Chimney Hill Owners' Ass'n, Inc. v. Antignani, Nos. 264-77

Docket Nº265-77 and 268-77
Citation136 Vt. 446, 392 A.2d 423
Case DateSeptember 12, 1978
CourtUnited States State Supreme Court of Vermont

Page 423

392 A.2d 423
136 Vt. 446
CHIMNEY HILL OWNERS' ASSOCIATION, INC.
v.
Serafin R. ANTIGNANI and Gloria R. Antignani.
CHIMNEY HILL OWNERS' ASSOCIATION, INC.
v.
EASTERN WOODWORKING COMPANY.
CHIMNEY HILL OWNERS' ASSOCIATION, INC.
v.
Kenneth G. KEATINGE and Margaret Keatinge.
Nos. 264-77, 265-77 and 268-77.
Supreme Court of Vermont.
Sept. 12, 1978.

Page 425

[136 Vt. 448] John S. Burgess, Brattleboro, and Kiel & Freeman, Springfield, for plaintiff.

McCarty & Rifkin, Wilmington, for defendants.

Before [136 Vt. 446] BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

[136 Vt. 448] HILL, Justice.

The plaintiff brought these actions to recover assessments allegedly due on lots owned by the defendants in Chimney Hill in Wilmington, Vermont. After a trial, findings of fact, conclusions and an order were filed by the district court awarding judgment to the defendants. The plaintiff appeals.

Chimney Hill is a recreational second home development begun in 1966 by Chimney Hill Corporation. The area consists of in excess of 900 lots. Most owners in the development have purchased only one lot; approximately 30 owners, however, including these defendants, hold multiple lots in Chimney Hill.

[136 Vt. 449] In addition to lots, Chimney Hill has a large area, between 300 and 500 acres, that is "common land." On this land, there is a large clubhouse, indoor and outdoor swimming pools, and three tennis courts. Also, the common land includes about 18 miles of roads and a complete underground private water system, which services the community. Chimney Hill Corporation owned and maintained the common land until 1975, when it was conveyed to the plaintiff.

A Declaration of Protective Covenants, Restrictions and Reservations pertaining to Chimney Hill was executed by Chimney Hill Corporation and recorded in the Town Clerk's office in Wilmington. The Declaration was included in each purchase and sales agreement and each deed executed for lots in Chimney Hill. Paragraph 10 of the Declaration is the focus of the dispute in these actions.

Paragraph 10 states that an annual charge shall be assessed against each lot in Chimney Hill and paid "to the grantor, its successors and assigns" for the right to use the common lands, facilities and services maintained and provided by the "grantor, its successors and assigns." The charge is made a debt collectible by suit in a court of competent jurisdiction and a lien on the lot conveyed until paid. Paragraph 10 further provides that acceptance of a deed bound by the Declaration shall be construed to be a covenant by the grantee, his heirs, successors and assigns to pay the charge to the grantor, its successors and assigns. Lastly, Paragraph 10(E) states:

That this charge shall run with and bind the land hereby conveyed, and shall be binding upon the grantee or grantees, his, her, their, or its heirs, executors, administrators, successors and assigns, until May 31, 1988, unless earlier terminated by written release of the grantor, its successors or assigns.

Defendant Eastern Woodworking Company (hereinafter Eastern) is the owner of 11 lots in Chimney Hill acquired in 1968 from the Chimney Hill Corporation. The purchase and sales agreement executed by Eastern contains the usual provisions and has the Declarations printed on the reverse side. Also, the agreement states: "There will be one annual charge . . . until one or more of the lots have been improved. . . . [136 Vt. 450] " The agreement was signed by a Mr. Cullen, then president of Chimney Hill Corporation.

Defendants Keatinge purchased three lots from the Chimney Hill Corporation in December, 1967. Defendants Antignani became the owners of two lots in 1969. Eastern, the Keatinges and the Antignanis were each billed for only one assessment yearly by Chimney Hill Corporation during the period that Chimney Hill Corporation owned and maintained the common lands, facilities and services.

Page 426

The plaintiff is an association of owners of property in Chimney Hill. On May 25, 1975, the plaintiff accepted a quitclaim deed from Chimney Hill Corporation that conveyed to the plaintiff the common lands and facilities of Chimney Hill. Also, Chimney Hill Corporation assigned the right to collect the assessments to the plaintiff, which again was accepted by the plaintiff on May 25, 1975. The plaintiff thus now owns and maintains the common lands and facilities of Chimney Hill. The trial court found that prior to receiving the quitclaim deed and the assignment the plaintiff "was aware that at least some owners of multiple lots paid only a singular assessment." Finally, in 1975, the plaintiff billed the Keatinges for three assessments, the Antignanis for two assessments, and Eastern for eleven assessments. Each of the defendants paid only a singular assessment, and these actions followed.

