Sarita and Nafis Khan, Eric and Katherine Gadpaille, Judith LaPointe & Robert Earley
Alpine Haven Property Owners' Association, Inc.
Appeal from Superior Court, Franklin Unit, Civil Division A.
Gregory Rainville, J.
Kade, Montgomery, for Plaintiffs-Appellees.
A. Gensburg, St. Johnsbury, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton,
1. Both sides appeal in this long-running dispute involving
Alpine Haven, a sprawling subdivision located along Vermont
Route 242 in the Towns of Montgomery and Westfield. The
dispositive question for this Court is whether the undisputed
facts support the trial court's conclusion that the
"chalets" within Alpine Haven constitute a
preexisting common interest community (CIC) governed by Title
27A of the Vermont Statutes Annotated. The trial court found
a "series of deeds" sufficient to constitute a
"declaration" of a CIC under the Vermont Common
Interest Ownership Act (VCIOA). Plaintiffs, who own
chalets/undeveloped lots in Alpine Haven, argue that the
court erred in reaching this conclusion. We agree, and
therefore reverse and remand for additional proceedings.
Given our conclusion, we need not reach the majority of the
parties' remaining arguments.
2. This is the latest in a series of lawsuits, spanning more
than thirty years, between defendant Alpine Haven Property
Owners' Association, Inc. (AHPOA) and certain home/lot
owners. Plaintiffs filed the instant complaint against AHPOA
in May 2011. Plaintiffs asserted that their property is not
part of a CIC and that they were not required by their deeds
to be AHPOA members. Plaintiffs acknowledged an obligation to
pay the reasonable costs of services provided and accepted,
including maintaining the right-of-way, snowplowing, street
lighting, and garbage collection. They argued, however, that
they should not have to pay AHPOA for special assessments,
annual meeting costs, insurance, road expansion or
improvements, or any other AHPOA expenses not specified in
their deeds. Plaintiffs also argued that a 2011 "Amended
and Restated" declaration was not validly adopted.
3. AHPOA counterclaimed, asserting that Alpine Haven was a
preexisting CIC. It sought a declaratory judgment regarding a
member's right to "resign" from AHPOA and
rescind obligations as a unit owner, including the obligation
to pay assessed fees. AHPOA maintained that plaintiffs were
obligated, and failed, to pay properly assessed fees. AHPOA
also argued that plaintiffs had knowingly received benefits
at AHPOA's expense, including road maintenance, snow
plowing, lighting, garbage collection, and the administration
of such services and amenities, and that it would be
inequitable for plaintiffs not to compensate and reimburse
AHPOA for their value.
4. We begin with an overview of the law governing this
dispute. The VCIOA is based on the Uniform Common Interest
Ownership Act (UCIOA) and it became effective on January 1,
1999. This Act "combined, in a single comprehensive law,
prior uniform laws in this area (the Uniform Condominium Act
(1980), the Uniform Planned Community Act (1980) and the
Model Real Estate Cooperative Act (1981))." UCIOA, Pref.
Note (1994). The term "common interest community"
is defined for the first time in the UCIOA, drawing on the
definition of "planned community" in the Uniform
Planned Community Act. 27A V.S.A. § 1-103, cmt. 8. This
term is "used through the [UCIOA] to refer collectively
to the three particular forms of common interest community:
condominiums, cooperatives, and planned communities."
Id. Because the terms condominium and cooperative
are precisely defined, a planned community is a catch-all for
"everything else" that satisfies the general
definition of a CIC. Id.
5. A CIC is broadly defined as "real estate described in
a declaration with respect to which a person, by virtue of
the person's ownership of a unit, is obligated to pay for
a share of real estate taxes on, insurance premiums,
maintenance, or improvement of, or services or other expenses
related to common elements, other units, or other real estate
other than that unit described in the declaration."
Id. § 1-103(7). Compare UPCA § 1-103(21)
(defining "planned community" as "real estate
with respect to which any person, by virtue of his ownership
of a unit, is obligated to pay for real property taxes,
insurance premiums, maintenance or improvement of other real
estate described in a declaration").
