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Watson v. Village at Northshore I Association, Inc.

Supreme Court of Vermont

February 9, 2018

Roy H.A. Watson III
v.
The Village at Northshore I Association, Inc.

         On Appeal from Superior Court, Chittenden Unit, Civil Division Helen M. Toor, J.

          Brooks G. McArthur and David J. Williams of Jarvis, McArthur & Williams, Burlington, for Plaintiff-Appellant.

          Christina A. Jensen of Lisman and Leckerling, P.C., Burlington, for Defendant-Appellee.

          PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

          EATON, J.

         ¶ 1. This appeal from cross-motions for summary judgment involves a long-standing dispute between a condominium unit owner, Roy H.A. Watson III, and the organization that manages his condominium, the Village at Northshore I Association (Association). The legal issues center around the application of two laws, the Condominium Ownership Act (COA) and the Common Interest Ownership Act (CIOA), to the Association's governing documents. The trial court ruled in favor of the Association and granted it declaratory judgment on all thirteen issues that are before this Court on appeal. As to nine of the thirteen issues, we affirm the trial court's judgment in favor of the Association. As to two issues, we reverse and enter declaratory judgment in favor of Watson. As to one issue, we affirm the trial court's decision in favor of the Association in part and reverse and enter declaratory judgment in Watson's favor in part. And as to the remaining issue, we remand to the trial court for additional factfinding.

I. Facts

         ¶ 2. The Association was created in 1986 by an original declaration document, the Declaration of Condominium of the Village at Northshore I (Original Declaration). Physically, Northshore is a collection of 136 condominium units in twenty-five buildings.[1] The units are a combination of two-story townhouse units and one-story garden homes. Watson purchased his unit at Northshore in 1987, and his deed specifies that his ownership interest is in "an undivided interest in the Common Areas and facilities including the use of the garage(s) shown on said site plan as No. 132, all as set forth in the Declaration [dated February 21, 1986]." The percentage of undivided interest in the common areas that each unit owns is specified in a "Schedule of Assigned Values, Common Element Ownership and Common Expense Liability" that is attached to the Original and Amended Declarations as Exhibit C. Watson's unit, No. 132, has an assigned value of $90, 000, and like the owners of all other units with that assigned value, Watson owns 0.6781% of the common elements and is liable for that percentage of the annual common element expenses; other units with higher assigned values own a correspondingly higher interest in the common elements, which correlates to a higher common expense liability.

         ¶ 3. The Association itself is a nonprofit, nonstock organization incorporated under the laws of Vermont whose membership is limited to the owners of units at Northshore. The Association is organized "for the purpose of administering and managing [Northshore] in accordance with the Declaration, " and its responsibilities include holding, regulating, and managing portions of Northshore for all unit owners in common, setting and collecting annual dues, and providing voting rights for administration of Association affairs. Each owner is automatically entitled to the benefits of membership in the Association, subject to rules adopted by the Board of Directors (Board). Among the benefits of membership is a right to vote in Association affairs, with each unit being allocated one vote. The Board is comprised of members of the Association and is designated to act on behalf of the Association. Its powers include, among other things, proposing amendments to the Declaration, adopting and amending bylaws and rules, making contracts, improving and managing commonly owned property, and imposing and receiving payments and fees from unit owners. The Association, its members, and the Board are all governed by the terms of the Association's Declaration and Bylaws, as well as by overarching statutory provisions, and this appeal involves overlapping disagreements about those sources of law.

         ¶ 4. The first source of law is statutory. The Legislature enacted the COA, 27 V.S.A. Chapter 15, in 1968. By the terms of the Original Declaration that was in place in 1987 when Watson purchased his unit, the Association was subject to the COA: "[T]he [Association] hereby submits the Property to the provisions of Chapter 15 Title 27 of the Vermont Statutes Annotated, known as the Vermont Condominium Ownership Act." See 1967, No. 228 (Adj. Sess.), § 1; 27 V.S.A. § 1301. In 1998, however, Vermont adopted the CIOA, which went into effect on January 1, 1999. 1997, No. 104 (Adj. Sess.), §§ 3, 6. Some, but not all, sections of the CIOA applied retroactively to common interest communities that were created prior to January 1, 1999; other sections of the CIOA applied "only to events and circumstances occurring after December 31, 2011." 27A V.S.A. § 1-204(a)(1)-(2) (listing sections that apply to preexisting common interest communities). Accordingly, the sections listed in 27A V.S.A. § 1-204(a)(1) applied to the Association as soon as the CIOA went into effect in 1999, while the sections listed in § 1-204(a)(2) applied starting in January 2012. Any other aspect of the Declaration not covered by § 1-204(a)(2) continued to be subject to the COA. Additionally, the Association fully adopted the CIOA in 2012, so any amendments to the Declaration after 2012 were subject to the CIOA.

