Nancy Mills, Justice, Superior Court.
Jury-waived trial was held in this matter. For the following reasons, judgment is entered in favor of plaintiff and against defendant on plaintiff's complaint for foreclosure by civil action.
Plaintiff filed its complaint for foreclosure on April 16, 2013. Defendant's counsel accepted service twice. Without objection, the court took judicial notice of the two acceptance of service on defendant by defendant's counsel. (Pl.'s Tabs 12-13.) No answer was filed after either acceptance of service. The court declined to grant plaintiff's motion for default before trial and preferred to hear the evidence. The defendant has, however, waived any affirmative defenses. See M.R. Civ. P. 8(c), 12(b); R.C. Moore, Inc. v. Les-Care Kitchens, Inc., 2007 ME 138, ¶ 24, 931 A.2d 1081; ABN AMRO Mortgage Group v. Willis, 2003 ME 98, ¶ 5, 829 A.2d 527.
The parties stipulated at trial that defendant, who was represented by counsel but did not appear at trial, is not a minor, is not incompetent, and is not in the military.
Plaintiff 48 Bramhall Street Condominium Association was created by a Declaration of Condominium in October 2002. Amendments to the declaration addressed parking spaces and floor plans. All floor plans showed common space between the storage units. The building at 48 Bramhall Street in Portland, Maine consists of three units. (Pl.'s Tab 2 at 1.)
Anne Dalphin was Secretary of plaintiff's Executive Board and became President in October 2012. Defendant was President of the Board prior to Ms. Dalphin. Justin Roig was Secretary of the Board. The Executive Board is responsible for decisions regarding the property and for the imposition of assessments. (Pl.'s Tab 2 at 25.) Ms. Dalphin reviewed and was familiar with the business records relevant to this case, including the lien and notices of fines sent to defendant.
Ms. Dalphin has been a member of plaintiff since December 2009. Defendant became the record owner of unit 3 of the building in 2006. Mr. Roig has owned unit 1 since August 2011.
In May 2012, Brian Stone, defendant's husband, informed members at plaintiff's meeting that he had obtained a marijuana prescription card. He planned to use the locked space in the basement as a grow space for six marijuana plants. Plaintiff recognized the prescription and agreed provisionally to the plan, as long as the grow project did not disturb anyone else in the building and the project was not " seen, smelled, or heard." The minutes of the May 29, 2012 meeting provide:
Kelly [defendant] presented information and documents regarding legality and proper procedure surrounding Brian's growing plans down in the basement, explaining that his plans no longer were to run a business down there but simply to grow up to six plants for himself in the appropriate legal way, in a locked room that only Brian should have access to.
The conversation turned to what sort of usage of storage spaces should be appropriate, and what would need to be involved for this growing plan to work for everyone. Priorities of Units 1 and 2 were making sure that activity in the basement didn't in any way disturb anyone else, and making sure that equal storage space was still retained by all three units after the floorplan was adjusted and clearly laid out. A plan was described which would allot three hundred square feet of space for each unit and specify which areas of the basement were storage space for each unit. Plans were made to measure space out in the basement to make sure that such spaces could be designated. This issue was decided to be revisited for a vote to designate specific spaces at the next meeting, after a proper measuring.
The other major concern with the basement that was brought up was the fact that the electricity in the basement is all mixed-up, and connected primarily to Unit 1 and 2's electricity bills. Making all common electricity be attached to a single condo association bill was discussed as a plan.
It was made clear that from now on any work on common elements of the building needs to be agreed upon and voted on by the board in condo meetings before any work is done, and that it is inappropriate to make use of other units' property or electricity or the like. In order to avoid miscommunication and misunderstandings, all agreed it is best that everything function as the condo documents describe. How strictly to ascribe to what the condo documents describe, such as using Robert's Rules of Order, was discussed.
* * * *
It was agreed that we will from now on be going strictly by the condo documents, including that common spaces, in the basement and yard, for instance, should be free of personal items. Justin reiterated that anything that happens in the basement is like it is happening in Unit 1, so thin are the floors, so things like noisiness or smoking, for instance, shouldn't be happening in the basement. It was agreed that any construction or such work that happens, for instance in the basement or yard, even if in something personal like a storage space, should be checked with the other Units to make sure that the noise and such will be okay.
* * * *
It was agreed that, by the next Tuesday, Brian would have the basement cleared of his personal stuff and work on the basement would be done so that Unit 1 and Unit 2's ...