Clampit v. Cambridge Phase II Corp., 64470

• Decision Date: 23 August 1994
• Docket Number: No. 64470,64470
• Citation: 884 S.W.2d 340
• Parties: Pauline CLAMPIT, et al., Respondent, v. CAMBRIDGE PHASE II CORPORATION, Now Known as Cambridge Leasing Corporation, Appellant.
• Court: Missouri Court of Appeals

Page 340

884 S.W.2d 340

Pauline CLAMPIT, et al., Respondent, v. CAMBRIDGE PHASE II CORPORATION, Now Known as Cambridge

Leasing Corporation, Appellant.

No. 64470.

Missouri Court of Appeals,

Eastern District,

Division Three.

Aug. 23, 1994.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Sept. 20, 1994.

Application to Transfer Denied

Oct. 25, 1994.

Merle L. Silverstein, Rosenblum, Goldenhersh, Silverstein & Zafft, P.C., Clayton, for respondent.

Cordell P. Schulten, Lewis, Rice & Fingersh, St. Louis, for appellant.

SIMON, Presiding Judge.

Cambridge Phase II Corporation (now known as Cambridge Leasing Corporation), appellant, appeals a declaratory judgment in favor of Pauline Clampit, Margaret Littleton, Lee K. Schwartz and Betty Schwartz, respondents, granting them an easement in perpetuity to use the common elements and common areas, including the swimming pool located on appellant's property.

In its point on appeal, appellant asserts that the trial court erred in granting a declaratory judgment in favor of the respondents because its conclusion is contrary to both the evidence adduced at trial, including the express language of the condominium declarations at issue, and the settled principles of law applicable to construing legal instruments and to creating consensual easements. We reverse and remand.

Appellant owns Aspen Ridge Condominium, which was once part of a development known as Country Club Estates. The development was divided into sections, with Cambridge Courts Condominium (formerly Country Club Estates Condominium, Section I) and Aspen Ridge Condominium (formerly Cambridge Courts Condominium, Section II) comprising the majority of the development. Respondents are residents and owners of condominium units in the first section, Cambridge Courts Condominium. Each development is governed by a separate condominium declaration.

On October 24, 1974, the original Condominium Declaration for Country Club Estates Condominium, Section I (now Cambridge Courts Condominium) was executed, and provides in pertinent part:

ARTICLE 3: COMMON ELEMENTS:

Section 3.1: Included in the common elements are:

(a) The property excepting the units, and including parking facilities, driveways, parking areas, gardens, lawns and sidewalks....

....

(e) Any auxiliary buildings, maintenance buildings, park area, swimming pools, recreation buildings and any other structures which may at any time be erected or situated on the property....

ARTICLE FIVE: EASEMENTS:

Section 5.5: Cross-Easements:

Cross-easements are hereby established between each [Cambridge Courts] Condominium and Country Club Estates Development whereby the Developer, owners, unit owners, their families, tenants, guests, invitees, servants and agents shall be permitted to use the roads, pedestrian walks, unassigned parking spaces and common gardens and lawn areas of [Cambridge Courts] Condominium and Country Club Estates Development as are now or hereafter established. In the event any [Cambridge Courts] Condominium or Country Club Estates Development does not provide for a reciprocal cross-easement, then this Section 5.5 shall not be operative with respect to such Condominium Development. [Emphasis ours.]

Construction of Cambridge Courts Condominium was completed in 1976 and constituted the only residential units in the entire development. In 1975, a swimming pool was built on the northern tip of the Aspen Ridge tract. In August 1976, the First Amendment to the original Condominium Declaration was recorded ("Amendment I"). Amendment I provided for changes in the expenses section of the Declaration, referring to a Trust Indenture that was recorded on the same day that grants the Trustees of the condominium authority to make assessments for certain expenses, including a specific assessment for the maintenance and upkeep of the swimming pool. The Trust Indenture was discontinued in 1978.

The Second Amendment to the Cambridge Courts Declaration was recorded in April, 1977 ("Amendment II"), and adds the following description of a parcel of land named Country Club Estates Development, found in Section 5.5, which reads, "the entire 10.061 acres, more or less, described on Exhibit D hereto." The Third Amendment, recorded in June, 1978, changed the name of the condominium from "Country Club Estates" to "Cambridge Courts."

