaws for not having a certificate of occupancy for its unit.   The Bylaws stated:  that the Board of Directors of the Association shall have the right “․ to levy summary charges against a Unit Owner for such violation [of the Rules and Regulations or the Bylaws of the Association] ․ provided that no summary charge may be levied for more than $100 for any one violation;  but for each day a violation continues after notice, it shall be considered a separate violation.”   Id. p. 12744.   No such notice had been provided during the 416 days.   Judge Karazin ruled that the $100 per day fine was not collectible:  “This provision contemplates violation of the Rules/Regulations and/or Bylaws, which has not been established by the plaintiff;  and after notice of said violation, a refusal to cure, all of which have not been established by the Association.”   Id.

With respect to the violations, and with the exception of the two single-day toter fines imposed on August 16, 2011, the Van Zant analysis applies here for fines levied prior to January 2, 2012 and for the fines levied after January 31, 2012 (through March 31, 2013).  (There were no toter fines assessed for days in January 2012.   See footnote 5.) With respect to both of those continuums of violations the plaintiff has not proved that it gave notice to the Hargroves of an opportunity to cure their continuing “subsequent day” violations that occurred in those time frames.   In the case of each fine imposed during those periods, the only notice given was sent after the fact, after the final date of the alleged violations.   The Notice of Violations and Fine for not removing the cardboard and not returning the Hargrove toters to the storage area during the months of June, July, August, September, October, November, and December 2011 was sent to their registered address by certified and first class mail on January 2, 2012 (Plaintiff's Ex. 4) which was after the final day of violations alleged in that notice during which fines of $450, $360, $330, $345, $330, and $345 had accrued.   From June 1, 2011 through January 1, 2012, there were no continuing “subsequent day” violations that went “uncorrected after notice.”   There was no “refusals to cure” during that period because the defendants were not given any cure notice until $2,160 of fines had accumulated and been assessed.   With respect to the toters violations starting on September 1, 2011, the plaintiff assessed fines of five days per week (the two allowable days per week for municipal trash collection at the curb being excluded.) over a continuum of four months.   None of the “subsequent day” violations that were alleged went “uncorrected after notice” because no advance notice had been given.   The same applies in part to the toter violations alleged for the continuum starting on February 1, 2012 (and continuing through April 15, 2013).   There were two notices sent during that period.   The first notice, Exhibit 5, covered alleged violations through March 31, 2012 but that notice sent was after the fact on April 15, 2012.   That would not qualify as advance notice for the violations alleged for February 1 through March 31, but the court finds that it did serve as advance notice for violations alleged from the date of notice, April 15, 2012 for the remainder of the continuum, through April 30, 2013 (a period of 12 months, 15 days).   The fines imposed (entered on Exhibit 1) for those 12 months, 15 days came to $4,140 which were validly imposed in the absence of any evidence of any violations being cured during that period.

Under that analysis, then, the following fines were validly imposed:

“Cardboard” violations June 1 through July 24, 2011:  one day only, total fine $15.  (No “subsequent day” violations allowed.)

Two “Toter” violations August 16, 2011:  $30 fine allowed.

“Toter” violations September 1, 2011 through January 1, 2013.   Fines of only one day allowed, total fine $15 (No. “subsequent day” violations allowed.)

“Toter” violations February 1, 2012 through April 30, 2013.   Only a one day fine ($15) allowed for fines assessed prior to the April 15, 2012 notice (Ex. 5).   Fines assessed after notice from April 15, 2012 through April 30, 2013, twelve months, fifteen days at $15 per non-exempt day are allowed, as defendants were on notice as to continuing day violations.   Those fines of $4,140 are allowed.

Failure to relock basement door.   No “notice” given during the days of the offense.   Therefore no “subsequent day” fines allowed.   One day fine is allowed in the amount of $15.

The total amount of fines allowed is therefore found to be $4,230.00

The court discredits the testimony of the defendants that on certain unspecified dates they did return their toters to the storage area only to discover the next day that an unknown person had returned them to the curb.   The defendants are deemed to have received at least three notices of opportunities to contest the “toters” violations at meetings of the Board of Directors.  (Exhibits 4, 5, and 6.) There is no evidence that the defendants advanced this defense at any time before the Board even though the defendant Gordon Hargrove did appear at the board meeting of May 16, 2013.   There was contrary evidence from Mr. Ferguson that the defendants themselves were observed on several occasions to have moved the toters back to the curb from the storage area at non-exempt times.   The court concludes that there is insufficient evidence to find that someone else had removed the toters from the storage area.

