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Anton v. Houze

Superior Court of Rhode Island, Newport

October 3, 2019

CHARLES A. ANTON and TAMI D. ANTON, as Trustees of the Victoria Avenue Realty Trust, Plaintiffs,
v.
PHILIPPE L. HOUZE and MARIE HOUZE, Defendants.

          For Defendant: Rachelle R. Green, Esq.; R. Daniel Prentiss, Esq.

          For Plaintiffs: Evan S. Leviss, Esq. for Defendants

          DECISION

          VAN COUYGHEN, J.

         This matter is before this Court for decision following a non-jury trial on a complaint by Charles A. Anton and Tami D. Anton (the Plaintiffs or Antons) against Philippe L. Houze and Marie Houze (the Defendants or Houzes). Jurisdiction is pursuant to G.L. 1956 §§ 8-2-13, 8-2-14, 9-30-1, and Rule 65 of the Rhode Island Superior Court Rules of Civil Procedure.

         I

         Facts

         This case involves a dispute between the Unit Owners of the D & J Condominium (the Condominium) concerning the Condominium's governance scheme and the approval required before altering the Condominium's Units and Common Elements. The Condominium is located at 9 Victoria Avenue, Newport, Rhode Island and is comprised of two units: Unit 9 and Unit 9A. The organization and operation of the Condominium is governed by the Rhode Island Condominium Act, G.L. 1956 §§ 34-36.1-1 et seq. (the Act), as well as the Condominium's Declaration, By-Laws, and Rules and Regulations. (collectively, the Condominium Documents). The Condominium is a Rhode Island unincorporated association organized under the Act and established by the original property owners, Dr. Richard D. Stengel and JoAnn R. Stengel (the Stengels), in 1990. The Stengels converted their property into a Condominium in order for Dr. Stengel's father, Charles Stengel, to live in Unit 9A. In May 1997, Charles Stengel transferred ownership of Unit 9A to the Stengels. (Defs.' Ex. O.)

         The Antons purchased Unit 9A from the Stengels and have used it as a secondary residence since 2006. The title to Unit 9A is held by their trust, the Victoria Avenue Trust. Trial Tr. (Tr.) 16:11-16, Oct. 2, 2018; Pls.' Exs. 8 & 12. The Houzes purchased Unit 9 from the Stengels on May 24, 2017. (Pls.' Ex. 21.) Disputes regarding the management and renovation of the Condominium have resulted in this litigation.

         Plaintiffs' first witness was Mr. Charles Anton. Mr. Anton testified that he and his wife first leased Unit 9A from the Stengels during the summer of 2005. Tr. 6:23-7:2, Oct. 2, 2018. During that summer, Mr. Anton testified that both he and his wife became interested in purchasing Unit 9A from the Stengels. Id. at 7:3-7. In early 2006, the Antons broached purchasing Unit 9A with the Stengels. Id. at 7:3-14. Although the Stengels previously had no intention to sell Unit 9A, they took their long-standing relationship with the Antons into consideration and ultimately agreed to sell. Id. at 7:3-21. Dr. Stengel then explained to the Antons how the Condominium operated, providing copies of the Condominium Documents for their review. Id. at 7:22-8:5; Pls.' Ex. 1.

         The Condominium Documents were originally drafted to give Dr. Stengel, the Owner of Unit 9, control over the Condominium Association. Dr. Stengel, as the Owner of Unit 9, possessed 67% of the Allocated Interest while the owner of Unit 9A held the remaining 33% of the Allocated Interest.[1] Originally, the Allocated Interest applied to various voting rights of the Unit Owners as well as the apportionment of common expenses related to the management of the Condominium. Prior to purchase the Antons sought, through counsel, to amend the Condominium's Declaration to modify their rights as the Owners of Unit 9A.[2] Tr. 9:19-25, Oct. 2, 2018. Mr. Anton testified that their overarching goal in amending the Declaration was to establish that the Condominium was equally governed by both Units, providing each Unit an equal say in managing the Condominium's affairs. Tr. 10:22-11:4, Oct. 2, 2018. This was so neither Owner could unilaterally make changes to the Condominium without the other Owner's approval-irrespective of their Unit's Allocated Interest. Tr. 10:22-11:4, Oct. 2, 2018. Mr. Anton understood and intended that the First Amendment to the Declaration accomplished this principally through two changes. First, that the Board of Directors consisted of two members, one from Unit 9 and one from Unit 9A. Id. at 11:5-10. Second, to be "crystal clear," that the approval from one hundred (100%) percent of the Unit Owners would be required before making changes to the Condominium, including the Common Elements. Tr. 11:10-13, Oct. 2, 2018. The Antons instructed their lawyers to draft the corresponding amendment to the Condominium Declaration. Tr. 11:14-18; Pls.' Exs. 30, 32, 33). Mr. Anton testified that the Stengels had no objection to the substance of the proposed amendment.

