Caswell Cove Condominium Assn., Inc. v. Milford Partners, Inc., (AC 19072)

• Court: Appellate Court of Connecticut
• Writing for the Court: MIHALAKOS, J.
• Citation: 753 A.2d 361,58 Conn. App. 217
• Parties: CASWELL COVE CONDOMINIUM ASSOCIATION, INC. v. MILFORD PARTNERS, INC.
• Docket Number: (AC 19072)
• Decision Date: 13 June 2000

58 Conn. App. 217
753 A.2d 361

CASWELL COVE CONDOMINIUM ASSOCIATION, INC.
v.
MILFORD PARTNERS, INC

(AC 19072)

Appellate Court of Connecticut.

Argued February 25, 2000.

Officially released June 13, 2000.

Schaller, Mihalakos and Zarella, Js.

58 Conn. App. 218

Daniel Shepro, with whom, on the brief, was Heidi C. Clark, for the appellant (defendant)

Raymond A. Garcia, with whom was William S. Wilson II, for the appellee (plaintiff).

Opinion

MIHALAKOS, J.

The defendant land development company, Milford Partners, Inc., appeals from the judgment of the trial court quieting title to certain disputed real property in the plaintiff, Caswell Cove Condominium Association, Inc. The defendant, the successor declarant to the original declarant of a common interest community, claims that the court improperly (1) declared void the fourth amendment to the original declaration of condominium, (2) declared the fourteenth amendment to the declaration of condominium invalid and ineffective, and (3) denied the defendant's motion to strike for nonjoinder of necessary parties. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. This action arises from the defendant's withdrawal of approximately five acres of property (property) from the southern end of the fortythree acre common interest community known as Caswell Cove Condominium (condominium) in Milford and the defendant's attempt to establish an easement over the common areas of the condominium property. The plaintiff is the association of unit owners of the condominium. The condominiums were created by a declaration of condominium (declaration) recorded in the Milford land records on September 19, 1988, by the

58 Conn. App. 219

original developer and declarant, Milford River Associates. Between July, 1990, and September, 1992, Milford River Associates was succeeded by the defendant

The survey attached to the declaration, submitted as schedule A-3, depicted the location of thirteen potential building sites, five of which were required to be developed. These five buildings comprised four sections, designated as sections I, II, III and IV on the survey.¹

Fourteen amendments to the declaration subsequently were recorded. The fourth amendment, specifically, reflected changes in the maximum number of units that might be built and added terms to address the construction, regulation and transfer of garage units while also amending several schedules to the declaration. Additionally, the fourth amendment had attached, as schedule A-3, a new survey that replaced the original survey. This amendment and the schedules were recorded in the land records. The amended survey accompanying the fourth amendment made significant changes in the declaration. It delineated only three developmental sections instead of four. Section IV, which previously had been designated "must be built," was redacted and withdrawn from the condominium, and the land formerly encompassed by this withdrawn area was reserved as the remaining lands of the defendant. Furthermore, a notation was added stating that the "[r]emainder of buildings, roads, recreational areas, parking areas and marina area as indicated need not be built at this time."

A fifth amendment to the declaration subsequently was recorded by the defendant, which added portions

58 Conn. App. 220

of the land that had been removed from the condominium by the fourth amendment back into the condominium, and also made adjustments to the number of units to be constructed and revisions to the allocation of interests among the units. Additionally, the amended survey to the fourth amendment was further amended to reflect the defendant's exercise of its development rights. The amended survey to the fifth amendment reenacted section IV and delineated it as a phase that "must be built."

On September 19, 1995, the fourteenth amendment was recorded. It reserved a permanent easement across common areas of the condominium in favor of the remaining lands removed pursuant to the fourth amendment. Additionally, it stated that the remaining developmental rights, with respect to these lands, were withdrawn from the condominium.

On February 26, 1996, the plaintiff brought an action to challenge the defendant's exercise of its claimed developmental rights and the validity of the fourteenth amendment to the declaration. The plaintiff sought to quiet title to the withdrawn property and to have the related easement declared as being of no force and effect. The plaintiff also alleged that the defendant wilfully violated provisions of the Common Interest Ownership Act (act), General Statutes § 47-200 et seq., and the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The defendant thereafter unsuccessfully sought to have the plaintiffs complaint stricken as legally insufficient.

On October 16, 1998, the court rendered...