Furthermore, the defendants had an obligation under the rules to see that their toters were no longer at the curb by the end of the municipal collection day, even if the toters had to be removed to storage more than once.   The fact that someone else may have put the toters at the curb is a separate issue which should have been reported to management.   The dates of violation were memorialized on Exhibit 1, 4, 5, and 6 which were admitted as business records of the Association.   Mr. Ferguson testified that the violation date entries were determined by observation and camera surveillance.

D. Monthly Common Charges

The monthly common charges assessed against defendant's Unit B remained at $205.84 per month, due on the first of each month during the entire nineteen months covered by Exhibit 1. The document shows, and the court finds that payments for Unit B were made in the amount of $205.84 during each month from January 2012 through July 2013.  (Ex. 1.) Mr. Ferguson testified that those payments were not credited or fully credited to common charges because of the Association's Collection Policy and Crediting Payments Policy which specifies that all payments shall be applied to fines, late fees, and interest and special assessments before being applied to monthly common charges.   Since there were fines assessed starting with June 2011, there would be delinquencies of record in payment of common charges.   But many of those fines have now been disallowed by the court, and there is insufficient information before the court to reconstruct the application of the $205.84 monthly payments.   Mr. Ferguson testified only that the balance claimed due on Exhibit 1 represents a “compilation” of all charged entries less payments applied per the Credit Payment Policy.

In order to approximate reasonably the plaintiff's damages the court will treat all common charges as paid in full, and all fines, fees, and special assessments—to the extent allowed—as unpaid.⁶  Consequently, no common charge assessments are awarded as damages.

E. Special Assessments.

The plaintiff is claiming a lien for two types of special assessments:  Charges assessed to the defendant's Unit B for manual labor performed by Association personnel on several occasions as requested by other unit owners, namely the removal of the Hargroves' toters from the curb area to the storage area on two non-exempt dates, the locking of basement doors left unlocked, the “correction of a safety violation,” and a special assessment of $369.34 representing Unit B's pro-rata share of a capital improvement expense for installation of security cameras.

The assessments for work performed by Association personnel at the rate of $60 per instance are allowed in the total amount of $360.  (By-laws, Section 12.)

The special assessment for surveillance cameras is disallowed.   The assessment was not legally imposed under the Common Interest Ownership Act. This special assessment was imposed by the Board of Directors.   But before it can impose a special assessment to cover a capital improvement expense greater than $1,000 the Board must have the approval of the Unit Owners.  (Ex.7.) At a duly noticed meeting of the Unit Owners held on April 27, 2012 the Unit Owners approved a resolution authorizing a capital expense for camera system.  (Ex.7, minutes.)   The actual determination of the amount to be spent ($1,750) and the allocation of that expense to the units based on their pro-rata share occurred at an Electronic Board Meeting held on July 29, 2012.  (Exhibit and Minutes, Ex. 8.) The defendants challenged their assessment on the ground that they had received no notice of the Board of Director's electronic meeting and hence had no opportunity to contest their assessment.   In fact they claimed no knowledge at all of the special assessment until this litigation was commenced.   Mr. Gordon Hargrove was permitted to ask on voire dire regarding notice of the meeting.   The witness Mr. Ferguson responded:

The statutes allow for board meetings to be held electronically and not physically, and so this particular meeting was not noticed as a physical meeting which require all unit owners to be noticed.   This was an electronic meeting to approve a special assessment within the guidelines of the state statutes, and these [Ex. 8] are the minutes of that electronic meeting which it looks like it was done by e-mail.7

Counsel requested the court to take judicial notice of the “state statutes.”   The court did so with respect to the relevant portions of the Common Interest Ownership Act. The court inquired:

“[For] electronic meetings, are unit owners given any manner of listening in or tuning in?”   The witness, Mr. Ferguson responded:

Only the results are sent out within 48 hours.   Unlike a normal meeting [for which] the minutes do not have to be sent out unless they are requested, an electronic board meeting the results are mandatory to be sent out within 48 hours, which is the second page of the exhibit.

