WILLIAM ANDERSON, JUSTICE
was completed on January 22, 2018. The plaintiff was present
and represented by counsel, Pasquale J. Perrino, Esq., while
the defendant was present through a representative and
represented by counsel, Donald Lawson-Stopps, Esq.
a dispute between a property owner and a road maintenance
association in which the plaintiff asked the Court to issue a
declaratory judgment that determines whether she is exempt
from the defendant's annual maintenance fee, and if not,
order the defendant to maintain the road used to access her
Ridge Parkway residence in exchange for paying the annual
fee. She also requests that liens the defendant placed on her
property be removed and that she be credited with sums she
has spent to maintain her road against any annual fee
arrearage. The defendant has answered and counterclaimed,
asking the Court to declare that plaintiff has been required
to pay the annual maintenance fee since the year 2000, and to
order that plaintiff pay the sums due, costs of collection,
and attorney fees.
in the litigation, the parties filed motions for summary
judgment concerning the legal issue of whether the plaintiff
was required to pay the annual fee. The Court ruled that
because she owned a lot that was subject to the Declaration
of Restrictions that created the Association, the plaintiff
was subject to paying the annual fee. Because a genuine issue
of material fact existed concerning whether the Association
fulfilled its obligation to maintain Ridge Parkway, the Court
denied summary judgment as to amounts due.
hearing, the Court makes the following factual findings:
1. Plaintiff purchased her property at 18 Ridge Parkway in
2. Defendant did not send plaintiff annual bills or
assessments for the annual fee until 2012.
3. Although Plaintiff was aware of the Declaration of
Restrictions, she did not pay the annual fee. The first
attempt to collect an annual fee was in the year 2008 when an
attorney for the Association wrote her a letter demanding
payment. The present collections effort was commenced in 2012
when defense counsel wrote a letter demanding payment, filed
a lien on plaintiff's property, and began to send an
annual notice of the assessment. Plaintiff has still not paid
any sums toward annual fees, although she has spent over $3,
000 to maintain Ridge Parkway.
4. In fact, the Moosehead Highlands Road Maintenance Property
Owners Association has not maintained Ridge Parkway by
plowing in the winter, grading when appropriate, or engaging
in any other meaningful activities that could be construed as
maintenance. The Court believes plaintiff's testimony on
this issue and notes that her testimony is supported by the
Association's establishment at a September 12, 2000
meeting of an annual fee of $100, based on an estimate for
all roads owned by the association "with the exception
of Ridge Parkway."
incorporation of a declaration into the lot owners' deeds
under these circumstances creates enforceable contractual
rights between the lot owners and developer. Alexander v.
Fairway Villas, 719 A, 2d 103, 105 (Me. 1998). One
cannot recover sums not paid under a contract "if the
non-paying party rightfully withheld payment because the
party seeking damages has materially breached the contract.
Island Terrace Owners Ass'n v. Unit 91, 2012 Me.
Super. LEXIS 192, citing Restatement (Second) Contracts
§ 237 (1981). A material breach is non-performance that
is so important that the other party is justified in
regarding the transaction as having ended. Cellar
Dwellers Inc. v. D'Alessio, 2010 ME 32, ¶ 16,
993 A.2d 1. Whether or not there has been a material breach
is a question of fact. Jenkins v. Walsh Bros., 2001
ME 98, ¶ 13, 776 A.2d 1229.
to paragraph 19 of the Declaration of Restrictions,
"(I)n order to maintain any ... rights of way as may now
of hereafter be laid out in the subdivision, the owner of
each lot... agrees: (a) to pay annually to Moosehead
Highlands, Inc. ... within thirty (30) days after the same
has been billed, such proportionate yearly charge as may be
necessary and appropriate for the maintenance of said common
facilities or rights of way ..." The Second Amendment to
the Declaration states that its purpose is the
"maintenance, repair, and improvement of the roads
serving the Lots..." (which includes the Porter lot).
These provisions does not contemplate maintaining the rights
of way as may now or hereafter be laid out in the subdivision
except for the one leading to 18 Ridge Parkway. The Court
construes the provision as requiring the Association to
maintain all of the rights of way in the development and, in
return, all property owners must pay the annual fee. The
Court also finds that the Association's breach is
material and preceded the plaintiff's failure to pay an
annual fee. For the first four years after the Porters
purchased their lot the Association' nonprofit
corporation status was under suspension and it was unable