6. A "declaration" means "any instruments,
however denominated, that create a common interest community
and any amendments to those instruments." 27A V.S.A. §
1-103(13). For CICs created after January 1, 1999,
declarations must contain very specific information set forth
by statute, including the name of the CIC and the
association; the name of each municipality in which any part
of the CIC is located; a legally sufficient description of
the real estate included in the CIC; a statement of the
maximum number of units that the declarant reserves the right
to create; a description of the boundaries of each unit
created by the declaration, including the identifying number
of the unit; a description of any limited common elements
and, with respect to planned communities, any real estate
which is or will be common elements; and numerous other
items. See id. § 2-105(a)(1)-(15).
7. Certain provisions of the VCOIA apply to CICs that existed
prior to its enactment, even though these CICs may not have a
declaration that strictly complies with the statute.
Id. § 1-204, cmt. 3. In taking this approach,
the Act aims to "measurably increase the ability of the
unit owners to effectively manage the association, and . . .
help to encourage the marketability of common interest
communities created under early condominium statutes or under
common law." Id.
8. Presumably because the VCIOA encompasses CICs created
under common law, the definition of "declaration"
includes not only "the traditional condominium
declaration with which most practitioners are familiar,
" and "the declaration of covenants, conditions,
and restrictions (CC&R's) so common in planned unit
developments, " but also "a series of deeds to
units with common mutually beneficial restrictions, or to any
other instruments which create the relationship which
constitutes a common interest community." Id.
§ 1-103, cmt. 8; see Restatement (Third) of Prop.
(Servitudes), § 6.2 cmt. e. (explaining that
"[b]efore declarations came into common use, the
servitudes that created a common-interest community were
usually set forth in the deeds to the individual lots, or
shown on the face of the recorded plat").
9. With this legal background in mind, we turn to the
undisputed facts. In the 1960s, Hubert and Caroline Daberer
assembled approximately 500 acres of land to create what has
become known as Alpine Haven. There was no "master plan,
" site survey, or contemporaneous subdivision plat, and
no overall series of permit applications or approvals. There
was no "declaration" of, or bylaws for, any planned
community filed or recorded at the outset of the project.
10. The Daberers sold some lots personally, but relatively
early on, they transferred their land to two corporations
that they controlled: Alpine Haven, Inc. for the Westfield
portion (as of May 10, 1963) and Leisure Properties, Inc. for
the Montgomery portion of the land (as of November 29, 1967).
Currently, Alpine Haven contains more than eighty-five lots
with homes, several undeveloped or "large lots, "
several lots with some commercial activity, and three lots
that AHPOA owns and maintains as common land for various
purposes. AHPOA owns and maintains 4.5 miles of roads within
the development, including the streetlights and snowplowing.
Almost all of the lots owners depend on the private roads to
access their property.
11. Between 1963 and 1965, sixteen lots and/or chalets were
sold in Westfield. The first deed, from the Daberers
personally to the Bretons in January 1963, gave the grantees
a "right-of-way leading from the main road, " and
the Daberers promised to "pipe water to such
construction site on said premises as may be indicated by the
grantees." The deed prohibited commercial use of the
property, and limited use to a home with a garage. The second
deed, from the Daberers to the Racines in March 1963,
contained the same right-of-way grant, the same covenant
regarding use of the property, as well as a promise by the
Daberers "to keep and maintain said right-of-way in good
reasonable state of repair, " "supply water to said
premises as now piped, " "provide garbage removal
for said premises, " and maintain the existing
"street lights in the area of said premises." For
these services, the Racines agreed to pay the Daberers (or
assigns) $100 per year.
12. Alpine Haven, Inc. conveyed most of the remaining lots in
Westfield. The next fourteen deeds (through 1965) were
similar, and all contained language similar to the Racine
deed with respect to the services and facilities to be
provided and maintained by the grantor, and the restrictive
covenant regarding use of the property. ...