New Hampshire Housing Finance Authority v. Pinewood Estates Condominium Association

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-northern judicial district
No. 2015-0514

NEW HAMPSHIRE HOUSING FINANCE AUTHORITY

v.

PINEWOOD ESTATES CONDOMINIUM ASSOCIATION

Argued: May 5, 2016
Opinion Issued: September 20, 2016

Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the
brief and orally), for the petitioner.

Cronin, Bisson & Zalinsky, P.C., of Manchester (Mark E. Connelly,
Daniel D. Muller, Jr. and Ashley B. Scott on the brief, and Mr. Muller orally),
for the respondent.

Gallagher, Callahan & Gartrell, P.C., of Concord (W. John Funk and
Robert J. Dietel on the brief), for Cooperative Credit Union Association, Inc.;
Mortgage Bankers and Brokers Association of New Hampshire, Inc.; and New
Hampshire Bankers Association, as amici curiae.
 BASSETT, J. The petitioner, New Hampshire Housing Finance Authority
(NHHFA), appeals a decision of the Superior Court (Nicolosi, J.) granting
summary judgment in favor of the respondent, Pinewood Estates Condominium
Association (Pinewood), and awarding attorney’s fees to Pinewood. The trial
court ruled that, pursuant to Pinewood’s condominium declaration, NHHFA
was responsible for paying condominium assessments that were accrued by
the previous owner of a unit NHHFA purchased at a foreclosure sale, and that
Pinewood was not obligated to provide common services to the unit until all
assessments were paid. Because we conclude that the Condominium Act, RSA
chapter 356-B (2009 & Supp. 2015), operates to bar Pinewood’s claim for
unpaid pre-foreclosure condominium assessments, we reverse and remand.

The summary judgment record supports the following facts. In 2005,
Patricia Rugg purchased a unit in Pinewood’s condominium complex in
Manchester. Rugg granted a mortgage for the unit to a local bank, and the
bank subsequently assigned the mortgage to NHHFA. Rugg died in May 2011.
The assessments on Rugg’s condominium went unpaid after her death.

In June 2012, Pinewood sent a letter to Rugg informing her that she
owed $1,375 in past-due assessments and attorney’s fees. In August,
Pinewood notified Rugg’s estate and NHHFA, as the first mortgagee, that the
unit’s common services would be terminated in thirty days unless all the past-
due assessments were paid. See RSA 356-B:46, IX (2009). Neither NHHFA nor
Rugg’s estate paid the past-due assessments. Subsequently, Pinewood
terminated the unit’s common services, including water and sewer services.

Rugg’s mortgage payments also went unpaid after her death. In January
2013, NHHFA filed a Petition for Foreclosure Decree of Sale and to Quiet Title
in superior court. The court granted the petition, and, in August, NHHFA
purchased the unit at the foreclosure sale. Shortly thereafter, Pinewood
notified NHHFA that it owed $4,796.20, including $4,414.75 in assessments
accrued prior to the foreclosure, as well as post-foreclosure assessments.
NHHFA paid all of the post-foreclosure assessments, but refused to pay the
pre-foreclosure assessments.

NHHFA then filed a petition for declaratory judgment in the superior
court, arguing that: (1) it took title to the unit free and clear of encumbrances,
including Pinewood’s claim to the pre-foreclosure assessments; and (2)
Pinewood had no authority to terminate common services to the unit because
of unpaid assessments accrued prior to the foreclosure. The trial court granted
summary judgment in favor of Pinewood on both issues. Relying upon Section
2.3 of the condominium declaration, which provides that “any Owner acquiring
a Unit shall be liable . . . for any prior and outstanding assessments levied
against the Unit,” the trial court concluded that NHHFA was responsible for all
past-due assessments. The trial court also concluded that, although NHHFA
had paid all post-foreclosure assessments, under Section 6.1(c) of the

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condominium declaration, Pinewood could “terminate services until all
assessments are paid, which includes the unpaid pre-foreclosure
assessments.” Because Pinewood “successfully enforced the provisions of the
Declaration,” the trial court also awarded Pinewood its attorney’s fees and costs
pursuant to RSA 356-B:15, II (Supp. 2015). This appeal followed.