         On March 24, 2006, prior to the conveyance of Unit 9A to the Antons, the Stengels executed and recorded the First Amendment to the Declaration. (Pls.' Ex. 2.) In fact, the Antons' Purchase and Sale Agreement for Unit 9A was contingent upon the execution of the First Amendment. (Pls.' Exs. 30 & 32.) The Antons purchased Unit 9A on March 28, 2006. (Pls.' Ex. 8). On August 31, 2015, for estate reasons, the Antons transferred title to Unit 9A to the Victoria Avenue Trust and took title in their capacity as trustees Tr. 16:11-16; Pls.' Ex. 12.[3]

         The First Amendment to the Declaration amended, amongst other things, the definition of "Board of Directors" in § 1.5 of the Declaration.[4] As originally drafted, § 1.5 of the Declaration defined the term "Board of Directors" as follows:

Board of Directors' means those persons elected from time to time as members of the Executive Board of the Association pursuant to the By-Laws and as defined in the Act, and their successors in office. (Pls.' Ex. 1, § 1.5 of the Declaration.)

         Section 1.5 of the Amended Declaration's definition now states:

1.5 'Board of Directors' means those persons who are the owners of Units 9 and 9A and who shall also be the Executive Board of the Association. Notwithstanding any other provision in this Declaration, Rules and Regulations and the By-Laws to the contrary (including without limitation Section 3.2 of the By-Laws), the Board of Directors and Executive Board of the Association shall at all times be comprised of those persons who are the owners of Units 9 and 9A. (Pls.' Ex. 2, § 1.5 of the Amended Declaration.)

         The First Amendment also changed the percentage of Unit Owner approval required-from 67% Unit Owner approval to 100% Unit Owner approval-in order to make various changes to the Condominium or to the Condominium Documents. Section 8.1(i) of the Declaration originally stated:

8.1(i) In addition to all other requirements of this Declaration or the By-Laws, the prior written consent of First Mortgagees holding mortgages on Units entitled to at least fifty-one (51%) percent of the Common Areas and Facilities, and Unit Owners entitled to at least sixty-seven (67%) percent of the Common Areas and Facilities of the Condominium shall be required for the following: . . . (Pls.' Ex. 1.)

         The First Amendment amended § 8.1(i) of the Declaration and added an additional clause, which now states:

8.1(i) In addition to all other requirements of this Declaration or the By-Laws, the prior written consent of . . . Unit Owners entitled to one hundred (100% percent) of the Common Areas and Facilities[5] of the Condominium shall be required for the following:
(v) any increase in the Annual Assessment by more than ten (10%) present in any one calendar year period or any additions, alterations, or improvements to the Common Elements costing in excess of One Thousand ($1, 000.00) Dollars. (Pls.' Ex. 2) (emphasis added).[6]

         Mr. Anton testified these changes were to protect their investment in Unit 9A, preventing the Owner of Unit 9 from making unilateral changes to the Common Elements of the Condominium without their consent. Tr. 14:18-15:3, Oct. 2, 2018.

         After the Antons purchased Unit 9A, the Antons and the Stengels ran their Condominium informally. Tr. 18:20-22. Dr. Stengel would discuss the condominium affairs with Mr. Anton when they would meet or contact him by phone or email if something came up in the meantime. Tr. 18:23-19:3. The two would successfully resolve any disagreements that would arise between them. Tr. 19:4-9. The Condominium would not otherwise hold formal Condominium Association meetings, Board of Directors meetings, or set a Condominium budget. Tr. 19:10-15. Instead, Dr. Stengel essentially managed the Condominium and kept track of the expenses, sending invoices or summaries of the expenses to the Antons twice a year. Tr. 19:16-20:1; Pls.' Ex. 23. Dr. Stengel's invoices show each Owner paid an amount of the Condominium's expenses proportionate to their Unit's Allocated Interest in the Common Elements-sixty-seven (67%) percent for the Stengels and thirty-three (33%) percent for the Antons. Tr. 20:4-20, Oct. 2, 2018.

         The Antons' and the Stengels' informal management of the Condominium continued until Mrs. Stengel fell and broke her hip in late 2016, making it difficult for her to navigate Unit 9's stairs. At that time, the Stengels informed the Antons of their intention to sell Unit 9. Tr. 23:21-24:1. Mr. Anton first learned about the Houzes as the prospective purchasers of Unit 9 in late December 2016 through Dr. Stengel's broker. Tr. 26:4-10. On December 30, 2016, shortly after being first notified by the broker, Mr. Anton emailed her to ask that she be fully transparent with the prospective purchasers about the contents of the Condominium Documents and what they require of the Unit Owners. Tr. 26:11-21; Pls.' Ex. 34. Mr. Anton further requested that Dr. Stengel's broker confirm that she had advised the buyers of the protections and restrictions of the Condominium contained in the Condominium Documents. Tr. 27:6-22; Pls.' Ex. 34. On January 6, 2017, Mr. Houze signed a Receipt acknowledging that he received the Condominium Documents. (Pls.' Ex. 18.)[7]

         On February 4, 2017, the Antons first met the Houzes in Boston, Massachusetts to discuss the sale.[8] Tr. 28:5-10. It was during this meeting Mr. Houze first informed the Antons of his intention to renovate the interior and exterior of the Condominium-the estimated costs of which would exceed $300, 000. Tr. 28:11-19. In response, the Antons informed Mr. Houze that- pursuant to the Condominium Documents-he would first need their approval but they would be open to discussing the renovations after reviewing the plans. Tr. 28:20-23. Mr. Anton testified that in light of this information regarding the Condominium, Mr. Houze made no further inquiry into the governance matter or otherwise initiated a conversation about it. Tr. 22:16-23:5, Oct. 2, 2018. On February 7, 2017, Mr. Anton followed up with an email to further explain the relevant provisions of the Condominium Documents regarding the management of the Condominium, but Mr. Houze did not respond. Tr. 28:24-29:2, Oct. 2, 2018; Tr. 22:1-4, Oct. 2, 2018 (Afternoon session) (Pls.' Ex. 36.) Receiving no response to his email, Mr. Anton called Mr. Houze who answered and said he did not want to talk to him. Tr. 28:24-29:2, Oct. 2, 2018.

