Locust Lake Village Property v. Wengerd

• Decision Date: 25 May 2006
• Citation: 899 A.2d 1193
• Court: Pennsylvania Commonwealth Court
• Parties: LOCUST LAKE VILLAGE PROPERTY OWNERS ASSOCIATION v. David S. WENGERD and Emma L. Wengerd, husband and wife Locust Lake Village Property Owners Association v. David S. Wengerd Appeal of Wengerd, husband and wife.

899 A.2d 1193

LOCUST LAKE VILLAGE PROPERTY OWNERS ASSOCIATION v. David S. WENGERD and Emma L. Wengerd, husband and wife Locust Lake Village Property Owners Association v. David S. Wengerd

Appeal of Wengerd, husband and wife.

Commonwealth Court of Pennsylvania.

Argued April 3, 2006.

Decided May 25, 2006.

Peter B. Foster, Harrisburg, for appellants.

Gregory D. Malaska, Stroudsburg, for appellee.

BEFORE: McGINLEY, Judge, and LEADBETTER, Judge, and McCLOSKEY, Senior Judge.

OPINION BY Judge LEADBETTER.

David S. and Emma L. Wengerd appeal from the order of the Court of Common Pleas of Monroe County (common pleas) that granted summary judgment in favor of Locust Lake Village Property Owners Association (Association) and against the Wengerds in the consolidated matter before it.

In 2003, David Wengerd, individually, and jointly with Emma Wengerd, purchased twenty-four (24) units in the Locust Lake Village Development, a planned community in Tobyhanna Township, Monroe County, by judicial sale and/or from the repository for unsold properties.¹ Restrictive covenants are included in the chains of title for each of the Wengerds' properties.² After the Wengerds acquired these properties, the Association attempted to collect annual dues and assessments from them as unit owners,³ contending that certain restrictive covenants and express and implied easements running with the land obligated the Wengerds for fees, assessments charges, and dues imposed by the Association for its maintenance and operation of the common elements of the development. These fees represented the units' proportionate share of the maintenance costs, and the Association sought only charges that came due after the Wengerds acquired title to the units. The Wengerds, however, failed to pay these charges, believing that purchase of the properties pursuant to Section 612(a) of the Real Estate Tax Sale Law (Law), Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. § 5860.612(a), relating to judicial sales, and Section 627(b) of the Law, 72 P.S. § 5860.627(b),⁴ relating to repository tax sales, extinguished any restrictive covenants and express and implied easements with respect to the properties, and, therefore, relieved them of any obligation to pay the monies sought.

On February 3, 2005, the Association filed a civil action against David and Emma Wengerd, docketed at No. 872 CIVIL 2005, and a civil action against David Wengerd, docketed at No. 873 CIVIL 2005, for these claimed fees, dues and assessments. By stipulation of the parties, the Association filed amended complaints on June 1, 2005. On June 29, 2005, the Association filed a motion for summary judgment in both cases, contending, inter alia, that the UPCA affords it the power to collect assessments for common expenses from unit owners and that "[a]s owners of easement rights, [the Wengerds are] obligated to pay the costs of maintenance." Plaintiff's Motion for Summary Judgment (No. 872 CIVIL 2005), paras. 29 and 35; Plaintiff's Motion for Summary Judgment (No. 873 CIVIL 2005), paras. 28 and 34.⁵ Further, the Association alleged that "[t]here is no authority for the proposition that a judicial or tax sale will affirmatively remove or negate covenants running with the land, including those requiring payment of association assessments" and "[t]he affirmative restrictive covenants were not wiped ou[t][n]or divested by the [Wengerds'] acquisition [of said parcels] from judicial or repository sale." Plaintiff's Motion for Summary Judgment (No. 872 CIVIL 2005), paras. 39 and 41; Plaintiff's Motion for Summary Judgment (No. 873 CIVIL 2005), paras. 38 and 40. On August 23, 2005, common pleas issued an order granting the Association's motions for summary judgment. In doing so, common pleas awarded $13,774.81 plus costs and attorneys' fees in favor of the Association and against the Wengerds (872 CIVIL 2005) and $16,092.12 plus costs and attorneys' fees in favor of the Association and against David Wengerd (873 CIVIL 2005). The Wengerds then appealed to Superior Court, which transferred the case to this court.⁶

First, the Wengerds argue that Sections 612(a) and 627(b) of the Real Estate Tax Sale Law act to extinguish "any restrictive covenants and express and implied easements" relevant to their properties at the time of their purchase by judicial sale or from repository, and, therefore, they are not liable for the charges that the Association is claiming. In this regard, they contend that easements and restrictive covenants are interests in real property that come within the meaning of "estates" as delineated in the statutory language detailing that the properties shall be sold or conveyed "free and clear of all . . . estates of whatsoever kind ...." 72 P.S. §§ 5860.612(a), 5860.627(b) (emphasis added).