         ¶ 5. The central disagreement between the parties involves the Declaration and how it allocates ownership interest in the physical structures that make up Northshore, including privately owned areas and commonly owned areas, and the Declaration's amendment process. Between 1986 and 2012, the Association amended the Original Declaration multiple times, and in 2012, it adopted and recorded a new declaration, the Amended Declaration, that completely replaced the Original Declaration. Both the Original and the Amended Declarations distinguish between units, common elements, and limited common elements, all of which have specific definitions. First, the Original Declaration defines "Common Area" or "Common Element" as "parts of the property as defined in the [COA]"[2] and "parts of the property other than the Units." Article III of the Declaration provides an exhaustive list of common elements: the property on which the units sit and shared property; all rights, easements, restrictions and agreements associated with that property; all portions of buildings in Northshore, except for units; and all improvements other than the units.

         ¶ 6. Second, the Original Declaration defines "Limited Common Elements" as "those portions of the Common Elements reserved for the exclusive use of one or more, but less than all, of the Units." Article III clarifies that limited common elements include "[a]ny doorsteps, stoops, porches, decks, patios and all exterior doors and windows, equipment storage areas, closets or other fixtures or improvements designated to serve, attached to, or adjacent to a single Unit, " as well as "garage spaces" depicted on a map that forms part of the Declaration. Finally, "Unit Estate" and "Unit" encompass "all the components of ownership held by an Owner, including the rights and interest of the Owner in and to the Unit and the rights of use and undivided interest in the Common Area." Additionally, the Declaration defines the boundaries of each unit as the bottom surface of the ceilings of the highest floor and the top surface of the subflooring on the first floor, plus the innermost surface of the walls. No unit sits above any other unit, meaning that the attic space over each unit is accessible only to that unit.

         ¶ 7. Finally, in addition to statutory law and the Declaration, the Association and its members are subject to internal Bylaws and Rules. The original Bylaws were in place until 2012, when the Association voted to adopt a new Declaration and a new set of Bylaws. The Rules that were in effect when this litigation began were adopted on April 29, 2013, and were subsequently amended on September 25, 2013. The Bylaws and Rules that are the most relevant to the present appeal provide as follows. First, the Board is composed of five volunteer members elected by the Association and has always had the authority to establish rules and regulations regarding the use of common elements. Specifically, the original Bylaws place in the Board the responsibility for maintaining, repairing, and replacing the common elements. The Amended Declaration and Bylaws further clarify that the Board has the authority to adopt rules "that affect the use of or behavior in Units to . . . implement a provision of the Declaration." Rule 2.5.7 of the most recently amended rules requires that unit owners maintain a temperature monitor that is capable of alerting the Board or another designee of the Association any time the temperature in a unit drops below forty-five degrees.

         ¶ 8. Rule 6.1 provides that, for each violation found by the Board after notice and hearing of any Association rule or bylaw, the violator shall be fined fifty dollars, plus ten dollars per day if the violation is "of a continuing nature." Article VII of the amended Rules applies to over-the-air-reception devices and permits unit owners to install satellite dishes in accordance with the restrictions outlined in the rules. Rule 8.1 prohibits any "modification or addition to any unit" without prior written approval from the Board.

         ¶ 9. Additionally, the Declaration and Bylaws regulate the voting and amendment procedures applicable to the Board. Section 4.02 of the amended Bylaws outlines the requirements for Board meetings. The Board is required to hold an annual meeting at which: the president and treasurer must report on "the activities and financial condition of the Association"; the members must elect "one or more Directors in accordance with the requirements of these Bylaws"; and members must vote on other issues that are before the Board. The Board is required to provide notice to the members prior to any Board meeting and must hold a regular meeting no more than forty-five days following an annual meeting and at least once every four months. In addition, the Board has the power to hold executive sessions "from which others are excluded" by an affirmative vote of two-thirds of the Directors present at a Board meeting, at which the Board is authorized to discuss various limited matters that may require confidentiality, including legal matters. Finally, the Board has the power to amend the Declaration in accordance with the provisions outlined in the applicable statute.