         The Antons, the Stengels, and the Houzes all met in March of 2017 to further discuss the sale. At this meeting, Mr. Anton testified he and Dr. Stengel again informed the Houzes they needed the other Unit Owner's approval to conduct any exterior renovations. Tr. 29:18-30:3, Oct. 2, 2018. On March 31, 2017, at Mr. Anton's direction, his attorney sent an email to Mr. Houze's then lawyer, Mr. Parnagian, regarding the governance issue. Id. at 30:4-22; Pls.' Ex. 38. Mr. Parnagian responded stating that "for the time being we will just agree to disagree on the overall governance scheme of the existing documents. The fact remains that the governance scheme (whatever that may be) was and is still in existence long before my clients executed a Purchase and Sale Agreement on the unit." Tr. 5:10-6:7, Oct. 2, 2018 (Afternoon session); Pls.' Ex. 39. It is uncontested that the Houzes were aware of the Antons' position regarding the Condominium Documents as they related to the Condominium's governance scheme prior to their purchase of Unit 9.

         The Houzes purchased Unit 9 of the Condominium on May 24, 2017. Shortly after Unit 9's closing, the Antons sent an email welcoming the Houzes to the Condominium, informing them about the Condominium's landscaping service and expressing their interest to review the Houzes' renovation plans-stating they presumed the Houzes would not start their renovations beforehand. Tr. 32:21-25, Oct. 2, 2018; Pls.' Ex. 40. Additionally, at the Antons' request, Attorney Rachelle Green sent a letter to Mr. Parnagian regarding the approval the Houzes were required to obtain before proceeding with their renovations-expressing the Antons' concern that the Houzes may ignore these requirements. Tr. 33:8-34:7, Oct. 2, 2018; Pls.' Ex. 41. By letter dated June 8, 2017, Mr. Parnagian wrote back to Ms. Green, claiming the Antons had been aggressive and noncompliant with various provisions of the Condominium Documents, along with other grievances the Houzes claimed to have had with the Antons' conduct. (Pls.' Ex. 42.) On June 15, 2017, after reading Mr. Parnagian's June 8 letter, the Antons wrote a letter directly to the Houzes, in part to dispute the assertions made in the letter. (Pls.' Ex. 43.) Furthermore, having noticed that the Houzes already began with their renovations to Unit 9's rear deck without the approval from the Board of Directors, the Antons requested the Houzes bring a copy of the plans for the deck to their next meeting. (Pls.' Ex. 43.) The Antons further expressed their willingness to review the planned renovations and also their concern over maintaining their privacy and the Condominium's architectural style. (Pls.' Ex. 43.)

         Mr. Anton testified that his wife frequently reached out to Mr. Houze, in person and by email, to discuss landscaping and other maintenance issues with the Condominium, and repeatedly requested copies of the Houzes' planned renovations for review. Tr. 34:1-7, Oct. 2, 2018. Mr. Anton further testified that both he and his wife assumed the Houzes would ultimately provide them with their renovation plans for review before beginning any of the work. Tr. 34:8-13. This expectation changed, however, when the Houzes began with their interior renovations without first consulting them, although the Antons continued insisting that their consent was needed due to the structural alterations being made to the Unit. Tr. 34:14-19, Oct. 2, 2018; Pls.' Exs. 36 & 41.[9]

         Mr. Anton recalled Mr. Houze requesting their consent only once, in October of 2017, when he provided Mrs. Anton with a list of exterior renovations for which he wanted approval. Mrs. Anton requested the corresponding plans before consenting to the renovations, but Mr. Houze did not provide them. Tr. 34:20-35:5. After not receiving this consent from Mrs. Anton because he failed to provide the plans, Mr. Houze represented to the Newport Building Department, in his building permit application, that the Condominium's Board of Directors had approved of the exterior renovations because the Houzes of Unit 9 voted in favor "with 67% of the votes." Tr. 34:20-35:15; Pls.' Exs. 62 & 82. Mr. Houze took the position that Unit 9's Allocated Interest gave him the authority to act on behalf of the Board of Directors, despite clear language to the contrary in the First Amended Declaration and the Condominium By-Laws. Mr. Anton testified he believed the Houzes' exterior renovations were to the Condominium's Common Elements and, therefore, the Houzes still needed the Antons' prior written consent as Unit Owners pursuant to § 8.1(i)(v) of the Amended Declaration. Tr. 35:1-15. On November 27, 2017, the Newport Building Inspector informed Mr. Houze that his building permit was going to be voided because Mr. Houze had failed to submit the proper plans for some of the work he intended to perform. (Pls.' Exs. 61 and 82, at 12.)[10]

         Filing their original Complaint shortly thereafter, on December 5, 2017, Mr. Anton testified he and his wife brought the instant litigation to prevent the Houzes from taking further unilateral action without their consent and to enforce the Condominium Documents' requirement for 100% of Unit Owner approval for alterations to the Common Elements. Tr. 35:12-36:2, Oct. 2, 2018.