In 1979, appellant purchased Section II of Cambridge Courts, and on April 4, 1980, a declaration was recorded for Cambridge Courts Condominium II, now Aspen Ridge ("Aspen Ridge Declaration") the following year. Construction of Aspen Ridge Condominium commenced in 1980. The Aspen Ridge Declaration provides in pertinent part:

ARTICLE V

COMMON ELEMENTS

A. DESCRIPTION:

The common elements consists of all portions of the Development, other than the Units. Without limiting the generality of the foregoing, the Common Elements shall include the land, outside walks and driveways, landscaping, outside parking areas, stairs, outside decks, a swimming pool, entrances and exits, structural parts of the Buildings, basements, or crawl spaces, attics, pipes, ducts, flues, chutes, conduits, wires and other utility installations to the outlets, and such component parts of walls, floors and ceilings as are not located within the Units.....

ARTICLE VI

GENERAL PROVISIONS AS TO UNITS AND COMMON ELEMENTS

....

C. SECTION I EASEMENTS:

(1) In conformity with Section 5.5 of the Declaration of [Cambridge Courts] Condominium ... as amended and recorded ... and in consideration for the easements granted therein, easements are hereby established between [Aspen Ridge Condominium] and Cambridge Courts Condominium formerly known as Country Club Estates Condominium Section I whose Declaration of Condominium as amended is referred to above ... whereby the Cambridge Courts Condominium ... unit owners and their families, tenants, guests, invitees, servants and agents shall be permitted to use the roads, streets, access drives and pedestrian walks, unassigned parking spaces and common gardens or lawn areas of [Aspen Ridge] Condominiums. [Emphasis ours.]

Subsection (2) of "Section I Easements" provides that expenses for Claytonbrook Drive and the swimming pool shall be shared with Cambridge Courts Condominium. Subsection (3) reiterates that Cambridge Courts and Aspen Ridge are separate entities, by providing:

Notwithstanding the aforesaid easements and shared expenses described in this Paragraph C, [Aspen Ridge] Condominium and Cambridge Courts Condominium are governed by separate and independent condominium declarations and [Aspen Ridge] Condominium shall not be considered a part of or "add-on" to Cambridge Courts Condominium.

The plat attached to the Aspen Ridge Declaration does not indicate a pool. The pool is not specifically identified on the plat.

In July, 1987, an Amended and Restated Declaration was recorded for Aspen Ridge Condominium ("Amended Aspen Ridge Declaration"), and it contains the same provision found in the Aspen Ridge Declaration granting corresponding cross-easements to Cambridge Courts Condominium. It also contains a comparable provision for shared expenses for the maintenance and upkeep of the swimming pool located in Aspen Ridge. In addition, the Amended Aspen Ridge Declaration grants an easement over the swimming pool and the common elements to and from the swimming pool to owners of the "Adjoining Property," which later became Aspen Ridge, Section II.

Respondents contend that from the time Cambridge Court owners first moved into their units in 1975 and up until 1991, they utilized the swimming pool without any question or challenge from anyone. Further, from 1979 until 1991, Cambridge Courts' managing partner and the Board of Managers handled all maintenance and repairs of the pool. Cambridge Courts supplied the electricity; paid 100% of all pool expenses in 1979 through 1981, and after 1982 allocated expenses of the pool between the new residents of Aspen Ridge and Cambridge Courts by invoicing Aspen Ridge for its pro rata share; and supplied the water to the pool until 1980, when it began to pay Aspen Ridge for its pro rata share of water for the swimming pool. Brochures advertising the sale of Cambridge Courts units included pictures and a description of the swimming pool.

In 1991, appellant proposed that respondents open a cul-de-sac on Claytonbrook Drive for a through road, in order to provide better access for its "Adjoining Property" development. Respondents turned down the proposal. Appellant later stated that if respondents gave their permission to open the cul-de-sac, appellant would continue to let respondents use the swimming pool. Appellant did manage to get a street through the cul-de-sac, against the wishes of the respondents. The pool remained open to respondents until the beginning of July, 1992.

In April, 1992, respondents filed an action seeking a declaratory judgment contending that the indentures and declarations of the Cambridge Courts Condominium, which are covenants running with the land, grant to respondents in perpetuity, the easement and the right to use the common areas, including the swimming pool, in the Aspen Ridge Condominium development. Respondents also sought to permanently enjoin appellant from preventing or interfering with respondents' reasonable use of said common areas and swimming pool.

In its Answer, appellant maintained that respondents did not have "an easement or other right arising out of alleged cross-easements" to use the swimming pool, but rather a license. Appellant further answered by way of affirmative defense that respondents were barred from obtaining equitable relief sought in their Petition as a result of: (1) their unclean hands; (2) their being in pari delicto; (3) the doctrine of laches; (4) waiver and estoppel; and (5) the prior agreements relating to the swimming pool use by respondents and respondents' predecessors-in-interest which constitute an accord and satisfaction of...