Rowayton Wood Condominium Association, Inc. v. Everett

ROWAYTON WOOD CONDOMINIUM ASSOCIATION, INC. v. Thomas R. EVERETT

No. FSTCV176032017S

Superior Court of Connecticut, Judicial District of Stamford-Norwalk, Stamford

January 23, 2019

UNPUBLISHED OPINION

POVODATOR, JTR.

Nature of the Proceeding

Defendants Everett and Clancy^[1] are the title owners of a condominium unit (Unit # 15) at the Rowayton Woods Condominium development, and by virtue of their ownership are members of the plaintiff Association. The plaintiff is seeking to foreclose on its lien(s) against the unit, based on the claimed failure of the defendants to pay common charges as well as fines and assessments levied against their unit. The court heard evidence on August 28-30, 2018, and the parties submitted post-hearing briefs on October 1, 2018.

Before addressing the specific facts of this case, and the findings and conclusions drawn by the court on that basis, some general observations as to the tensions or compromises arising from condominium ownership would seem to be appropriate. On the positive side, condominium ownership allows a person or couple to own their living quarters, with the potential benefit of capital appreciation, with the ability to enjoy amenities that might not be available (affordable) in a single-family home context, and without the need to be charged with responsibility for all maintenance and upkeep. On the negative side, there is a surrender of autonomy to the will-and sometimes the whims-of the majority (and sometimes a particularly active minority or individual) with the capital investment making it more difficult to simply "walk away" from an unsatisfactory situation. There also is a need to deal with two levels of management-the professional managers who deal with day-to-day operations, and the Board of Directors of the Association composed of unit-owners (effectively, volunteers as opposed to professionals with respect to management), responsible for policy, decision-making and other longer-term functions.

In this case, the defendants claim that a number of the negative factors came into play. Although they do not dispute that at least at times, they had fallen behind in payments of common charges, they claim that there were certain arbitrary decisions made by the Board with respect to imposition of fines. They also claim that a member of the Board was a particular source of complaints about the defendants resulting in a form of unequal if not vindictive imposition of fines/penalties. The defendants also contend that there was inadequate attention to their attempts to deal with the problems they were encountering.

As a final preliminary matter, the defendants are self-represented, and the court is cognizant of the need to balance the rights of the defendants to present a defense in a manner that may not comport with the technical rules of trial against the right of the plaintiff not to be prejudiced by undue leniency.

Connecticut courts are solicitous of self-represented parties when it does not interfere with the rights of other parties. Our courts allow self-represented parties some latitude, but that latitude is constrained by our rules of practice; the purpose of which is to provide a just determination of every proceeding. Argentinis v. Fortuna, 134 Conn.App. 538, 539 (2012) (citations and internal quotation marks, omitted).

[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party ... The courts adhere to this rule to ensure that pro se litigants receive a full and fair opportunity to be heard, regardless of their lack of legal education and experience ... This rule of construction has limits, however. Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law ... In addition, while courts should not construe pleadings narrowly and technically, courts also cannot contort pleadings in such a way so as to strain the bounds of rational comprehension. (Internal quotation marks and citations, omitted.) Ajadi v. Commissioner of Correction, 280 Conn. 514, 549, 911 A.2d 712, 735 (2006).

Facts

The Rowayton Woods Condominiums are located in Norwalk. The plaintiff is the Association formed for management of the development, pursuant to the Common Interest Ownership Act. The unit owned by the plaintiffs, unit # 15 (see, Ex. 2), has a designated address of 15 Rowayton Woods Drive. The controlling documents/instruments are the Association’s certificate of incorporation, its Declaration, its By-laws and its rules.^[2] Again, by virtue of their ownership of their unit, the defendants are members of the Association and subject to the provisions of the controlling documents identified above, as well as any rules or resolutions duly promulgated under authority of those documents.

Starting in late 2014, the defendants failed to pay common charges.^[3] There is an overlay of uncertainty as to the circumstances of missed payments beyond some unspecified point due to a policy of not accepting partial payments once an account is referred to counsel for collection, a point that will be discussed extensively below. A related overlay that appears to be largely responsible for the situation deteriorating to the point of foreclosure, is that the defendants also had a number of fines imposed against them for failure to perform certain inspections and for alleged violations of certain Association rules, and they did not believe they should be obligated to pay the fines.

The first rule violation of relevance to this proceeding appears to have been a 2015 instance in which the defendants had failed to have a suitable professional undertake an inspection of the chimney servicing the fireplace in their unit. This was characterized as a safety inspection program which was mandatory for all unit owners with a fireplace, and apparently undertaken every other year (odd years).^[4] In 2015, the defendants failed to provide suitable documentation that an inspection had been undertaken, ultimately leading to a fine when the defendants did not undertake the inspection after being warned that they were required to do so. (See, Exhibits 9 and 10.) The defendants’ explanation was that they had not used the fireplace in years, since approximately 2013 or before. The court recognizes that from the perspective of the defendants, their justification for not incurring the expense for an inspection under those circumstances made sense. The problem, however, is that the issue is not whether-accepting the accuracy of their representation-their position made sense, but rather whether on an institutional level, whether for insurance purposes or for safety considerations (minimizing the risk of chimney fires) or both, a consistent and objective approach was required to be taken, one that would avoid any claims of unequal treatment or favoritism. (Regardless of the wisdom of the requirement, this is not the proper time or forum for deciding the issue.) The defendants were given an opportunity to correct the situation, but declined to do so. This scenario was largely repeated again in 2017.

Perhaps more troubling is that the 2015 instance does not appear to have been the first such occurrence. Through questioning relating to the attempt to get into evidence Exhibits B for ID and C for ID, the defendants alluded to efforts in 2013 to pay common charges but not the then-pending $ 250 fine for the failure to have a required 2013 chimney inspection. (See, also, transaction history attached to Ex. 1, reflecting imposition of that fine, subsequently reduced to $ 125.) The answer, thereby incorporating the facts in the question, was that the Association policy was not to accept anything other than full payment. Since there was testimony that the defendants had had a "$ 0" balance as of October 2014, the defendants must have, in some fashion, paid the then-outstanding fine and common charges (confirmed by transaction history, mentioned above). The court must note that this undercuts the defendants’ challenge as to when the mandatory chimney inspection program went into effect, and especially whether it was a new requirement in 2013. Even if it had been new in 2013-and there was testimony from Mr. Wechter, the chief witness on behalf of the plaintiff (the management company’s designated supervisor for Rowayton Woods) that it had been formally adopted as a rule with required compliance in 2011-the defendants clearly knew of the requirement when the next biennial inspection was required in 2015, and inferentially knew that non-use was not acceptable as a justification for failure to inspect.

With respect to the chimney inspections, the defendants at least had provided a substantive (and seemingly timely) objection addressing the merits of the claimed violation (i.e., it was not needed). The other fines, however, related to various rules that the defendants were claimed to have violated, and with respect to rule violations, the defendants did not address the merits of any violation in a timely manner that might have permitted some relief. On approximately two occasions, the defendants attempted to inquire of management as to the precise rules they were alleged to have violated, ^[5] but the evidence provided by the plaintiff-and not challenged by the defendants either directly or by way of testimony to the contrary-reflect a consistent pattern of no substantive response to charges of rules violations. The plaintiff’s records reflect that the defendants consistently failed to appear at meetings where they were given an opportunity to...