Gilbert v. Beaver Dam Ass'n of Stratford

• Decision Date: 26 October 2004
• Docket Number: No. 23729.,23729.
• Citation: 858 A.2d 860,85 Conn.App. 663
• Parties: Gil GILBERT v. BEAVER DAM ASSOCIATION OF STRATFORD, INC., et al.
• Court: Connecticut Court of Appeals

858 A.2d 860

85 Conn.App. 663

Gil GILBERT v. BEAVER DAM ASSOCIATION OF STRATFORD, INC., et al.

No. 23729.

Appellate Court of Connecticut.

Argued June 4, 2004.

Decided October 26, 2004.

Barbara M. Schellenberg, with whom was Jonathan S. Bowman, Bridgeport, for the appellant-cross appellee (plaintiff).

Laurence V. Parnoff, Bridgeport, for the appellees-cross appellants (defendants).

FOTI, SCHALLER and PETERS, Js.

SCHALLER, J.

The plaintiff, Gil Gilbert, appeals and the defendants, Beaver Dam Association of Stratford, Inc. (association), and all the owners of property that abuts the Beaver Dam Lake, cross appeal from the judgment of the trial court rendered after a trial to the court. On appeal, the plaintiff claims that the court improperly held that (1) he could not rely on the Common Interest Ownership Act, General Statutes § 47-200 et seq., (2) the association did not slander the plaintiff's title to his property and (3) the association's bylaws were properly authorized. On cross appeal, the defendants claim that the court improperly (1) precluded them from recovering attorney's fees when they had not placed the issue of attorney's fees before the court, (2) held that the statute of frauds negated their right of first refusal to purchase the plaintiff's property and (3) held that the association could not place a lien on the plaintiff's property. We affirm in part and reverse in part the judgment of the trial court.

The court found the following facts. "Beaver Dam Lake is a fifty-eight acre lake in Stratford. In the 1930s, the lake and the surrounding area, which forms the watershed of the lake, were owned by The Loch Lenidow Realty Company (Loch Lenidow). That entity sold off some lots around the lake and, in 1944, it deeded to the association the property on which an earthen dam was located and the lake and lake bed below the dam. In this deed, the grantor reserved the right to permit six docks at specified locations on the lake from lots still owned by Loch Lenidow and obligated itself to include in the deeds of its remaining lots provisions that would prevent access by the public and reserve use of the lake to the members of the association. It further obligated itself to sell its remaining lots `subject ... to all reasonable rules and regulations now in effect or such as may be generally imposed from time to time upon all the owners having the use of Beaver Dam Lake, by [the association], its successors or assigns.' This deed stated that the conveyance of the lake and dam to the association were subject to `[g]rants to the use of the waters of Beaver Dam Lake contained in deeds of conveyance' set forth in various conveyances of lots.

"One of the conveyances contained in this list was the conveyance in 1933, of two tracts to Jesse E. Langsdorf. That property, which was eventually purchased by the plaintiff, passed to Martha K. Langsdorf, who sold it, with a house and outbuildings, to Frances L. Greenebaum in May, 1972. Frances Greenebaum conveyed the property to herself and her husband, Henry Greenebaum. Together, the Greenebaums conveyed the property, which was known as 3260 Huntington Road, to [the plaintiff] and [his wife] Ruth Gilbert on April 21, 1999.

"The deed by which the Greenebaums conveyed the property to the Gilberts in 1999, stated that the conveyance was subject to a number of conditions and restrictions including `[c]ovenants, agreements, rights, reservations and conditions as set forth in deeds to Jesse E. Langsdorf dated July 10, 1933, and recorded in Volume 148 at Page 308 and dated February 13, 1934, and recorded in Volume 150 at Page 91... of the ... Stratford Land Records.'

"The first deed referred to in this provision of the Gilberts' deed provided [among other things] that ... `said premises shall be subject to such other reasonable restrictions or limitations as the grantor or any such association may impose thereon.' The second deed whose restrictions to title were incorporated in the deed that the Greenebaums conveyed to the Gilberts includes the same provision that has been set forth above, along with other restrictions.

These deed restrictions clearly provide that the grantee took the property in question with restrictions and limitations on developing it....

