East Industrial Park Condominium Association v. Charles Blais

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0777, East Industrial Park Condominium
Association v. Charles Blais, the court on September 21, 2015,
issued the following order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We reverse and remand.

The plaintiff, East Industrial Park Condominium Association
(association), appeals an order of the Circuit Court (Coughlin, J.), following
trial, dismissing its action against the defendant, Charles Blais, in which it
sought to recover unpaid assessments, penalties, interest, costs, and attorney’s
fees for a nonresidential condominium. See RSA 356-B:15 (2009), :46 (Supp.
2014). The trial court found that the association sent Blais, by first class mail,
coupon books containing preprinted monthly assessments, that Blais received
the books, and that he admitted “that he owe[d] those monthly assessments
and late fees.” The trial court further found that the association “sends out . . .
assessments for legal fees and interest . . . as well as for late monthly
condominium assessments” by first class mail. It ruled, however, that a notice
provision in the association’s bylaws required that it send all such assessments
by registered or certified mail, and that its failure to comply with the provision
precluded it from any relief. On appeal, the association argues, in part, that
the provision does not limit Blais’s obligations in this case. We agree.

A condominium association’s governing legal documents, such as its
bylaws, form a contract between the association and owners of condominium
units within the association. See Barclay Square Condo. Owners’ Assoc. v.
Grenier, 153 N.H. 514, 517 (2006). As with any contract, we review the trial
court’s interpretation of condominium bylaws de novo, see id., reading the
document as a whole, and deciphering the parties’ intent, absent ambiguity,
from the plain meaning of the language used, see Duke/Fluor Daniel v.
Hawkeye Funding, 150 N.H. 581, 582-83 (2004).

In this case, the relevant notice provision states: “All notices mailed
pursuant to the provisions of . . . these Bylaws . . . when . . . directed to any
Owner shall be sent by registered or certified mail to the last known address of
such Owner . . . or to such other address as the Owner may designate . . . .” In
dismissing the case due to the association’s failure to abide by this provision,
the trial court implicitly determined that the provision creates a condition
precedent to Blais’s obligation to pay assessments, penalties, interest, costs,
and attorney’s fees. See Renovest Co. v. Hodges Development Corp., 135 N.H.
72, 78-79 (1991). We disfavor conditions precedent, and infer that parties
intended to create a condition precedent only when the plain language of the
agreement requires such a construction. See Holden Eng’g and Surveying v.
Pembroke Rd. Realty Trust, 137 N.H. 393, 396 (1993).

By its plain language, the notice provision simply requires that, if a
“notice” is to be “mailed pursuant to the provisions of . . . these Bylaws,” it will
be mailed by certified or registered mail. (Emphasis added.) The bylaws
contain several provisions expressly requiring written “notice” to owners, and
allowing or requiring the association to deliver such notices by mail. With
respect to the charges at issue in this case, however, the bylaws contain no
language denoting any intent to condition the owner’s obligation upon the
delivery of “notice” by mail. See id. Indeed, Blais concedes that, even without
notice by certified or registered mail, he is liable for unpaid assessments, and
for penalties and interest imposed on such assessments, because the bylaws
provide explicit notice of his obligations relative to such charges. He argues,
however, that because “the calculation and imposition of attorney’s fees is not
explicit” under the bylaws, he had no obligation to pay attorney’s fees, or any
interest or fines based upon the nonpayment of attorney’s fees, unless he
received notice of such charges by registered or certified mail. We disagree.

With respect to the nonpayment of assessments, the bylaws provide:

Each monthly assessment of Common Expenses, and each
special assessment, shall be a separate, distinct, and personal debt
and obligation of the Owner against whom it has been assessed,
and shall be collectible as such. . . . The amount of any monthly
assessment or special assessment against any Owner which is not
paid on its monthly or other due date, plus interest at the rate of
twelve percent (12%) per annum, as well as costs of collection
including reasonable attorney’s fees, shall constitute a lien upon
such Owner’s Unit, pursuant to RSA 356-B:46 . . . and the Owner
shall be liable for the payment of interest on each monthly
assessment or special assessment from the date of any default,
and shall be liable for any costs of collection in addition to such
assessment, provided however that such interest and costs of
collection may be waived by the Board, in any specific instance and
in its sole discretion . . . . In any . . . lawsuit brought in
connection with the enforcement of such lien, the Owner of the
Unit shall be required to pay the costs and expenses of any such
proceedings, as well as reasonable attorney’s fees.

(Emphasis added.) By its plain language, this provision creates a lien in the
amount of any unpaid assessment or special assessment, interest on the
unpaid assessment or special assessment, and the “costs of collection

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including reasonable attorney’s fees” incurred as a result of the unpaid
assessment or special assessment. Separately, it creates liability in the owner
for “the costs and expenses . . . as well as reasonable attorney’s fees” incurred
by the association in bringing suit to enforce its lien. Nothing in this language
conditions the liability of the owner upon the mailing of any notice.

This analysis is not inconsistent with Heaton v. Boulders Properties, Inc.,
132 N.H. 330 (1989). In Heaton, the defendant seller entered into a real estate
listing agreement with a realtor in which the seller reserved the right to
terminate the agreement, but agreed to pay a commission “if a sale . . . of [the]
property [was] made within SIX (6) months after the termination . . . to persons
with whom [the realtor had] negotiated during [the agreement’s] term . . . and
whose names the [realtor had] . . . submitted in writing by certified mail to [the
seller] within TEN DAYS after [the agreement’s] termination.” Heaton, 132 N.H.
at 332 (emphasis added). Unlike the agreement in this case, the plain
language of the termination provision in Heaton expressly conditioned the
seller’s obligation to pay a post-termination commission upon the realtor’s
timely provision of notice by certified mail. See id. at 334-35 (holding that
under the contract’s express language, notice by certified mail governed the
obligation to pay a commission).

Because the trial court erroneously determined that the bylaws
conditioned Blais’s liability upon the association’s delivery of assessments by
registered or certified mail, we reverse and remand for further proceedings
consistent with this order. We express no opinion as to whether any specific
charge that the association seeks to recover is in fact recoverable under RSA
356-B:46, the terms of the bylaws, or the facts of the case.

Reversed and remanded.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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