         Mrs. Anton was the second witness to testify. She also testified as to their purchase of Unit 9A and to her interactions with Mr. Houze. Just like Mr. Anton, Mrs. Anton testified that the purpose of the First Amendment was to make sure they had equal say in the management of the Condominium as the owners of Unit 9A-irrespective of their Unit's share of the Allocated Interest. Tr. 65:3-66:5, Oct. 2, 2018 (Afternoon session.) Mrs. Anton understood the First Amendment achieved this through two alterations to the Declaration. First, she understood that the Board of Directors would consist of two members with equal voting power. Id. at 65:12-19. Second, Mrs. Anton understood that approval from all the Unit Owners must be obtained in order to make changes to the Condominium or the Condominium Documents, in order to assure there was equal control between the two Units. Id. at 65:19-66:5.

         Mrs. Anton testified that while the Stengels still lived in Unit 9, she and her husband would always ask Dr. Stengel for his approval with respect to anything pertaining to the Condominium, and he would do the same for them. Tr. 66:6-18. Dr. Stengel regularly apprised the Antons of any property services to be performed and would involve them in any decision making. Tr. 67:2-16. When first informed of the Antons' prospective renovations to Unit 9A around 2014, the Stengels supported their efforts. Tr. 68:9-19. In drawing up their renovations, Mrs. Anton instructed her architect to preserve the Condominium's exterior appearance and to be considerate of the Stengels during this process. Tr. 68:20-69:9, Oct. 2, 2018 (Afternoon session.) Before proceeding with their plans, the Antons presented their proposed plans to the Stengels and asked for their input. Tr. 70:1-15; Pls.' Exs. 10 and 11. Mrs. Anton also told their contractor, Peter Raposa, to continually check with the Stengels during construction for any concerns they may have. Tr. 70:16-71:14.

         Mrs. Anton agreed with her husband's recollection of their meetings with the Houzes in February and March of 2017. Tr. 71:25-72:14. After not having heard directly back from the Houzes to either their welcoming email in late May or their June 15 letter, Mrs. Anton testified she visited Unit 9 over the July 4th weekend to talk with Mr. Houze. Tr. 76:21-77:15. At that time, Mr. Houze expressed his interest in serving as the Condominium's property manager. Tr. 77:16-23. Mrs. Anton testified she was fine with him acting as the property manager, but emphasized he would still need to check with her as a member of the board of representatives on all matters-and further mentioned that she looked forward to reviewing their renovation plans. Tr. 77:16-78:3. On July 17, 2017, Mrs. Anton followed up this conversation with an email to Mr. Houze, requesting to meet as the Board of Directors to set a common expense budget for the year along with other outstanding issues. Tr. 78:13-23; Pls.' Ex. 44. Mr. Houze did not respond to her email. Tr. 79:24-80:1.

         Nevertheless, the Houzes proceeded with renovations in late July 2017-without receiving the Antons' approval-in part by removing privacy fencing, removing a chimney, and beginning their interior renovations on Unit 9. Tr. 80:2-8. Mrs. Anton found the Houzes' building permit application for this work online and noticed that it included work for interior structural renovations-something she believed required the Board of Directors' approval. Tr. 80:22-81:15; Pls.' Ex. 81. Mrs. Anton also testified she noticed that these renovations would add square footage to Unit 9 and this required the Unit Owners' unanimous approval.[11] Tr. 83:6-16, Oct. 2, 2018 (Afternoon session); Tr. 2:17-3:6, Oct. 3, 2018. Mrs. Anton testified she also believed that the Houzes' exterior alterations-including the removal of a chimney, the privacy fencing, and the awning from the rear deck-required their approval because they were part of the Condominium's Common Elements. Tr. 3:7-14, Oct. 3, 2018. After talking with the Newport Building Inspector, the Antons learned the Houzes were removing Unit 9's bearing walls and installing steel beams in their place. Tr. 3:15-19, Oct. 3, 2018. Mrs. Anton testified she and her husband were concerned about the interior renovations' effect on the Condominium's structural integrity, but the Building Inspector reassured them he would make sure it was done in compliance with the building code. Tr. 3:15-4:6, Oct. 3, 2018. Although the Antons were ultimately disappointed that the Houzes proceeded without their approval, or providing their plans for review, Mrs. Anton testified they decided not to take legal action at that time because they still wanted to try and have an amicable relationship with the Houzes. Id.