On appeal, NHHFA argues that the trial court erred when it concluded
that NHHFA is liable for the pre-foreclosure assessments. NHHFA contends
that, pursuant to the Condominium Act and the foreclosure statute,
Pinewood’s encumbrance on the unit arising out of unpaid pre-foreclosure
assessments was extinguished by the foreclosure. See RSA 356-B:46 (Supp.
2015); RSA ch. 479 (2013 & Supp. 2015). NHHFA further contends that,
because it paid all post-foreclosure assessments, Pinewood cannot lawfully
withhold common services from the unit. Pinewood counters that the trial
court correctly relied upon the provisions of the declaration to conclude that
Pinewood’s claim for the pre-foreclosure assessments was not affected by the
foreclosure sale. Pinewood also argues that, because assessments are levied
against units rather than against individual owners, Pinewood need not restore
common services until all assessments — both pre- and post-foreclosure — are
paid. Pinewood also filed a cross-appeal.

As a threshold matter, Pinewood argues that NHHFA lacks standing to
appeal the trial court’s decision regarding the termination of services. “In
evaluating whether a party has standing to sue, we focus on whether the party
suffered a legal injury against which the law was designed to protect.”
Libertarian Party of N.H. v. Sec’y of State, 158 N.H. 194, 195 (2008) (quotation
omitted). Here, NHHFA has suffered a cognizable legal injury: it cannot
maintain or use the unit it purchased in foreclosure because Pinewood has
terminated basic services to the unit — including water and sewer services —
and refuses to restore them until all past-due assessments are paid.
Accordingly, we conclude that NHHFA has standing.

We next address whether, pursuant to RSA 356-B:46, I(a) and RSA
479:26 (2013), NHHFA is obligated to pay condominium assessments that
accrued prior to the foreclosure. Resolving this issue requires us to engage in
statutory interpretation, and, therefore, our review is de novo. Prof. Fire
Fighters of N.H. v. N.H. Local Gov’t Ctr., 163 N.H. 613, 614 (2012). In matters
of statutory interpretation, we are the final arbiter of the intent of the
legislature as expressed in the words of the statute considered as a whole.
Olson v. Town of Grafton, 168 N.H. 563, 566 (2016). We first look to the
language of the statute itself, and, if possible, construe that language according
to its plain and ordinary meaning. Id. “We interpret legislative intent from the
statute as written and will not consider what the legislature might have said or
add language that the legislature did not see fit to include.” Sanborn v. 428
Lafayette, LLC, 168 N.H. 582, 585 (2016) (quotation omitted). “We interpret

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statutory provisions in the context of the overall statutory scheme and not in
isolation.” Id. (quotation omitted).

The Condominium Act “governs all condominiums and all condominium
projects.” Neumann v. Village of Winnipesaukee Timeshare Owners’ Assoc.,
147 N.H. 111, 112-13 (2001). It is the enabling statutory authority for the
condominium form of property ownership in New Hampshire. Cf. Bennett,
Condominium Homeownership in the United States: A Selected Annotated
Bibliography of Legal Sources, 103 Law Libr. J. 249, 263 (2011)
(“[C]ondominium ownership is based on statutory authority, not on common
law concepts.” (quotation omitted)). We recently reaffirmed the principle that
the terms of a condominium declaration must be interpreted to be consistent
with the Condominium Act, and, if the terms of a declaration conflict with the
Act, the Act controls. See Sanborn, 168 N.H. at 586 (explaining that
“[r]egardless of the provisions of the [condominium] bylaws . . . the bylaws
cannot negate the applicability” of a controlling statute); cf. 18 Am. Jur. 2d
Corporations § 16 (2004) (“Where a corporation’s articles of incorporation or
bylaws conflict with a statute under which the corporation was established, the
statute controls.”).