II. Procedural History

         ¶ 10. The present litigation began in August 2013, when Watson, without an attorney, filed a complaint for declaratory judgment. In October 2014, following the resolution of an appeal to this Court on a matter not presently relevant, Watson-with the assistance of counsel-filed an amended thirty-page complaint, again seeking only declaratory relief, that raised thirteen distinct issues. Those were captioned as follows:

(1) improper easements in VNS [Village at Northshore] amended and restated declaration; (2) improper rule mandating the use of temperature monitor devices; (3) required 48 hour notice and permission for members to comment at VNS Board meetings; (4) Association['s] failure to properly maintain the common element fence behind my unit; (5) Association['s] past and present ongoing illegal rules and policies regard[ing] satellite dish and antenna installations; (6) unit expansions; (7) illegal removal of "roof structures" from my allocation of limited common elements; (8) Association['s] failure to ensure the safety of unit #133; (9) failure of the VNS Board to record my garage transfer amendment; (10) garage definitions as pertaining to their allocation as limited common elements; (11) VNS Board and President Marmelstein wrongfully terminated me as VNS assistant secretary; (12) VNS Board of Directors improperly withheld Association records from me; and (13) the Association, through President Marmelstein and the Board of Directors, violated sections 10.01 and 9.01(c) of the VNS amended and restated declaration and did so in an arbitrary and capricious way.

         ¶ 11. In January 2015, Watson requested subpoenas for the Association's former attorneys, seeking "documents . . . related to the drafting and preparation" of the Amended Declaration and Bylaws. The trial court, citing three separate bases, quashed the subpoenas in April 2015. Then, on June 9, 2015, the Association moved to dismiss, or in the alternative, for summary judgment on all thirteen issues. On August 6, 2015, Watson moved to voluntarily withdraw four issues: the Association's failure to ensure the safety of Unit 133; Watson's wrongful termination as the Board's assistant secretary; the Board's improper decision to withhold records from Watson; and the Association's alleged violation of sections 10.01 and 9.01(c) of the Amended Declaration. In response, the Association moved to dismiss those issues with prejudice and order Watson to pay fees and costs. The trial court, reasoning that the Association had invested time and money to investigate facts related to those four contentions, granted the Association's motion and dismissed those issues with prejudice, but declined to order fees and costs.

         ¶ 12. The trial court ruled in favor of the Association on all the remaining claims. First, it concluded that it lacked jurisdiction to decide the question of whether the Association's forty- eight-hour notice requirement violated Watson's rights because it found that Watson had only alleged a generalized grievance. See infra, ¶¶ 66-67. Next, it dismissed Watson's claim related to his antenna based on federal law because, it reasoned, the federal rule that Watson cited did not create a private right of action. See infra, ¶¶ 39-41. The court then granted judgment in favor of the Association on all but two of the remaining issues, reasoning for each claim that the Association had complied with the applicable statutory framework, internal governing documents, and Vermont common law.

         ¶ 13. On two issues-one relating to the fence in Watson's yard and the other relating to the Association's refusal to record Watson's garage deed-the court determined that there were disputed issues of material fact. It held a trial on July 27, 2016, and ruled in favor of the Association on both issues, finding that the Association had fulfilled its obligation to repair the fence and that Watson had engaged in "intentionally oppositional behavior" with respect to the garage deed.

         ¶ 14. Watson timely appealed all thirteen issues to this Court on August 24, 2016. In November 2016, a single Justice of this Court granted Watson's motion to file an enlarged brief and printed case; the Association's motion for extended briefing was also granted in January 2017. Watson ultimately filed a ninety-six-page brief and a 1750-page printed case, and the Association filed a sixty-four-page reply brief and a thirty-three-page supplemental printed case.[3]