         While choosing not to take legal action, Mrs. Anton testified she sought to address these issues by holding a Board of Directors meeting. Tr. 4:7-19, Oct. 3, 2018. On August 8, 2017, Mrs. Anton emailed Mr. Houze with a request to hold a formal meeting as a Board of Directors on August 18, 2017 at 10 a.m. Id. at 4:7-25:14; Pls.' Ex. 46. Mr. Houze did not respond until the morning of the meeting to inform Mrs. Anton that he was unable to make the meeting. Id. at 6:10- 17; Pls.' Ex. 46. On September 5, 2017, Mrs. Anton emailed Mr. Houze again, requesting he provide alternate dates in order to arrange a meeting, but Mr. Houze never responded. Tr. 7:2-16, Oct. 3, 2018; Pls.' Ex. 47. Mrs. Anton testified that the Houzes' work on Unit 9's interior renovations was ongoing during this time. Id. at Tr. 7:24-8:3. On October 23, 2017, Mr. Houze emailed Mrs. Anton, requesting to meet on October 25 to discuss some planned exterior renovations which he had attached a list of to the email. Tr. 8:3-20; Pls.' Ex. 48.

         Mrs. Anton attended the October 25th meeting, stating she was there in her capacity as the Board representative of Unit 9A. Tr. 10:3-5. Mrs. Anton recalled that Mr. Houze stated he was only meeting with her because the Newport Building Inspector would not approve of the building permit for the exterior renovations without the approval of the other condominium owners. Tr. 10:5-11. Upon Mr. Houze's request for Mrs. Anton's approval, she asked to review the plans beforehand. Tr. 10:11-16. Although Mr. Houze had the architectural plans, he told her that she did not need them and refused to provide the plans or any further information about the exterior renovations listed, so the meeting ended without Mrs. Anton providing her approval. Tr. 10:18-11:15. On November 10, 2017, Mrs. Anton emailed Mr. Houze to request the architectural plans for the exterior renovations again, but she received no response. Tr. 12:2-9; Pls.' Ex. 49. On November 18, 2017, Mrs. Anton emailed Mr. Houze again to inform him that, responding before the end of the Board of Director's thirty-day review period pursuant to § 8.6 of the By-Laws, his request for the proposed exterior renovations was denied because she had not yet seen the corresponding plans for review. Tr. 13:17-14:9; Pls.' Ex. 50.[12]

         Subsequently Mrs. Anton learned, as referenced by Mr. Anton earlier, that Mr. Houze had submitted another building permit application to the Newport Building Inspector, claiming that the Board of Directors had approved of the list of proposed exterior renovations. Tr. 15:1-14; Pls.' Ex. 82. Attached to the application, Mr. Houze wrote a letter to the Building Inspector which stated:

Following a Board meeting held on October 25th 2017 the association was presented with a schedule of exterior renovations for Unit 9.
Philippe & Marie Houze of Unit 9 with 67% of the votes approved the entire list of exterior renovations submitted at the meeting. Vote for list of exterior renovations attached to this document.
Tami Anton and Charles Anton representing Unit 9A with 33% of the votes informed us of their refusal in an email sent by Tami Anton dated 11/18/2017.
With 67% of the votes the renovation for the exterior of Unit 9 have therefore been approved by the Board of Directors. (Pls.' Ex. 82.)[13]

         Mrs. Anton testified she learned that the permit was initially given but then voided until more detailed plans for the renovations were provided. Tr. 17:14-18:5. Mrs. Anton testified that she and Mr. Anton filed suit shortly thereafter because Mr. Houze continued with the renovations despite their repeated objections and efforts to inform him of what was required under the Condominium Documents. Tr. 19:1-13. Mrs. Anton testified she and Mr. Anton are seeking to protect their investment in Unit 9A by having the provisions of the First Amendment to the Declaration and the Condominium Documents as a whole enforced, as it was negotiated in anticipation of this type of situation. Tr. 25:14-26: 3.

         The Plaintiffs also presented the deposition testimony of Mr. Brian Bardorf, an attorney and friend of the Stengels, which was read into the record, explaining how the Condominium came to fruition. Mr. Bardorf, an attorney regularly involved in condominium law that had represented the Stengels in previous real estate transactions, drafted the original Condominium Documents. Tr. 54:5-22, Oct. 3, 2018. Mr. Bardorf provided historical information regarding the inception of the Condominium. He testified that around 1990, Dr. Stengel approached Mr. Bardorf with questions about relocating Dr. Stengel's elderly father, Charles, to Newport. Tr. 54:7-15. Mr. Bardorf recommended building a second home adjacent to the Stengels and turning 9 Victoria into a two-unit condominium. Tr. 54:12-22, Oct. 3, 2018. Before converting the property into the Condominium, Charles Stengel paid for the construction of the addition that would become Unit 9A and his personal residence. Tr. 75:7-20, Oct. 3, 2018.

         Mr. Bardorf drafted the original Condominium Documents and recorded them in the Land Evidence Records of the City of Newport. Tr. 55:3-20, Oct. 3, 2018; Pls.' Ex. 1.[14] Mr. Bardorf explained that he created the two-member Board of Directors because he believed the Condominium Act allowed for one representative for each Unit. Id. at 56:8-21. Considering the Condominium only had three people between its two Units, Mr. Bardorf testified he saw having two members as practical. Id. Mr. Bardorf testified that he included an arbitration provision in § 8.1 of the By-Laws because of the "close-knit situation" between the Unit Owners of this Condominium, and to find a "relatively informal solution" for any problem. Tr. 56:22-57:18.[15] To Mr. Bardorf's knowledge, the Stengels did not have any difficulties with operating the Condominium while Charles Stengel lived in Unit 9A. Tr. 57:19-23.