The trial court awarded judgment to all three defendants. The court concluded that Chimney Hill Corporation released Eastern from any obligation to pay on ten of its lots, as long as the lots remained unimproved, by virtue of the language in its sales agreement specifying one annual charge. Concerning all defendants, the court concluded that the Chimney Hill Corporation had waived all but singular assessments. This conclusion, the court stated, followed from the fact that Chimney Hill Corporation had never billed any of the defendants for more than one assessment, demonstrating a clear intent to waive multiple assessments. The court also noted Mr. Cullen's testimony that it was the corporate policy of Chimney Hill Corporation to bill every multiple lot owner for only one assessment. Finally, the court concluded that these defenses of release and waiver were available and binding on Chimney Hill Corporation's assignee, the plaintiff.

[136 Vt. 451] In these actions, the plaintiff urges a right to recover the assessments in three separate...

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16 practice notes
  • Knight v. McCain, No. 57880
    • United States
    • United States State Supreme Court of Mississippi
    • September 7, 1988
    ...Harris v. Rowe, 593 S.W.2d 303 (Tex.1980); Stubbs v. Hemmert, 567 P.2d 168 (Utah 1977); Chimney Hill Owners' Ass'n, Inc. v. Atnignani, 136 Vt. 446, 392 A.2d 423 (1978); Miller v. Reynolds, 216 Va. 852, 223 S.E.2d 883 (1976); Black v. Evergreen Land Developers, Inc., 75 Wash.2d 241, 450 P.2d......
  • Flying Diamond Oil Corp. v. Newton Sheep Co., No. 19178
    • United States
    • Utah Supreme Court
    • May 25, 1989
    ...[hereafter 5 R. Powell]. In addition, some courts require the covenant to be in writing. Chimney Hill Owners' Assoc., Inc. v. Antignani, 136 Vt. 446, 454-55, 392 A.2d 423, 428 (1978); 5 R. Powell, p 673, at Although the touch-and-concern and intent requirements are somewhat interrelated, th......
  • City of Olympia v. Palzer, No. 52684-2
    • United States
    • United States State Supreme Court of Washington
    • November 13, 1986
    ...of a common plan of development to benefit all of the grantees of the developer. See generally Chimney Hill Owners' Ass'n v. Antignani, 136 Vt. 446, 392 A.2d 423 (1978). The ability of homeowners in a PUD to enforce Page 231 restrictive covenants against original and subsequent property own......
  • Hixson v. Plump, No. 96-578
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 24, 1997
    ...abandonment of a known right and may be evidenced by express words as well as by conduct." Chimney Hill Owners' Ass'n v. Antignani, 136 Vt. 446, 453, 392 A.2d 423, 427 (1978). A waiver "involves both knowledge and intent.' " Liberty Mutual Ins. Co. v. Cleveland, 127 Vt. 99, 1......
  • Request a trial to view additional results
16 cases
  • Knight v. McCain, No. 57880
    • United States
    • United States State Supreme Court of Mississippi
    • September 7, 1988
    ...Harris v. Rowe, 593 S.W.2d 303 (Tex.1980); Stubbs v. Hemmert, 567 P.2d 168 (Utah 1977); Chimney Hill Owners' Ass'n, Inc. v. Atnignani, 136 Vt. 446, 392 A.2d 423 (1978); Miller v. Reynolds, 216 Va. 852, 223 S.E.2d 883 (1976); Black v. Evergreen Land Developers, Inc., 75 Wash.2d 241, 450 P.2d......
  • Flying Diamond Oil Corp. v. Newton Sheep Co., No. 19178
    • United States
    • Utah Supreme Court
    • May 25, 1989
    ...[hereafter 5 R. Powell]. In addition, some courts require the covenant to be in writing. Chimney Hill Owners' Assoc., Inc. v. Antignani, 136 Vt. 446, 454-55, 392 A.2d 423, 428 (1978); 5 R. Powell, p 673, at Although the touch-and-concern and intent requirements are somewhat interrelated, th......
  • City of Olympia v. Palzer, No. 52684-2
    • United States
    • United States State Supreme Court of Washington
    • November 13, 1986
    ...of a common plan of development to benefit all of the grantees of the developer. See generally Chimney Hill Owners' Ass'n v. Antignani, 136 Vt. 446, 392 A.2d 423 (1978). The ability of homeowners in a PUD to enforce Page 231 restrictive covenants against original and subsequent property own......
  • Hixson v. Plump, No. 96-578
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 24, 1997
    ...or abandonment of a known right and may be evidenced by express words as well as by conduct." Chimney Hill Owners' Ass'n v. Antignani, 136 Vt. 446, 453, 392 A.2d 423, 427 (1978). A waiver "involves both knowledge and intent.' " Liberty Mutual Ins. Co. v. Cleveland, 127 Vt. 99, 103, 241 A.2d......
  • Request a trial to view additional results

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