         ¶ 15. Watson's appeal requests declaratory relief for each of the thirteen issues. The "availability of declaratory relief turns on whether the plaintiff is suffering the threat of actual injury to a protected legal interest, " and this Court has the authority to enter declaratory judgment when appropriate. See Dernier v. Mortg. Network, Inc., 2013 VT 96, ¶ 38, 195 Vt. 113, __A.3d __(quotation omitted); see also Cupola Golf Course, Inc. v. Dooley, 2006 VT 25, ¶ 10, 179 Vt. 427, __A.3d __(per curiam) (describing 12 V.S.A. § 4711 as giving courts authority to enter declaratory judgment "to adjudicate and define specific rights and liabilities"). We review the court's decisions on the availability of declaratory relief and summary judgment de novo. Summary judgment is appropriate only where there exists no disputed issue of material fact. "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Gauthier v. Keurig Green Mountain, Inc., 2015 VT 108, ¶ 14, 200 Vt. 125, 129 A.3d 108 (quotation omitted). Although we view the record as a whole, "[i]n determining whether there is a genuine issue as to any material fact, we will accept as true the allegations made in opposition to the motion for summary judgment, so long as they are supported by affidavits or other evidentiary material." Id. (quotation omitted); Brod v. Agency of Nat. Res., 2007 VT 87, ¶ 2, 182 Vt. 234, 936 A.2d 1286 (explaining standard of review for dismissal of declaratory judgment claim). Additionally, we review the trial court's interpretations of the COA, CIOA, and the Association's governing documents de novo. See Madowitz v. Woods at Killington Owners' Ass'n, 2010 VT 37, ¶¶ 9-12, 188 Vt. 197, 6 A.3d 1117 (interpreting COA and homeowners' association's governing documents under de novo standard).

         III. Analysis of Issues

         A. Issue One: Does the access easement in the Amended Declaration violate Watson's property rights?

         ¶ 16. According to Watson, the Amended Declaration violates his rights under Vermont property law because it expanded the Association's easement to enter his unit for purposes beyond those authorized in the COA and the CIOA. Specifically, Watson argues that § 5.04(b) of the Amended Declaration unlawfully grants the Association the power to enter his unit to enforce compliance with the Association's rules and that that power is not authorized by the CIOA. The trial court, looking to the Original and Amended Declarations, ruled in favor of the Association and issued a declaratory judgment that "[b]y accepting the deed to his unit, Watson accepted the terms of the covenants, " including their duly enacted amendments. However, because we agree with Watson that the Amended Declaration purports to grant the Association powers beyond the scope of those authorized by the CIOA, we reverse on this issue and issue a declaratory judgment that the Association's entry easement permits access to homeowners' units only to the extent allowed by the CIOA-namely, to allow the association to carry out its duty to "maint[ain], repair and replace[]" common elements. 27A V.S.A. § 3-107(a).

         ¶ 17. Article V, § 5.04(b) of the Amended Declaration provides that the Board may "enter any Unit (a) from time to time at any time in the event of emergency or in order to accomplish emergency repairs; and (b) after prior notice, to determine compliance with this Declaration and Rules, to enforce such compliance and for any other lawful purpose." Additionally, Article VI, § 6.02(e) provides that specified members of the Board may, "during reasonable hours, " enter any unit "to inspect it and any improvements in connection with an application [for construction] or to ensure compliance with the Board's action." In contrast, Article V(E) of the Original Declaration gave the Board the authority to "access across [each] Unit reasonably necessary" to provide "[m]aintenance, repair and replacement of the Common Elements."

         ¶ 18. The legal issue before this Court is whether these provisions of the Amended Declaration attempted to grant the Board more power than the Board can lawfully exercise under the initial Declaration or CIOA. The CIOA controls the contents of the Amended Declaration because the Legislature, in enacting the CIOA, decided that, apart from several exceptions not applicable here, "this title applies to all condominiums in this state after the effective date of this title." 27A V.S.A. § 1-201(a). Accordingly, we look to 27A V.S.A. § 3-107(a), the relevant portion of the CIOA, to determine if the Amended Declaration grants the Association rights not authorized by the CIOA.

         ¶ 19. Section 3-107(a) provides that, in the interest of upkeeping a common interest community, "[e]ach unit owner shall provide to the association and the other unit owners, their agents or employees, access through his or her unit reasonably necessary" to allow the association to carry out its duty to "maint[ain], repair and replace[]" common elements. 27A V.S.A. § 3-107(a). Thus, to the extent that the Amended Declaration grants the Association the authority to enter a unit in order to maintain, repair or replace common elements, the Amended Declaration is a valid exercise of the Association's power because the CIOA expressly contemplates that a condominium's governing organization will have that authority. See id.