The law is very much otherwise.   The Common Interest Ownership Act (“CIOA”), Conn. Gen.Stat. § 47–250(b)(7) ⁸ specifically provides:

Unless prohibited by the declaration or bylaws, the executive board may meet by telephonic, video, or other conferencing process if (A) the meeting notice states the conferencing process to be used and provides information explaining how unit owners may participate in the conference directly or by meeting at a central location or conference connection;  and (B) the process provides all unit owners the opportunity to hear or perceive the discussion and offer comments as provided in subdivision 4 of this subsection.

Subdivision 4 provides:  “At each executive board meeting the board shall provide a reasonable opportunity for unit owners to comment regarding any matter affecting the common interest community and the association.”

The $369.34 special assessment against Unit B for surveillance cameras was clearly not passed properly in that the notice of opportunity to participate in and comment on the decision to assess was denied to the defendants.   That special assessment is therefore not allowed.

F. Finance Charges

The Association has charged the defendants as the owners of Unit B a series of eighteen consecutive $20 “Finance Charges” as of the eleventh day of each month from February 2012 through July 2013.  (Ex. 1.) The total amount of “Finance Charges” sought is $360.

The governing documents of the condominium contain several separate confusing and seemingly overlapping provisions having to do with late or delinquent payments of common charges and other fees due from Unit Owners to the Association.   None of them is designated as a “Finance Charge.”

Section 11(d) of the By-laws provides that “In the event of default by any Unit Owner in paying to the Association the Common Charges as determined by the Board of Directors of the Association, such unit owner shall be obligated to pay interest at the legal rate on such Common Expenses from the due date thereof, together with all expenses, including attorneys fees incurred by the Association in any proceeding brought to collect such unpaid Common Charges.”

The Brookside Condominium Association, Inc. Collection Policy, (Finding of Fact No. 14. supra, at page 4 of this memorandum) provides in ¶ 1 that “Common expense assessments, including other fees, shall be due on the first (1st) day of each month.”   Paragraph 2 then provides that a Unit Owner shall “receive a late fee of twenty ($20) (emphasis added) “if payment is not received by the tenth day of the month.”   Paragraph three then says “If the delinquency remains outstanding after the tenth day of the following month, the Association's Attorney will send a Notice of Delinquency and Demand for Payment of behalf of the Association.   The Unit Owner shall be charged for the cost of the Notice.”   Paragraph Four then provides “Twenty Dollars shall be assessed to the Unit Owners' account for each month a delinquency exists on a Unit Owner's Account, regardless of the basis of the delinquency.   A delinquency exists if there is a balance due and owing on the account as of the eleventh day of the month.”

Counsel for the plaintiff introduced no evidence and provided no guidance to the court as to which of these fees or assessments the plaintiff is attempting here to collect.   It is not the interest assessment of § 11(d) of the By–Laws because all eighteen fees are a flat rate of $20, and not the result of calculations of interest at the legal rate ⁹ on the then-outstanding balances.   The court holds that it cannot be the very badly drafted “late fee” of ¶ 1 of the Collection Policy which is a fee that the Unit Owner would “receive,” and presumably, then, not a fee the Association would “receive” from the Unit Owner.   So, by a process of elimination the fee sought must be the unnamed twenty dollar monthly fee of paragraphs 3 and 4 of the Collection Policy.  (The only fees that expressly reference the eleventh day of the month which is the date that all eighteen $20 fees were assessed against Unit B owned by the Hargroves.)   But those fees are subject to a prerequisite that the Attorney for the Association must send a “Notice of Delinquency and Demand for Payment” for each such fee.   There is no evidence that any such notices/demands were sent to the Hargroves at any time.

The plaintiff has the burden of proving that all fees it is attempting to collect were properly assessed under the governing documents of the condominium.   For the foregoing reasons it has not met that burden with respect to the claim for $360 in “Finance Charges,” which are therefore disallowed.

Conclusion and Scheduling Order

The court concludes that the following charges, fines, and/or fees have been validly assessed against Unit B by the Brookside Condominium Association, Inc., and remained unpaid as the date of the first phase of trial on July 31, 2013:

Fines $4,230.00

Special Assessments (for

Work performed by

The Association $ 360.00

Total:  $4,590.00

The liened debt owed by the defendants to the plaintiff for purposes of this bifurcated foreclosure trial against Unit B of Brookside Condominium, 360 Hope Street, Stamford Connecticut, owned by the defendants, is therefore found to be $4,590.00 as of July 31, 2013.

