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Brady v. Taralaine Estates Homeowners Association

Superior Court of Maine, Cumberland

June 28, 2018

ROBERT D. BRADY, JR. et al. Plaintiffs

          Plaintiffs' Counsel: Erika Frank, Esq. Law Office of Erika L Frank.

          Defendants' Counsel: Dawn Dyer, Esq. Law Office of Dawn D Dyer.


          A. M. Horton, Justice

         This civil case came before the court for trial April 24, 2018, with all parties and counsel present. The trial was electronically recorded.

         After the trial, counsel submitted proposed findings of fact and conclusions of law. On the understanding that the parties had completed their post-hearing filings, the court issued its Decision and Judgment dated May 21, 2018.

         In issuing the Decision and Judgment, the court may have overlooked that the parties had until May 22, 2018 to file replies to each other's proposed findings.[1] Defendants filed their reply May 22, 2018. On receiving the court's Decision and Judgment, Defendants filed a Motion for Reconsideration. The court has granted the Motion and reconsidered its rulings in the form of this Amended Decision and Judgment.

         Based on the entire record, the court makes findings of fact, adopts conclusions of law, and renders judgment as follows:

         1. In 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).

         2. The 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, 1997).

         3. The 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.

         4. The 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.

         5. 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.

         6. The 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 2-3. 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.

         7. 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 thereupon cease."

          8. 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.

         9. The 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.

         10. In 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 located.

         11. Ten years elapsed after the Taralaine Estates subdivision was approved, without Taralaine Developers having sold any of the 10 subdivision lots.

         12. In 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.

         13. On 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.

         14. The 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 deed.

         15. 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.

         16. In 2001, the Robb Peck McCooey corporation merged with another entity into an entity named Remco, LLC. See Defs. Ex. 13.

         17. In 2005, Remco LLC sold Lot 9 to Plaintiffs Robert D. Brady, Jr. and Jennifer M. Brady. See Defs. Ex. 15.

         18. In 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.

         19. 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 Pis. Ex. 3. They viewed Remco as doing a good job overall.

         20. The 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.

         21. 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, section 6.

         22. 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 ...

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