         ¶ 20. However, the statute is silent on the question of what additional authority the Association may assert in terms of expanded access easements. Where a statute "does not address" a legal issue and where the statute is not "clearly inconsistent with the common law" and does not "attempt[] to cover the entire subject matter, " the common law controls. Langle v. Kurkul, 146 Vt. 513, 516-17, 510 A.2d 1301, 1303 (1986) (holding that Vermont's Dram Shop Act, in providing cause of action in strict liability to third persons injured by inebriates, did not preempt common law cause of action in negligence); see also 1 V.S.A. § 271 (adopting common law where it "is not repugnant to the constitution or laws"). Here, the relevant common law is that applicable to access easements. And as this Court has explained, a fundamental principle underlying the common law of access easements is that any expansion of an easement "must be generally of the type originally contemplated" and "must not materially burden the landowner beyond what was intended." See Preseault v. City of Burlington, 2006 VT 63, ¶ 12, 180 Vt. 597, 908 A.2d 419 (mem.); see also Dernier v. Rutland Ry., Light & Power Co., 94 Vt. 187, 194, 110 A. 4, 7 (1920) ("The principle which underlies the use of all easements is that the owner thereof cannot materially increase the burden of it upon the servient estate, nor impose a new or additional burden thereon.").

         ¶ 21. The CIOA-which, apart from 27A V.S.A. § 3-107(a), is silent on the question of access easements-does not "attempt to cover" the entire field of access easements. See Langle, 146 Vt. at 516, 510 A.2d at 1303. Nor is the CIOA, in its silence, "clearly inconsistent with the common law." See id. Accordingly, the common law rule applies, and we must determine whether the Amended Declaration materially increased the scope of the Association's authority to access Watson's unit, thereby imposing on Watson an additional material burden.

         ¶ 22. A comparison of the Original Declaration and the Amended Declaration makes clear that the Amended Declaration materially increased the Association's authority and therefore the burden on Watson's servient estate. Under the Original Declaration, the Association was entitled to enter Watson's unit only as "reasonably necessary" to provide "[m]aintenance, repair and replacement of the Common Elements." In contrast, the Amended Declaration gave the Association the authority to enter Watson's unit, "after prior notice, to determine compliance with this Declaration and Rules, to enforce such compliance and for any other lawful purpose, " and "during reasonable hours, " to enter his unit "to inspect it and any improvements in connection with an application [for construction] or to ensure compliance with the Board's action."

         ¶ 23. The Amended Declaration imposes a material burden on Watson's estate by expanding the scope of the purposes for which the Association may enter Watson's unit. Specifically, the Amended Declaration purports to give the Association the authority to enter Watson's unit to determine compliance with the Declaration and Rules, to enforce compliance, and "for any . . . lawful purpose, " in comparison to the limited authority that the Association had under the Original Declaration to enter his unit only to provide "[m]aintenance, repair and replacement of the Common Elements." Determining and enforcing compliance with the Declaration and Rules were powers not given to the Board in the Original Declaration, to say nothing of entry for "any lawful purpose." These new purposes for entry are a significant expansion of the original scope of the permission to enter a homeowner's unit to provide maintenance, repair, or replacement of the common elements. The Amended Declaration sought to confer permission to enter for any lawful purpose and also included new purposes by authorizing entry to determine and enforce compliance with the Declaration and Rules. The common law applies to the Association's ability to expand its rights under the access easement, and under the common law, the Amended Declaration imposes a material burden on Watson's unit by virtue of the attempt to expand the scope of the access easement. Accordingly, to the extent that the Amended Declaration expands the Association's access beyond what is "reasonably necessary" for "[m]aintenance, repair and replacement of the Common Elements, " we hold that Article V, § 5.04(b) and Article VI, § 6.02(e) of the Amended Declaration are void.

         B. Issue Two: Did the Association have the authority to reclassify roof structures without Watson's consent?

         ¶ 24. According to Watson, the trial court erred when it issued a declaratory judgment in favor of the Association because the Association's Declaration, the CIOA and Vermont's common law all prohibit the Association from reallocating his interest in "roof structures" as a limited common element. This issue presents three subsidiary questions. First, what law applies to the Association's amendment procedure? Second, did the Association comply with the applicable amendment procedure when it enacted the Tenth Amendment reclassifying "roof structures" as limited common elements? And third, does any statutory or common law rule prohibit the Association from enacting the Tenth Amendment without Watson's consent?