The case is assigned for a further hearing on December 16, 2013 for proceedings on plaintiff's request for entry of judgment of strict foreclosure or foreclosure by sale and plaintiff's other requests for relief as set forth in its complaint.   The case will be printed on the Miscellaneous and Special Proceedings short calendar at 9:30 AM on December 16, 2013 before Judge Jennings.

So ordered,

Alfred J. Jennings, Jr.

Judge Trial Referee

FOOTNOTES

FN1. Section 47–258(a) provides that “The association has a statutory lien on a unit for any assessment attributable to that unit or fines assessed against its unit owner.”  Section 47–258(j) provides that “The association's lien may be foreclosed in like manner as a mortgage on real property.”.  FN1. Section 47–258(a) provides that “The association has a statutory lien on a unit for any assessment attributable to that unit or fines assessed against its unit owner.”  Section 47–258(j) provides that “The association's lien may be foreclosed in like manner as a mortgage on real property.”

FN2. The underlined sentence also appears in the Declaration, Article 9(j)..  FN2. The underlined sentence also appears in the Declaration, Article 9(j).

FN3. Stonehenge Property Management is the professional management firm hired by the Board of Directors of the plaintiff to manage Brookside Condominium.   Mr. David Ferguson, President of Stonehenge at all relevant times, was the plaintiff's primary witness at trial..  FN3. Stonehenge Property Management is the professional management firm hired by the Board of Directors of the plaintiff to manage Brookside Condominium.   Mr. David Ferguson, President of Stonehenge at all relevant times, was the plaintiff's primary witness at trial.

FN4. There is no explanation of how two violations occurred on a single day, but the $30 fine was imposed, and there is no evidence why it should not be enforced..  FN4. There is no explanation of how two violations occurred on a single day, but the $30 fine was imposed, and there is no evidence why it should not be enforced.

FN5. There were no “toter” fines assessed for the month of January 2012.   The “Notice of Violation and Fine” dated April 15, 2012 (Ex. 5) does allege a toter violation of “January 1—January 31, 2012 inclusive except for day before and day of pickup” but no fines were actually assessed on Exhibit 1 for any toter violations in the month of January 2012.   A new continuum of violations therefore started on February 1, 2012..  FN5. There were no “toter” fines assessed for the month of January 2012.   The “Notice of Violation and Fine” dated April 15, 2012 (Ex. 5) does allege a toter violation of “January 1—January 31, 2012 inclusive except for day before and day of pickup” but no fines were actually assessed on Exhibit 1 for any toter violations in the month of January 2012.   A new continuum of violations therefore started on February 1, 2012.

FN6. “The plaintiff must prove by a preponderance of the evidence the amount of any damages to be awarded.   The evidence must give you a sufficient basis to estimate the amount of damages to a reasonable certainty.   Although damages may be based on a reasonable estimate and probability, you may not award damages on the basis of guess, speculation, or conjecture.”   Connecticut Judicial Branch, Civil Jury Instruction No. 4.5–4..  FN6. “The plaintiff must prove by a preponderance of the evidence the amount of any damages to be awarded.   The evidence must give you a sufficient basis to estimate the amount of damages to a reasonable certainty.   Although damages may be based on a reasonable estimate and probability, you may not award damages on the basis of guess, speculation, or conjecture.”   Connecticut Judicial Branch, Civil Jury Instruction No. 4.5–4.

FN7. There is no transcript of the trial.   These quotes are taken from the electronic audio recording which is available to the court..  FN7. There is no transcript of the trial.   These quotes are taken from the electronic audio recording which is available to the court.

FN8. Brookside Condominium was declared on November 9, 1983 under the provisions of the Unit Ownership Act, one of the predecessors of CIOA. But certain provisions of CIOA do apply to condominiums declared before the effective date of CIOA, which provides, at § 47–216 that § 47–250 is one of those sections that applies retroactively to condominiums created before January 1, 1984..  FN8. Brookside Condominium was declared on November 9, 1983 under the provisions of the Unit Ownership Act, one of the predecessors of CIOA. But certain provisions of CIOA do apply to condominiums declared before the effective date of CIOA, which provides, at § 47–216 that § 47–250 is one of those sections that applies retroactively to condominiums created before January 1, 1984.

FN9. The legal rate of interest “in the absence of any agreement to the contrary” is presently eight percent a year.  Conn. Gen.Stat. § 37–1..  FN9. The legal rate of interest “in the absence of any agreement to the contrary” is presently eight percent a year.  Conn. Gen.Stat. § 37–1.

Jennings, Alfred J., J.T.R.