         In 2006, Mr. Bardorf was again involved with the D & J Condominium when the Antons sought to purchase Unit 9A. Mr. Bardorf recalled that the Antons wanted to keep the Units' Allocated Interest the same as it related to shared expenses, agreeing with the Stengels that the 67-33 split between them "was a fair representation of values," but the Antons were concerned about the effect this minority share of the Allocated Interest would have on their control or voting power in significant matters of the Condominium. Tr. 60:1-19, Oct. 3, 2018. Thereafter, Mr. Bardorf spoke with the Antons' lawyers about the Condominium Documents and the proposed changes sought. Id. at 59:1-18. Mr. Bardorf learned from his communications with the Antons' lawyers that they sought an amendment to the Declaration "to clarify" that the Board of Directors of the Condominium would "equally represent" both units. Tr. 80:21-81:16, Oct. 3, 2018 .

         With respect to the First Amendment's addition of § 8.1(i)(v) of the Declaration, requiring one hundred percent (100%) approval of the Unit Owners to do anything over $ 1, 000 to the Common Elements, Mr. Bardorf testified that the purpose for this was so one Unit Owner could not proceed without the other Owner's approval. Tr. 83:10-21.[16] Mr. Bardorf testified that the language in the First Amendment amending § 8.1(i) of the Declaration was added for the purposes of requiring the Unit Owners' unanimous approval before proceeding with such changes, so the Condominium would remain the same if there was no consensus between them. Tr. 60:1-19. Mr. Bardorf further testified that Article VIII of the Declaration, entitled "FHLMC/FNMA PROVISIONS," also contained boilerplate language he would add to all Declarations in order to comply with Fannie Mae and Freddie Mac requirements, enabling the buyers of units to acquire a mortgage. Tr. 85:12-86:1.

         During the discussions regarding the First Amendment to the Declaration, Mr. Bardorf testified that Dr. Stengel was involved in the process and had no problem with the Antons' requests. Tr. 61:8-20, Oct. 3, 2018. In addition to regular phone conversations during these discussions, Mr. Bardorf and the Antons' lawyers exchanged drafts of the transaction documents for the prospective purchase of Unit 9A, including drafts of the Purchase and Sale Agreement as well as drafts of the First Amendment to the Declaration. Tr. 64:25-65:6, Oct. 3, 2018. The First Amendment to the Declaration was executed on March 24, 2006 and recorded in the Land Evidence Records in the City of Newport prior to the sale of Unit 9A to the Antons. Tr. 67:3-10, Oct. 3, 2018; Pls.' Ex. 2.

         The Plaintiffs also called Edmund A. Allcock who was an attorney with a practice that centers around condominium law in Massachusetts, New Hampshire, and Rhode Island. Mr. Allcock was qualified as an expert witness on condominium law and testified regarding the Rhode Island Condominium Act and the Condominium Documents at issue. Mr. Allcock opined that the Condominium Documents provided for a two-member Board of Directors with one member appointed by each Unit Owner. Tr. 108:16-20, Oct. 4, 2018. Mr. Allcock further interpreted this to mean that each member had an equal vote and that neither member could be removed. Tr. 108: 21-109:7; 162:20-25, Oct. 4, 2018. Mr. Allcock testified that most two-unit condominiums would typically provide for equal board membership and governance between the units. Tr. 123:12-124: 1, Oct. 4, 2018. Mr. Allcock also opined that the Unit Owners have the right to enforce the provisions found in Article VIII of the Declaration. Tr. 116:23-117:6, Oct. 4, 2018.

         The Antons' next witness was Peter Raposa. Mr. Raposa, a civil engineer for over forty years, was qualified as an expert in construction. Mr. Raposa testified as to what constitutes the structural components of a building in reference to the Declaration's definition of a "Unit." Pls.' Ex. 1, Declaration § 1.24.) Mr. Raposa is the owner of PJR Construction Company, Inc. and was the contractor for the Antons' renovation of Unit 9A in 2014. Tr. 166:10-13, Oct. 4, 2018. Mr. Raposa testified as to what comprises the structural elements of a roof and vertical walls. Tr. 169: 13-21, Oct. 4, 2018. For both the roof and the vertical walls of a structure, Mr. Raposa testified that the most exterior structural element of either is the plywood wrapped with the weathertight membrane-underneath the shingles or clapboards. Tr. 170:11-171:3, Oct. 4, 2018. Mr. Raposa further testified that a house would not be considered finished until it had the shingles on top of the plywood wrapped with the membrane, although these are not considered structural components. Tr. 173:10-174:6, Oct. 4, 2018.