         ¶ 25. The amendment procedure in the Original Declaration provides that the Declaration and Bylaws "may be amended only by the agreement of the owners of Units to which two-thirds (2/3rds) of the votes in the COA appertain." In 2008, the Association recorded an amendment to the Declaration, the Roof Structures Amendment, that redefined limited common elements as follows:

Any doorsteps, stoops, porches, decks, patios and all exterior doors and windows, equipment storage areas, attic spaces and roof structures located immediately above a Unit, closets or other fixtures or improvements designated to serve, attached to, or adjacent to a single Unit, but located outside the Unit's boundaries, are Limited Common Elements allocated exclusively to that Unit.

(Underline indicates added text.) The parties do not dispute that the Association adopted the Roof Structures Amendment in accordance with the Original Declaration. Also in 2008, Watson received permission from the Association to install a satellite dish on the chimney above his unit, and he installed the dish in 2009.

         ¶ 26. Then, in 2010, the Association again voted to amend the definition of limited common elements and adopted the Tenth Amendment, which provides:

Any doorsteps, stoops, porches, decks, patios and all exterior doors and windows, equipment storage areas, attic spaces above a Unit and skylights above a Unit, and roof structures located immediately above a Unit, closets or other fixtures or improvements designated to serve, attached to, or adjacent to a single Unit, but located outside the Unit's boundaries, are Limited Common Elements allocated exclusively to that Unit. Although skylights are Limited Common Elements, they are restricted in their use, to wit, no structures, including but not limited to over-the-air reception devices, shall be attached to a skylight.

(Underline indicates added text; strikethrough indicates deleted text.) Again, the parties do not dispute that the Association adopted the Tenth Amendment in accordance with the provisions of the Declaration that applied at the time.

         ¶ 27. Instead, Watson argues that the Tenth Amendment violates his rights because he did not consent to the Amendment's removal of "roof structures" from the list of limited common elements. Specifically, according to Watson, the CIOA, 27A V.S.A. § 1-206(a), controlled amendments to the Original Declaration because the CIOA gives preexisting communities the power to amend their declarations "to achieve any result permitted by this title, regardless of what applicable law provided before this title was enacted." That, Watson reasons, means that the Association was bound by the CIOA when it amended the Declaration, and the CIOA prohibits allocations of property from common elements to anything other than common elements absent "the consent of the unit owners whose units are affected." 27A V.S.A. § 2-108(a).[4] Because he did not consent to the Tenth Amendment, he argues that it is invalid and unenforceable and that he retains an ownership interest in "roof structures" appurtenant to his unit as limited common elements. We disagree.

         ¶ 28. As we explained in ¶ 4, supra, 27A V.S.A. § 1-204(a) lists the sections of the CIOA that apply retroactively to common interest communities that, like the Association, predate Vermont's adoption of the CIOA. Section 1-206(a), the section upon which Watson relies, is not among the provisions listed in § 1-204(a). As such, it does not apply retroactively to the Association, and because the Association adopted the Tenth Amendment and the Roof Structures Amendment prior to 2012, when the Association adopted the CIOA in full, the provisions of the COA that govern an association's amendment process control our analysis. See 27A V.S.A. § 1-204(a) (noting that some listed provisions apply only "to events and circumstances occurring after December 31, 1998" and that some apply only to "events and circumstances occurring after December 31, 2011"). ¶ 29. The COA requires only that an association's declaration include a "[d]escription of the limited common areas and facilities, if any, stating to which apartments or sites their use is reserved, " 27 V.S.A. § 1311(5), and "[t]he method by which the declaration may be amended, " 27 V.S.A. § 1311(11). The Original Declaration, in turn, contained a description of the limited common elements-which was later altered by the Roof Structures and Tenth Amendments-and provides that "the Declaration and Bylaws may be amended only by the agreement of the owners of Units to which two-thirds (2/3rds) of the votes in the COA appertain." Watson does not dispute that the Association adopted the Roof Structures and Tenth Amendments in accordance with that amendment requirement-agreement by two-thirds of the votes allocated to unit owners. We therefore agree with the Association that neither amendment violated the CIOA, which did not apply to the Association at the time of the amendments, or the COA, because the Association satisfied its requirement that the Declaration contain "[t]he method by which the declaration may be amended, " 27 V.S.A. § 1311(11).

