ROBERT D. BRADY, JR. et al. Plaintiffs
TARALAINE ESTATES HOMEOWNERS ASSOCIATION et al. Defendants
Counsel for Plaintiffs: Erika Frank, Esq. Law Office of Erika
Counsel for Defendants: Dawn Dyer, Esq. Law Office of Dawn D.
DECISION AND JUDGMENT
civil case came before the court for trial April 24, 2018,
with all parties and counsel present. The trial was
the trial, counsel submitted proposed findings of fact and
conclusions of law, the last of which was docketed May 15,
2018, at which point the court took the case under
advisement. Based on the entire record, the court makes
findings of fact, adopts conclusions of law, and renders
judgment as follows:
1989, a Maine partnership called Taralaine Developers
established a 10-lot residential subdivision in the Town of
Sebago, abutting Anderson Road near the western shore of
Sebago Lake. The subdivision was called Taralaine Estates.
The subdivision property included, in addition to the 10
lots, a private road called Taralaine Drive and another road
called Kiddy Drive; a dedicated open space area of 3.921
acres, and a waterfront lot set aside as dedicated open space
for the benefit of the subdivision lots. See Defs.
Ex. 4 (subdivision plan for Taralaine Estates).
waterfront lot is located along the lake shore, across
Anderson Drive from the subdivision lots. It was originally
created in 1957 as Lot 9 in the Great Shoals Terrace
subdivision development, and, as a result, several Great
Shoals Terrace lot owners have access rights, along with the
Taralaine Estates lot owners. See Defs. Ex. 3
(consent judgment in Page v. Taralaine Developers,
Super. Ct., Cum. Cty., Me, Docket No. CV-95-343, Jan. 8,
Taralaine Estates subdivision is depicted on the Taralaine
Estates subdivision plan recorded at Plan Book 180, Page 53,
Cumberland County Registry of Deeds. See Defs. Ex.
4. Following Planning Board approval of the subdivision plan
in August 1989, the Taralaine Estates subdivision was legally
established pursuant to a Declaration of Common Easements,
Restrictions, Covenants and Reservations of Rights dated
October 12, 1989 [hereinafter "the Declaration"],
and recorded in the Cumberland County Registry of Deeds, Book
8945, Pages 315-21.
Declaration calls for the rights and obligations it creates
to be "administered, enforced and funded in part by a
Maine non-profit corporation called The Taralaine Estates
Homeowners Association." Defs. Ex.10 at 1. Article III
of the Declaration defines the structure and operation of the
Association. Id. at 4.
Records of the Maine Secretary of State indicate that the
developer formed the Taralaine Estates Homeowners
Association, but that it went through a series of
administrative suspensions for failure to file annual reports
during the 1990's and 2000's and is now
administratively dissolved. In 2012, another Maine
non-profit, also called Taralaine Estates Homeowners
Association, was formed-it is that entity which is a
Defendant in this case. See Defs. Ex. 19.
Declaration defines the dedicated common areas and roads of
the subdivision and establishes several covenants regarding
the size and use of residential structures and other matters.
See Defs. Ex. 10 at 1-3. It provides for
the covenants to run with the land and be binding on all lot
owners and their heirs and assigns. Id. at 5.
Article II of the Declaration provides for the Declarant to
deed over to the Association the roadways, open space,
easements and common areas in the subdivision "prior to
the sale by Declarant of the seventh (7th) lot in
the subdivision," and that "the Declarant's
obligations and liabilities with respect to same shall
Article V of the Declaration sets forth declarant rights,
"running in favor of Declarant, its successors and
assigns," including the right, "[u]ntil the initial
sale by Declarant of at least seventy (70%) percent of the
total number of lots in the Subdivision," to appoint or
remove officers of the Association and to veto any action of
the Association. Defs. Ex. 10 at 5. The same Article also
provides that, ''[u]ntil the initial sale of each and
every lot in the Subdivision, Declarant may: . . . [m]odify
any lot not then conveyed by Declarant." Id.
Taralaine Estates subdivision plan recorded at Plan Book 180,
Page 53, Cumberland County Registry of Deeds, sets
forth Planning Board conditions and requirements for the
subdivision. See Defs. Ex. 4.