* * *

"In 1991, the grant from Loch Lenidow to the association was entered into the land records of Stratford, and the [then newly enacted] bylaws [dealing with membership and use of the lake] were entered in those records, indexed under the association's name both as grantor and grantee.

"Henry Greenebaum, who was deceased at the time of trial, was deeply involved in the association's effort to preserve the quality of the lake and the environment around it. He provided the association's president, Jay Esposito, with a steady stream of newspaper clippings and messages noting dangers to lakes from development in their watersheds, including the danger that the state department of environmental protection might require onerous and expensive procedures, such as draining the lake, if the association failed to be vigorous in its protection of water quality. In 1991, Henry Greenebaum wrote a history of the lake and the association that concluded with the statement `[i]t is advisable that no new construction adjacent to the lake be started without regard to the By-laws and Lake Association Rules....'

"In late March or early April, 1999, in negotiations conducted without an attorney, the plaintiff entered into a contract to buy the Greenebaums' 7.8 acre property. Though the plaintiff did not enter this contract into evidence, he testified that the purchase was subject to the results of percolation tests and deep test holes to determine whether the property could be developed by subdividing and building additional residences. Though the plaintiff asserted that he did not learn that there was an association that regulated use and development of all the lake-front properties, the [trial] court [did] not find this testimony credible in light of Henry Greenebaum's long history of commitment to the association's efforts to regulate development around the lake. It seem[ed] most unlikely that Greenebaum failed to mention such regulation to the plaintiff.... [T]he board of managers for the association met on May 10, 1999, to discuss, among other things, the need to enact an explicit provision that all plans for subdivision, construction or development of the properties around the lake be submitted to the association for approval by three quarters of the association's members. The board noted in its minutes that landowners had in the past submitted such plans to the association on the basis of an understanding that their deeds required such submission and approval. Six of the seven members of the board of managers voted in favor of the provision. Pursuant to the requirements of its bylaws, which require that amendments receive a three-fourths majority of the total number of votes cast at any special meeting, the association held a special meeting of the members on June 11, 1999, and presented the proposed new amendments to the bylaws for ratification. No evidence was presented concerning the number of association members who cast votes at the June 11, 1999 meeting or thereafter. Of the twenty-four properties listed on the proposed amendment, nineteen signed.

* * *

"The amended bylaws provided, at article VI, § 4, that `[n]o property abutting on the water of Beaver Dam Lake, whether now owned by a non-member of the Association or formerly owned by any member of the Association, shall be subdivided, built upon or otherwise developed without the prior consent of a three-quarter (3/4) a[sic] majority vote of the members of the Association.'" Although the plaintiff attended several functions open only to members, he did not pay the membership dues bill that was issued on July 1, 1999. "In his pleadings, [however] he asserted that he was not a member of the association and took the position that because he was not a member he was not subject to the association's bylaws and regulations. The association filed a lien against the plaintiff's property for the dues for the 1999-2000 year. The association did not seek to recover dues from the plaintiff for any year other than 1999. The association had begun using such liens to collect unpaid dues in February, 1999.

"The association also filed on the land records of each owner of property abutting Beaver Dam Lake, including the plaintiff's, the bylaws that the town clerk had indexed under the association's name in 1991. Additionally, it filed on the land records the amendment to the bylaws bearing the signatures of six of the seven members of the board of managers and the amendments to the bylaws voted on at the association meeting on June 11, 1999. The plaintiff did not authorize the recording of any of these documents."

After the pleadings were closed, the plaintiff filed a motion for partial summary judgment claiming that the association's purported right of first refusal as contained in the association's amended regulations and bylaws was invalid. The court granted the motion, finding that the "regulation that purported to give the association and its various members a right of first refusal in the event that an owner of property around the lake contracted to sell it" was unenforceable for failure to satisfy the statute of frauds because the identity of the holder of the right was not sufficiently stated. After trial, the court found for the defendants on all of the plaintiff's remaining claims except his claim that the defendants improperly had placed a lien on his property. This appeal followed. Additional facts will be set forth as necessary.

I APPEAL

A

The plaintiff claims that the court improperly held that he could not rely on the Common Interest Ownership Act (act) to support his claim that the association was not valid. The plaintiff argues that Practice Book §...