         The Antons also called Mr. Thomas O. Sweeney, who was qualified as an expert in real estate appraisal. Mr. Sweeney testified to the significance the degree of control over the management of a condominium would have on an individual unit's sale price. Mr. Sweeney is a licensed real estate broker in Rhode Island and Massachusetts as well as a certified general appraiser in Rhode Island. Tr. 175:12-18, Oct. 4, 2018. When advising prospective buyers or sellers of condominium units and what the price for it should be, Mr. Sweeney would consider the rights an owner would have and their degree of control within the condominium. Tr. 177:2-17, Oct. 4, 2018. Considering the Houzes' position-that they have the right to vote with Unit 9's 67 percent of the Allocated Interest to elect a three-member board of directors-Mr. Sweeney testified that the value of a unit in a two-unit condominium would be negatively impacted if the other unit had majority control over the condominium. Tr. 178:21-181:5, Oct. 4, 2018. The Antons rested their case after Mr. Sweeney's testimony.

         The Defense presented Mr. Houze as their first witness. Mr. Houze testified that he first learned of Unit 9 being offered for sale at the end of November 2016. Tr. 202:8-25, Oct. 5, 2018. At the time of trial, the Houzes also had another residence in the Point District of Newport. The Houzes visited Unit 9 together on two occasions, but Mr. Houze called Dr. Stengel to arrange subsequent visits, so he could show the property to contractors to get estimates for renovations. Tr. 203:1-19, Oct. 5, 2018.

         Mr. Houze testified he read the Declaration and the By-Laws "line by line." Tr. 203:20-24, Oct. 5, 2018. Mr. Houze testified he reviewed the Condominium Documents as originally executed and the Plats and Plans "to find out what had been removed" by the First Amendment. Id. at 203:25-205:4; Defs.' Ex. M. The original § 2.3 of the Declaration stated:

2.3 The Condominium Units. The general description and number of each Unit, including its dimensions, location, and such other data as may be necessary or appropriate for its identification, are set forth in the Survey and the Plats and Plans. (Pls.' Ex. 1.)

         Concerned by the fact that the Plats and Plans were not attached to the Declaration, Mr. Houze obtained copies of the Plats and Plans filed with the original Declaration at Newport City Hall. Tr. 203:25-205:13, Oct. 5, 2018; Defs.' Ex. M. As he expected, Mr. Houze saw that the Plats and Plans depicted "the interior dimensions of the units." Id. at 208:21-209:12. Section 2.3 of the Amended Declaration states:

2.3 The Condominium Units. The general description and identification of each unit, including unit dimensions, location and such other data as may be necessary or appropriate for its identification, are as set forth in Exhibit 'B' attached hereto. (Pls.' Ex. 2.)

         Exhibit B of the Declaration describes each Unit in part as a "two (2) story . . . wood frame dwelling house, customized colonial style" and further identifies the rooms belonging to each Unit. (Pls.' Ex. 1.)

         Since § 2.3 of the Amended Declaration omitted the language referring to the Plats and Plans and added a reference to Exhibit B of the Declaration, Mr. Houze testified that in his opinion § 2.3 of the Amended Declaration's new description of "The Condominium Units" had changed what constituted a Unit, altering the Units' boundaries from the Units' interior dimensions to encompass the entire structure.[17] Tr. 209:2-210:3; 229:13-231:8. Mr. Houze testified-based upon his interpretation-that he believed Exhibit B's description of a "wood frame dwelling house" implied he "purchased the entire house, meaning the outside walls, windows, doors, garage, including all walls and everything else." Tr. 209:16-25; 229:13-231:8, Oct. 5, 2018. He further testified that the fact that Dr. Stengel raised no objection when Mr. Houze expressed his interest in renovating Unit 9 was a confirmation for him he would be able to perform these reservations. Id. at 209:16-210:3.

         Although Mr. Houze acknowledged that Exhibit B-as originally drafted-also referred to both Units as "wood frame dwelling house[s]" and was incorporated into § 1.24 of the Declaration's definition of a Unit, he testified that he believed the original Declaration's definition of a Unit did not refer to the entire structure. Tr. 233:5-11, Oct. 5, 2018. Mr. Houze explained he believed his interpretation of § 2.3 of the Amended Declaration was consistent with the definition of a Unit. Tr. 231:9-17. Mr. Houze points to § 1.24 of the Declaration's reference to "the exterior plane of the finished roof"-something that was also part of the Unit's definition as originally drafted-as support of his interpretation which included the outermost components of the Condominium as parts of the Units. Tr. 210:10-211:21.

         Mr. Houze testified that prior to closing on Unit 9, the Antons and the Houzes met in Boston on February 4, 2017. Tr. 215:14-16. At this meeting, Mr. Houze told the Antons he intended to make renovations to Unit 9 if their purchase went through, and he remembered reading Mr. Anton's February 7, 2017 email regarding the various provisions of the Condominium Documents. Tr. 238:3-10; Pls.' Ex. 36. Having reviewed Mr. Anton's email at that time, Mr. Houze testified he acknowledged that the Antons had a substantially different interpretation of the Condominium Documents than he did, but still did not respond. Tr. 239:2-20. Mr. Houze testified he ultimately decided not to respond to this email-or the Antons' other communications- because he was offended by the Antons at the meeting in Boston, seeing that it was "impossible" to deal with their requests. Tr. 220:9-17. Despite this obvious conflict regarding the governance of the Condominium and the interpretation of the Condominium Documents, the Houzes continued to pursue purchasing Unit 9.