The Act enumerates the powers of condominium associations, which
include the ability to impose and collect assessments from each unit. See RSA
356-B:45 (2009). Condominium associations rely upon these assessments to
pay for the operation, maintenance, repair, renovation, and replacement of
elements of the common areas of the condominium. See Boyack & Foster,
Muddying the Waterfall: How Ambiguous Liability Statutes Distort Creditor
Priority in Condominium Foreclosures, 67 Ark. L. Rev. 225, 240 (2014)
(observing that without assessments, association will “decrease services,
and/or allow the community’s appearance and quality of living to decline”).
The Act empowers associations to collect unpaid assessments, and establishes
the priority of an association’s claim for unpaid assessments. The Act also
authorizes a condominium association to terminate common services to a unit
if assessments go unpaid. RSA 356-B:46, IX provides:

Notwithstanding any law, rule, or provision of the
condominium declaration, bylaws, or rules to the contrary, the
unit owners’ association may authorize, pursuant to RSA 356-B,
its board of directors to, after 30 days’ prior written notice to the
unit owner and unit owner’s first mortgagee of nonpayment of
common assessments, terminate the delinquent unit’s common
privileges and cease supplying a delinquent unit with any and all
services normally supplied or paid for by the unit owners’
association. Any terminated services and privileges shall be
restored upon payment of all assessments.

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 The Act provides that a lien for condominium assessments is generally
junior to a first mortgage:

The unit owners’ association shall have a lien on every
condominium unit for unpaid assessments levied against that
condominium unit in accordance with the provisions of this
chapter and all lawful provisions of the condominium instruments,
if perfected as hereinafter provided. The said lien, once perfected,
shall be prior to all other liens and encumbrances except (1) real
estate tax liens on that condominium unit, (2) liens and
encumbrances recorded prior to the recordation of the declaration,
and (3) sums unpaid on any first mortgages or first deeds of trust
encumbering that condominium unit and securing institutional
lenders.

RSA 356-B:46, I(a) (emphases added). A condominium association may,
however, gain limited priority over a first mortgage for six months of unpaid
assessments if the association follows the procedure provided in RSA 356-B:46,
I(c). If that procedure is not followed, the association’s lien for assessments will
be junior to the first mortgage. See RSA 356-B:46, I(a). This provision
encourages associations to promptly act upon unpaid assessments and
protects first mortgagees by ensuring that no more than six months of unpaid
assessments can receive priority. See Boyack, supra at 283 (observing that
“modern statutes typically balance lender and association interests” by
“creat[ing] a limited and capped super-priority-association lien for a certain
amount of months’ worth of unpaid assessments”). The Act limits associations
to “one priority lien.” See RSA 356-B:46, I(d). We note that Pinewood did not
follow the procedure in RSA 356-B:46, I(c) to secure such a priority lien.

New Hampshire law provides for two types of foreclosure proceedings
pursuant to “a power of sale.” RSA 479:22-:25 (2013 & Supp. 2015). One
allows mortgagees to foreclose without judicial oversight provided that the
mortgagee complies with the statute. RSA 479:25 (Supp. 2015). The other
involves petitioning the court for a judgment of foreclosure. See RSA 479:22-
:24 (2013). Under both methods, upon recording of the deed and affidavit, title
to the foreclosed premises “shall pass to the purchaser free and clear of all
interests and encumbrances which do not have priority over such mortgage.”
RSA 479:26, III (2013); see Restatement (Third) of Property (Mortgages) § 7.1
cmt. a at 448-49 (1997) (explaining that both “a valid judicial foreclosure” and
a “power of sale (nonjudicial) foreclosure” result in the extinguishing of junior
interests). This is “a fundamental principle of mortgage law.” Restatement
(Third) of Property (Mortgages) supra at 448; see Boyack, supra at 286
(observing that “[s]urvivability of a junior lien is unheard of in foreclosure”).

