Alpine Haven Property Owners' Association, Inc.
Harry Brewin and Lynette Brewin
Appeal from Superior Court, Orleans Unit, Civil Division
Robert R. Bent, J.
W. Scharf of Kohn Rath Danon Lynch & Scharf, LLP,
Hinesburg, for Plaintiff-Appellant.
Charles S. Martin and Thomas M. Kester of Charles S. Martin
& Associates, P.C., Barre, for Defendants-Appellees.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
1. Plaintiff Alpine Haven Property Owners' Association,
Inc. (AHPOA) appeals from the trial court's decision in
its collection action against defendant-homeowners Harry and
Lynette Brewin. In awarding judgment to AHPOA, the court
calculated what it considered a reasonable annual fee that
AHPOA could charge defendants for services it provides,
including garbage pickup and road maintenance. As set forth
below, we conclude that the court erred in replacing
AHPOA's fee with its own given the absence of any
evidence to show that AHPOA acted in bad faith or that its
fee was unreasonable. We reverse the court's decision and
remand for entry of a final judgment order consistent with
2. Defendants live in Alpine Haven, "a sprawling
subdivision located along Vermont Route 242 in the Towns of
Montgomery and Westfield." Khan v. Alpine Haven
Prop. Owners' Assoc., 2016 VT 101, ¶ 1, 203 Vt.
251, 153 A.3d 1218 (recounting development of Alpine Haven in
detail); see also Alpine Haven Prop. Owners Assoc. v.
Deptula, 2003 VT 51, ¶¶ 2-3, 175 Vt. 559, 830
A.2d 78 (mem.) (same). Development of Alpine Haven began in
the 1960s and it now contains about ninety-two units,
including "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."
Khan, 2016 VT 101, ¶ 10. There are "4.5
miles of roads within the development," and
"[a]lmost all of the lot owners depend on the private
roads to access their property." Id.
3. AHPOA is a Vermont nonprofit corporation run by
volunteers. In 1998, the original developers of Alpine Haven
conveyed to AHPOA "ownership of, and all of the
maintenance and service-provision responsibilities for, the
road network, snowplowing, street lights and garbage
disposal." Id. ¶ 22. Several years later,
AHPOA sought to take advantage of the newly enacted Vermont
Common Interest Ownership Act (VCIOA), 27A V.S.A.
§§ 1-101-4-120. AHPOA declared Alpine Haven to be a
common interest community (CIC) subject to, and capable of,
invoking the provisions of the Act. See Khan, 2016
VT 101, ¶ 23. This led to litigation, discussed in more
4. This case began in June 2012. AHPOA sued defendants,
alleging that they had not paid their annual assessments for
common expenses since September 2009. In particular, AHPOA claimed
that defendants owed it $14, 688 for assessments between 2010
and 2016.Defendants represented themselves in the
trial court. The court tried the case in two parts. It first
considered if Alpine Haven was a CIC under VCOIA and if
AHPOA's governance documents were properly adopted.
Following a one-day bench trial in November 2014, the court
concluded that Alpine Haven was a preexisting CIC that fell
within the VCIOA but that certain amendments to Alpine
Haven's declaration and bylaws were procedurally
defective and void. The court stayed its ruling on the
reasonableness of AHPOA's fees pending a status
conference. The court explained that there was a case
awaiting trial (Khan) that involved a similar
question and it did not want to interfere with those
parties' efforts to settle their dispute.
5. Meanwhile, the trial court in Khan issued an
interlocutory ruling similarly concluding that Alpine Haven
was a preexisting CIC for purposes of VCIOA. The plaintiffs
in that case appealed to this Court and we reversed in
September 2016. We held that "[w]hile it might seem
apparent in hindsight that Alpine Haven 'has become'
a CIC, we cannot see how it would have been apparent to
certain early buyers, at the time of their purchase, that
their lots were part of a CIC." Id. ¶ 37.
We directed the trial court, on remand, to address the basis
on which AHPOA could "calculate the fees for deeded
services it has provided to each of the plaintiffs'
properties." Id. ¶ 40. The Khan
proceedings are ongoing.
6. Given our ruling in Khan, the trial court in this
case no longer relied on the VCIOA and instead focused on the
terms of defendants' deed. Following a second evidentiary
hearing in November 2016, the court made the following
findings. Defendants' lot was created in 1963. Defendants
purchased their lot in May 1994. Defendants' deed
There is also hereby conveyed a right-of-way leading from the
main highway along the road as now traveled to the above
There is also granted the right to take water as now piped to
the above premises.
The grantor hereby agrees to keep and maintain said
right-of-way in a good reasonable state of repair and agrees
to supply water to said premises as now piped and it agrees
to supply garbage removal for said premises and to maintain
the streetlights in the area of said premises as now in