         ¶ 30. We next address Watson's argument that even if the Tenth Amendment did not violate any statutory provision, it is nevertheless invalid because it violates his rights under Vermont's common law. Specifically, Watson argues that the Roof Structures Amendment created a covenant, enforceable as a servitude, that could not be terminated without his express consent. To support this argument, he cites 27 V.S.A. § 1307 for the proposition that an "aggrieved apartment or siteowner" may maintain a suit against an association for "[f]ailure to comply with [the covenants, conditions and restrictions set forth in the declaration]." Additionally, he cites Khan v. Alpine Haven Property Owners' Ass'n, 2016 VT 101, ¶ 38, __Vt.__, 153 A.3d 1218, [5]and Nahrstedt v. Lakeside Vill. Condo. Ass'n, 878 P.2d 1275 (Cal. 1994), arguing that under those cases, the Association, as a common interest community, is made up of "covenants and servitudes that create burdens and benefits between the unit owners" and that regardless of how the Association amended the Original Declaration, it could not restrict his ownership interest in "roof structures" without his consent.

         ¶ 31. The cases that Watson cites, however, stand for the opposite proposition-"anyone who buys a unit in a common interest development with knowledge of its owners association's discretionary power accepts 'the risk that the power may be used in a way that benefits the commonality but harms the individual.' " Nahrstedt, 878 P.2d at 1282 (quoting R. Natelson, Consent, Coercion, and "Reasonableness" in Private Law: The Special Case of the Property Owners Association, 51 Ohio. L.J. 41, 43 (1990)). And the statutory provision on which he relies applies to create a private right of action against an association where a unit owner-not the association-has violated an obligation created by the association's declaration or bylaws. See 27 V.S.A. § 1307 ("Failure to comply with [the bylaws, administrative rules, covenants, conditions and restrictions set forth in the declaration or in the deed] shall be grounds for an action to recover sums due, for damages or injunctive relief or both maintainable by the manager or boards of directors on behalf of the association of owners or, in a proper case, by an aggrieved apartment or site owner." (emphasis added)). Accordingly, we are not persuaded by Watson's argument.

         ¶ 32. The question of whether an amended declaration that governs a common interest community creates restrictive covenants[6] that are enforceable against the Association is one of first impression for this Court.

Covenants are "agreement[s] or promise[s] of two or more parties that something is done, will be done, or will not be done, " and are characterized by the type of burden they impose: an affirmative covenant calls for the covenanter to perform an act, while a negative covenant requires the covenanter to refrain from performing one.

Patch v. Springfield Sch. Dist., 2009 VT 117, ¶ 8, 187 Vt. 21, 989 A.2d 500 (alterations in original) (citations omitted). A deed covenant, the kind of covenant at issue here, controls the rights and obligations of common scheme participants, and we interpret such covenants "so as to give effect to the intention of the parties if it can be gathered from the language used when interpreted in connection with, and in reference to, the subject matter and purpose sought to be accomplished at the time the instrument was executed." See McDonough v. W.W. Snow Const. Co., 131 Vt. 436, 441, 306 A.2d 119, 122 (1973). The restrictive deed covenant Watson seeks to enforce is one that grants him the exclusive use and control of "roof structures, " including the skylights connected to his unit.

         ¶ 33. The law in other states generally accepts the principle that a common interest community's declaration creates enforceable restrictive covenants, but courts have only enforced those covenants in the context of an association attempting to hold a unit owner to a provision of the declaration. See, e.g., Nahrstedt, 878 P.2d at 1281 (enforcing covenant against unit owner and noting that "restrictions on the use of property in any common interest development may limit activities conducted in the common areas as well as in the confines of the home itself" and "[c]ommonly, use restrictions preclude alteration of building exteriors, limit the number of persons that can occupy each unit, and place limitations on-or prohibit altogether-the keeping of pets"); Sullivan v. O'Connor, 961 N.E.2d 143, 152-53 (Mass. Ct. App. 2012) (enforcing implied covenant against unit owner where covenant imposed burden on owners to pay dues to association); Armstrong v. Ledges Homeowners Ass'n, 633 S.E.2d 78, 85-86 ( N.C. 2006) (describing covenants and explaining that "common interest communities establish and maintain the character of a community, in part, by recording a declaration listing multiple covenants to which all community residents agree to abide" and describing association as body created "to enforce the declaration of covenants and manage land for the common benefit of all lot owners"). And this interpretation of the law is in line with an understanding of the role of an association, which we adopt, as the governing body charged with enforcing restrictive covenants; the benefits and burdens of the restrictive covenants memorialized in a declaration inure to and are imposed upon unit owners, not the association itself. Cf. Armstrong, 633 S.E.2d at 86 (describing association as body created "to enforce the declaration of covenants and manage land for the common benefit of all lot owners"). As such, we reject Watson's argument that the Association here had an obligation to obtain his express consent prior to altering his ownership interest in roof structures; Watson purchased his unit "with knowledge of [the Association's] discretionary power" and he therefore "accept[ed] the risk that the power may be used in a way that benefits the commonality but harms the individual." See Nahrstedt, 878 P.2d at 1282 (quotation omitted). The Association followed the legally mandated amendment procedure when it enacted the Roof Structures Amendment and later when it enacted the Tenth Amendment. The trial court's decision on this issue is affirmed.