Although the Real Estate Tax Sale Law does not contain a definition of "estate," Black's Law Dictionary describes it, inter alia, as "[t]he amount, degree, nature, and quality of a person's interest in land or other property." Black's Law Dictionary 567 (7th ed.1999). Particularly illuminating for our purposes, the First Restatement of Property provides in pertinent part as follows:

§ 9. ESTATE

The word "estate," as it is used in this Restatement, means an interest in land which

(a) is or may become possessory; and

(b) is ownership measured in terms of duration.

Comment:

a. Requirement—An interest in land. The word "estate" is used in this Restatement only to designate an interest in land. Interests which are quite analogous to estates for life and estates in fee simple do exist in things other than land but such interests are not herein designated as estates.

b. Requirement—Is or may become possessory. All present possessory interests in land, with the possible exception of the tenancy at sufferance (§ 22) have always been designated by both courts and text writers as estates. The word "possessory" as here used has a considerable exclusionary effect. Such interests as easements, profits, restrictive covenants and agreements affecting the use of land, powers of appointment and rents are not possessory interest s and are not interests which may become possessory. . . .

Restatement (First) of Property § 9 (1936) (emphasis in original and added).⁷

Simply put, this definition of "estate" and the explanatory comments thereto do not support the Wengerds' contention. Covenants running with the land and easements are not "estates" within the meaning of the Real Estate Tax Sale Law because those interests are non-possessory.⁸ Furthermore, "it is not for courts to add to a statute, by interpretation, a requirement which the legislature did not see fit to include[.]" O'Donoghue v. Laurel Savings Assoc., 556 Pa. 349, 357, 728 A.2d 914, 917 (1999) (citation omitted). If the General Assembly had wanted covenants and easements to be extinguished at the time of judicial and repository tax sales, it could have specifically so stated.

As well, our Supreme Court, in Tide Water Pipe Company v. Bell, 280 Pa. 104, 124 A. 351 (1924), in contemplating whether a right-of-way was discharged by a treasurer's sale in light of an earlier tax sale statute,⁹ stated in relevant part as follows: "We find nothing ... to cause us to differentiate a tax sale from other judicial sales. . . . We therefore hold that if land is sold for taxes, an easement, servitude, or interest in the nature of an easement, is not destroyed, but the purchaser takes subject thereto." Id. at 117, 124 A. at 355. Although the statute at issue in Tide Water Pipe Co. did not implicate the precise question of statutory interpretation now before us, we nevertheless find its holding instructive. See also Gilfillan v. Haven, 161 Pa.Super. 114, 53 A.2d 901 (1947) (relying on Tide Water Pipe Co.); Richmond v. Bennett, 205 Pa. 470, 55 A. 17 (1903).¹⁰

Next, the Wengerds argue that common pleas erred in finding that they gained easement rights over the subdivisions' common elements and facilities when they acquired their units, because their tax claim deeds do not refer to a subdivision plan or a development plan. However, the Wengerds acknowledge that "[i]n the chain of title for [their] deeds are restrictive covenants[,]" Wengerds' brief at 8, and the law is clear that "`a grantee is chargeable with notice of everything affecting his title which could be discovered by an examination of the records of the deeds or other muniments of title of his grantor.'" Piper v. Mowris, 466 Pa. 89, 97, 351 A.2d 635, 639 (1976) [quoting Finley v. Glenn, 303 Pa. 131, 136, 154 A. 299, 301 (1931)]. The Wengerds' failure to perform the requisite due diligence is to their own detriment, where the tax claim bureau deeds contain lot and section numbers as well as other information presumably associating the properties with Locust Lake Village.

Given the above analysis, we reject the Wengerds' argument that they are not liable for the Association's claimed charges because the Real Estate Tax Sale Law effectively trumped the UPCA. Instead, controlling here, this court explained in Spinnler Point Colony Association v. Nash, 689 A.2d 1026 (Pa.Cmwlth.1997) that property owners in a private residential development who had the right to travel the development's roads and to access lake waters were obligated to pay a proportionate share for repair and maintenance of the development's roads, facilities and amenities. Id. at 1029. In reaching this conclusion, despite the fact that the property owners' chain of title did not refer to a property owners' association, we quoted our sister court in Meadow Run and Mountain Lake Park Association v. Berkel, 409 Pa.Super. 637, 598 A.2d 1024, 1026 (1991), that

residential communities ... are "analogous to mini-governments" and as such are dependent on the collection of assessments to maintain and provide essential and recreational facilities. When ownership of property within a residential community allows the owners to utilize the roads and...