NHHFA argues that Pinewood’s claim to the debt arising from unpaid
pre-foreclosure assessments does not have priority over NHHFA’s mortgage

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interest, and, therefore, that NHHFA owns the unit “free and clear of all
interests and encumbrances of the association.” (Quotation omitted.)
Pinewood counters that the priority rules in RSA 356-B:46, I(a) are not
applicable here because this case involves a “Termination Resolution” under
RSA 356-B:46, IX, not a statutory lien for unpaid assessments. Pinewood
asserts that because the termination of services is “a distinct legal right under
the Condominium Act and Declaration,” it “is not an encumbrance or interest
in land subject to the priority determinations” of RSA 356-B:46, I. We agree
with NHHFA.

Pinewood’s argument contradicts the plain language of the Condominium
Act, and fails to give effect to the specific priority provisions set forth in RSA
356-B:46, I(a). Although Pinewood is correct that the dispute in this case
stems from Pinewood’s termination of common services because of unpaid
assessments, rather than from a statutory lien for assessments, Pinewood
ignores the effect of the termination of services resolution on NHHFA’s
ownership of the unit. RSA 356-B:46, I(a) explicitly provides that, under
circumstances such as those here, a lien for assessments is junior to the first
mortgage, and, RSA 479:26, III provides that a junior lien is extinguished by
foreclosure. If a termination of services resolution were not subject to these
priority rules, an association could maintain an encumbrance on the unit after
foreclosure that — although not a statutory lien — would operate as a lien on
the unit. See Black’s Law Dictionary 1063 (10th ed. 2014) (defining “lien” as
“[a] legal right or interest that a creditor has in another’s property, lasting
usu[ally] until a debt or duty that it secures is satisfied”). Pinewood appears to
argue that, by terminating common services pursuant to RSA 356-B:46, IX
rather than filing a lien for unpaid assessments, it can, in effect, create a
superior lien of an indeterminate amount lasting for an indefinite time. This
result is plainly not allowed by RSA 356-B:46.

Pinewood’s construction directly contravenes the Act’s explicit limitations
on an association’s claim for unpaid assessments. An association is limited to
one priority lien for no more than six months of unpaid assessments. See RSA
356-B:46, I(c)-(d). Had the legislature intended to allow a termination of
services resolution to act as a priority lien, it would have included language in
the statute to that effect. See Sanborn, 168 N.H. at 585 (“We . . . will not
consider what the legislature might have said or add language that the
legislature did not see fit to include.” (quotation omitted)). Additionally, the
priority rules set forth in RSA 356-B:46, I(a) to I(d) of the Act would be
meaningless if a condominium association could side-step the procedural
requirements for obtaining priority over a first mortgage holder merely by
terminating services under RSA 356-B:46, IX based upon unpaid assessments.
Thus, we conclude that Pinewood’s interest — whether a lien in name or in
operation — is subject to the priority rules in RSA 356-B:46, I(a). Accordingly,
because RSA 356-B:46, I(a) establishes that Pinewood’s claim for the pre-
foreclosure assessments is junior to NHHFA’s mortgage, and, therefore, is

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extinguished by the foreclosure, see RSA 479:26, III, we conclude that NHHFA
takes title to the unit free and clear of Pinewood’s claim for the pre-foreclosure
assessments.

We next address whether, despite NHHFA’s “free and clear” ownership of
the unit, see RSA 479:26, III, Pinewood can refuse to restore services until the
pre-foreclosure assessment debt is paid. RSA 356-B:46, IX provides that if an
association terminates common services because a unit owner fails to pay
condominium assessments, “[a]ny terminated services and privileges shall be
restored upon payment of all assessments.” NHHFA argues that, because the
foreclosure extinguished Pinewood’s claim against the unit for unpaid pre-
foreclosure assessments, the phrase “all assessments,” under these
circumstances, refers to only post-foreclosure assessments. Thus, NHHFA
asserts that, because it has paid all post-foreclosure assessments, Pinewood
must restore common services immediately. Pinewood counters that it need
not restore services to the unit until all past-due assessments, including those
accrued pre-foreclosure, have been paid. We agree with NHHFA.