         C. Issue Three: Did the court erroneously grant summary judgment to the Association on Issue Two-Roof Structures-when it did not request that relief in its motion for summary judgment?

         ¶ 34. Watson argues that the trial court erred by granting summary judgment to the Association on Issue Two-the question of whether the Tenth Amendment to the Amended Declaration violated Watson's rights-because the Association "fail[ed] to comply with [Vermont Rule of Civil Procedure] 56's procedural requirements." Specifically, according to Watson, the Association "gained an unfair advantage" by requesting summary judgment on this issue for the first time only after the trial court had denied Watson's motion for summary judgment, thereby denying Watson the opportunity to respond to the facts and legal arguments that formed the basis for the court's decision. We disagree.

         ¶ 35. Vermont Rule of Civil Procedure 56(a) provides the two-step process by which a party may prevail on a motion for summary judgment: first, the movant must show that there is "no genuine dispute as to any material fact, " and second, the movant must be "entitled to judgment as a matter of law." V.R.C.P. 56(a); see also Gore v. Green Mountain Lakes, Inc., 140 Vt. 262, 264, 438 A.2d 373, 374 (1981). Additionally, once one party has filed a motion for summary judgment, Rule 56(f), "Judgment Independent of the Motion, " gives the court authority to "(1) grant summary judgment for a nonmovant; (2) grant the motion on grounds not raised by a party; or (3) consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute." V.R.C.P. 56(f). Prior to taking one of these actions, the court must give the parties "notice and a reasonable time to respond." Id. As we have previously explained, where the only question before this Court is the application of law to the facts, "our review is de novo." In re Manosh, 2014 VT 95, ¶ 8 n.1, 197 Vt. 424, 108 A.3d 212.

         ¶ 36. The trial court ordered the parties to file motions for summary judgment no later than November 1, 2015. The Association filed a motion requesting judgment as a matter of law or summary judgment on all of the claims Watson brought before the trial court on June 11, 2015. Watson does not dispute that the Association's motion was timely, nor does he dispute that he had adequate notice and an opportunity to respond to the motion. Rather, Watson appears to argue that the Association was not entitled to summary judgment on Issue Two-whether the Tenth Amendment violated his property rights-because the Association did not request that relief in its first motion for summary judgment.[7]

         ¶ 37. Issue Two-whether the Tenth Amendment violated Watson's property rights-is a question of law that required the court below only to apply the law to the undisputed facts. See V.R.C.P. 56(a). Watson has not identified any material facts from the trial court's hearing with which he disagrees, nor has he identified any disputed material facts that the trial court erroneously failed to consider. Accordingly, for the purposes of this appeal, there are no disputed material facts. Cf. Gallipo v. City of Rutland, 2005 VT 83, ¶ 33, 178 Vt. 244, 882 A.2d 1177 (holding that trial court properly deemed as admitted facts in statement provided by defendant with summary judgment motion because trial court did not challenge them as required by Rule 56).

         ¶ 38. Thus, because there were no material facts at issue with respect to Issue Two, the court in this case had the authority to "consider summary judgment on its own, " or grant summary judgment to either party on "grounds not raised by a party, " so long as both sides had sufficient notice and time to respond. V.R.C.P. 56(f). Watson does not argue that he did not have notice or sufficient time to respond to the Association's first motion for summary judgment. Accordingly, this dispute falls squarely within the process outlined in Rule 56(f), and the trial court did not err when it granted summary judgment to the Association on a "ground[] not raised by [either] party." V.R.C.P. 56(f)(2). The trial court is affirmed on this issue.

D. Issue Four: Does Watson have a federal right to install an antenna on the chimney or roof of his unit pursuant to a rule promulgated by ...


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