May 1989, the Taralaine Estates Homeowners Association
enacted a First Amendment to its bylaws adding "[t]o
Article VIII the following new sections" 1 through 6.
However, the original Association bylaws themselves are not
in the record and, according to the parties, have not been
years elapsed after the Taralaine Estates subdivision was
approved, without Taralaine Developers having sold any of the
10 subdivision lots.
1999, Taralaine Developers sold all of the real estate in the
Taralaine Estates subdivision to Robb Peck McCooey Real
Estate Management Corporation. See Defs. Ex. 12. The
Taralaine Developers deed to the Robb Peck firm conveys the
shared waterfront lot to the rights of the owners of Lots
1-10 to use it, along with others. The deed conveys the 10
subdivision lots and the roadways and open space in the
Taralaine Estates subdivision "subject to the October
1989 Declaration of Covenants recorded in Book 8945, Page 315
and to all restrictions shown on the 1989 plan recorded in
Plan Book 180, Page 53." Id.
its face, the deed conveys only real estate-the waterfront
parcel, identified as "Parcel 1"; the Taralaine
Estates subdivision lots, roads, open spaces and reserved
right of way, collectively identified as "Parcel
2"; three other strips of land not pertinent here, and
"any other real estate in Sebago, Maine described in the
1988 deed to Taralaine Developers . .." Defs. Ex. 12.
deed from Taralaine Developers to Robb Peck McCooey contains
no mention of any transfer of declarant rights, nor does it
refer more generally to the transfer of any personal rights
or interests that could be deemed to include declarant
rights. See id. Also, there is no bill of sale or
other evidence in the record indicating that Taralaine
Developers transferred its declarant rights to the Robb Peck
McCooey corporation by some means other than through the
Later in 1999, the Robb Peck McCooey company sold Lot 3 in
the Taralaine Estates subdivision to Alvin Fleming and
Rosemary Kulow. See Defs. Ex. 16.
2001, the Robb Peck McCooey corporation merged with another
entity into an entity named Remco, LLC., See Defs.
2005, Remco LLC sold Lot 9 to Plaintiffs Robert D. Brady, Jr.
and Jennifer M. Brady. See Defs. Ex. 15.
2006, Plaintiff Edward Manning, as trustee for two family
trusts, the Courtney Manor Realty Trust and the Blake Manor
Realty Trust, purchased Lot 3 from Alvin Fleming and Rosemary
Kulow, and purchased Lot 2 from Remco, LLC., See
Defs. Ex. 16.
During most of the twelve years that Robb Peck McCooey and/or
Remco owned Taralaine Estates, those companies evidently
arranged for periodic grading and snow plowing on Taralaine
Drive and for mowing of common areas, and also arranged for
the dock at the common waterfront lot to be installed each
spring and removed each autumn, and otherwise managed the
activities that a declarant or a homeowners' association
would be responsible for. A Remco representative named Bob
Murphy was the liaison with Plaintiff Brady and Plaintiff
Manning. Remco sent them bills every six months for
Remco's plowing, mowing and other expenses, and Mr.
Murphy indicated that each of the 10 lots was being allocated
one/tenth of the expenses. Plaintiffs Brady and Manning made
contributions toward common road or waterfront expenses while
Remco was managing those activities. See Pls. Ex.
3. They viewed Remco as doing a good job overall.
record does not reveal in what capacity Robb Peck McCooey or
Remco were purporting to act-their actions were consistent
with what a subdivision declarant might do in managing common
area matters, but were also consistent with what the owner of
the majority of the lots in a subdivision might do in taking
the lead in managing the Homeowners' Association.
However, no formal meetings of the Association were convened.
There is no deed or conveyance in the record establishing
that Taralaine Developers, Robb Peck McCooey or Remco ever
deeded the roadways or the common areas to the Association.
However, the First Amendment to the Taralaine Estates
Homeowners Association bylaws indicates that, as of May 1989,
the Association was to own and maintain Taralaine Drive and
the emergency access right of way. See Defs. Ex. 18,
During 2009-11, the last two years of Remco's ownership,
Remco essentially stopped managing road and waterfront
activity, and Plaintiffs Brady and/or Manning had to take
over what Remco had been doing in terms of snow plowing and