We note that, although the foreclosure extinguished Pinewood’s claim
against the post-foreclosure owner — NHHFA — for the pre-foreclosure
assessments, Rugg’s underlying debt to Pinewood survives. See Cadle Co. v.
Dejadon, 153 N.H. 376, 379 (2006) (foreclosure extinguishes lien on property,
but underlying debt obligation survives). As NHHFA correctly observes, the
fact “[t]hat Ms. Rugg (or her estate) still owes Pinewood money . . . does not
make [NH]HFA chargeable. . . . Merely knowing of the outstanding assessment
does not create a duty to pay.” An association can gain priority over a first
mortgage holder only by following the procedure set forth in RSA 356-B:46, I(c).
Even when this procedure is followed, the Act limits an association to one six-
month priority lien. See RSA 356-B:46, I(c)-(d). If an association could
withhold services from the unit post-foreclosure in order to force the post-
foreclosure owner to ensure that the debt of the previous owner is paid, an
association would have an ongoing encumbrance on the unit that exceeds that
authorized by the Act. We therefore conclude that, because NHHFA, as the
post-foreclosure owner, is not responsible for Rugg’s debt, Pinewood cannot
continue to withhold services from the unit based upon the pre-foreclosure
debt.

Pinewood, nonetheless, argues that, pursuant to its declaration and the
Condominium Act, “the debt for unpaid assessments is . . . one inuring to the
condominium unit, not the unit owner,” and, therefore, all past-due
assessments must be paid in order to restore common privileges and services
to the unit. We disagree. When the Declaration and the Condominium Act
conflict, the Act controls. See Sanborn, 168 N.H. at 586-87. We have
concluded that the Act does not allow an association to have an ongoing
encumbrance on a unit after foreclosure. NHHFA cannot have a greater
obligation to pay past-due condominium assessments under Pinewood’s

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declaration than is otherwise allowed by the Act. Accordingly, we conclude
that the trial court erred when it ruled that Pinewood could withhold common
services until NHHFA pays the previous owner’s debt.

Our holding today advances the policies underlying the Condominium
Act. To rule otherwise would create uncertainty for lenders that provide
mortgage financing to condominium owners. The ability of a condominium
owner to readily secure mortgage financing is crucial to the viability of the
condominium form of ownership. See Bennett, supra at 262-63 (explaining
how improving access to mortgages for condominiums “allow[s] those who [can]
not afford a single-family dwelling to realize the American dream of
homeownership”). Lenders make loans based upon their calculations of risk
and return, and “[p]aramount in that calculation is the priority position of their
lien.” Boyack, supra at 291. Moreover, because mortgage lenders often sell the
mortgages they originate, giving the claims of condominium associations for
unpaid assessments priority over first mortgage holders would negatively
impact the secondary mortgage market. Id. at 292-93. The Condominium Act
reflects a careful balancing by the legislature of the interests of condominium
associations and lenders to ensure that lenders will make secured loans to
condominium purchasers. See id. at 243 (observing that “[a] state’s lien-
priority legislation typically reflects its approach to balancing [the] policies” of
“allocating costs equitably for jointly used property” and “encouraging home-
mortgage finance”).

Pinewood’s remaining arguments are either not sufficiently developed for
our review, see State v. Blackmer, 149 N.H. 47, 49 (2003), or respond to
arguments made by NHHFA that we need not address, see State v. Kardonsky,
169 N.H. ___, ___ (decided June 14, 2016). Finally, because the trial court
awarded attorney’s fees and costs pursuant to RSA 356-B:15, II, which allows
for such an award only to a prevailing party, we reverse the award. See RSA
356-B:15, II.

Reversed and remanded.

DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.

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