181 Conn. App. 492
Conn. App. Ct.2018Background
- A New London subdivision created in 1954 grants each lot an undivided 1/48 interest in Billard Beach via a beach (quitclaim) deed containing restrictive covenants and a modification procedure in §4.
- §2 sets substantive beach-use restrictions; §4 provides that the restrictions in §2 "may be modified by a majority vote in writing of the owners" and that the "majority shall be determined according to the sum of the votes so counted."
- In 2011 proponents circulated and recorded a 2011 modification (later conceded void) that attempted broad changes including raising the supermajority threshold and adding enforcement/fee provisions; no formal noticed vote occurred.
- Plaintiffs (Jepsen and another) sued to void the 2011 filing; parties negotiated and produced a 2014 modification, sent notice to 41 of 48 owners, held an Oct. 10, 2014 meeting, collected proxies and later collected additional signatures, and recorded the 2014 instrument on Dec. 23, 2014.
- Trial court held the 2011 modification void, upheld the 2014 modification as valid (finding a majority supported it and plaintiffs waived notice objections), and entered judgment for defendants on slander-of-title and denied plaintiffs’ fee request.
- On appeal the court (Appellate Court) affirmed the 2011 invalidity but reversed as to the 2014 modification: it invalidated portions of the 2014 instrument that amended matters beyond §2 and held the §4 voting process was not followed (insufficient written votes and defective notice); it affirmed judgment for defendants on slander of title and denial of attorney’s fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §4 allows nonunanimous modification of beach-use covenants | Jepsen: Only unanimous consent can change deed terms beyond §2 | Defendants: §4 majority mechanism permits modification | Held: §4 permits majority modification of §2 use restrictions, but any change outside §2 (e.g., altering amendment procedure) requires unanimous consent |
| Whether the 2014 process complied with §4 (notice and formal written majority vote) | Jepsen: Notice to all owners required; vote must be a formal written vote whose counted votes show a majority | Defendants: No separate notice or meeting requirement; signatures on recorded instrument suffice as written votes | Held: §4 requires notice and a formal written vote; signatures alone are insufficient; plaintiffs did not waive notice objection; 24 written proxy yes-votes < majority, so 2014 invalid |
| Whether recording the 2011/2014 instruments constituted slander of title | Jepsen: filings were false and malicious, causing pecuniary loss | Defendants: Filings were statements of signatories’ intent, undertaken in good faith to clarify beach use | Held: No slander of title — filings not demonstrably false, no malice, no proven pecuniary damages |
| Whether trial court abused discretion denying attorney’s fees for defendants’ special defenses | Jepsen: Special defenses were frivolous and forced fees; request for double costs and fees warranted | Defendants: Special defenses were legitimate defenses; denial appropriate | Held: No abuse of discretion in denying fees; trial court reasonably declined award |
Key Cases Cited
- Grovenburg v. Rustle Meadow Associates, LLC, 165 A.3d 193 (Conn. App. 2017) (restrictive covenants are servitudes that run with the land)
- Wykeham Rise, LLC v. Federer, 52 A.3d 702 (Conn. 2012) (requirements for covenants to run with the land and bind successors)
- Mannweiler v. LaFlamme, 700 A.2d 57 (Conn. App. 1997) (absent amendment procedure, modification of covenants requires unanimous consent)
- Harris v. Pease, 66 A.2d 590 (Conn. 1949) (restrictive covenants constitute property rights purchased by lot owners)
- Elm Street Builders, Inc. v. Enterprise Park Condominium Assn., Inc., 778 A.2d 237 (Conn. App. 2001) (elements of slander of title claim involve false publication, malice, and pecuniary damages)