         Prior to closing, the Houzes met with the Antons and Stengels on March 19, 2017. Tr. 220: 18-21. Mr. Houze testified that Mrs. Anton had demanded that he present them with plans for their renovations and that he must have the Antons' approval prior to construction. Tr. 221:14-18. On March 31, 2017, the Houzes' attorney forwarded an email to Mr. Houze that he received from the Antons' attorney. Tr. 222:13-23; Pls.' Ex. 38. Mr. Houze testified that after reviewing the email outlining the Antons' legal position, the important part to Mr. Houze was "Section 3.2(i) [of the By-Laws, stating] that all duties are to be performed by the board of directors under the bylaws require majority of the directors." Tr. 223:3-8. This was significant to Mr. Houze because of his interpretation that Unit 9 had 67 percent of the Allocated Interest as opposed to the Antons' 33 percent interest as the owners of Unit 9A. Tr. 223:9-13. When questioned about his understanding of the Board of Directors as defined by § 1.5 of the Amended Declaration, Mr. Houze testified:

A: My understanding is that since there were only two owners, each unit owner would claim - would come to the board of directors and be on the board of directors with the respective percentage of interest. . . . We just elect them, but in this case there was no election possible because there were only four people, so since there was, to me, no elections, we would come as being board members and vote with our respective applicable interest of 33 and 67 percent. Tr. 224:9-21.

         Mr. Houze maintained this opinion even though the Condominium Documents clearly require a majority vote of the Board of Directors without any reference to the Allocated Interest.[18] In addition, Mr. Houze did not believe anything mentioned in the Antons' attorney's email challenged his interpretation of the Condominium Documents. Tr. 225:13-226:4. Mr. Houze actually found that the email "reinforced" his opinion that Unit 9's 67 percent of the Allocated Interest provided him a controlling majority on the Board of Directors under the Condominium Documents, although he acknowledged that the Antons' interpretation of the Condominium Documents was that they had equal representation and equal voting power on the Board of Directors. Tr. 260:2-15; Pls.' Ex. 38.

         With respect to the Antons' interpretation of the Condominium Documents, Mr. Houze testified he believed the Antons were trying to persuade him into seeing this form of "equal control" the same way as they did, but he was only concerned about what was stated in the Condominium Documents. Tr. 226:8-19. Mr. Houze testified he saw the Condominium Documents as a "contract between the owners of this condominium, so if anyone has an opinion, especially someone vested into this property, giving [him] advice, [he would not] take it." Tr. 226:23-227:1.

         Mr. Houze testified he did not regularly ask for the Antons' approval before proceeding with various changes to the exterior elements of the Condominium. Tr. 245:25-249:11. Mr. Houze acknowledged that he had certain work done on the exterior of the Condominium amidst this litigation, without requesting the approval of either the Antons or this Court, including installing soffits, exterior lights, a low voltage transformer, as well as removing a privacy fence from the exterior edge of Unit 9's deck. Id. Amidst questioning regarding whether he did or did not ask the Antons if he could proceed with these numerous renovations, Mr. Houze stated that they "don't talk to each other." Tr. 246:9-12.

         Mr. Houze testified he had requested the Antons' approval for a number of exterior renovations to the Condominium in October of 2017, although he acknowledged that the Newport Building Inspector, William Hanley, had requested that Mr. Houze provide evidence that the Condominium had approved of the proposed renovations in order to obtain a building permit. Tr. 251:13-22; Pls.' Ex. 82. To comply with the Building Inspector's request-while knowing that the Antons refused to approve of the exterior renovations until they had an opportunity to review the corresponding plans-Mr. Houze submitted a letter, dated November 24, 2017, with the alleged results from a Board meeting held on October 25, 2017, voting on a "schedule of exterior renovations for Unit 9." Tr. 252:1-12; Pls.' Ex. 82. As testified to by Mrs. Anton, the letter stated that the Houzes' proposed exterior renovations had been approved by the Board of Directors with Unit 9's "67% of the votes." (Pls.' Ex. 82.) Mr. Houze acknowledged under the Antons' interpretation of the Condominium Documents that this submission representing the approval of the Board was insufficient for obtaining approval, but Mr. Houze chose not to inform the Building Inspector about their difference of opinion on this issue when requesting the building permit. Tr. 252:23-255:3. Despite knowing of their differing interpretation of the Condominium Documents, Mr. Houze testified that he believed the Antons' approval was inconsequential because he believed he could unilaterally approve of the renovations because of his belief that Unit 9's 67% of the Allocated Interest gave him a "super majority." Tr. 254:16-255:3.

         Attorney Frank Lombardi testified for Defendants as an expert with respect to condominium real estate matters. Tr. 279:17-23, Oct. 5, 2018. Mr. Lombardi testified about FHLMC ("Freddie Mac") and FNMA ("Fannie Mae") and their significance to the secondary mortgage market. Tr. 283:2-24, Oct. 5, 2018. He testified that when working with condominium developers, he would regularly submit the declaration to a lender or their mortgage broker to determine whether the declaration contained provisions needed for Fannie Mae and Freddie Mac approval. Tr. 284:3-13, Oct. 5, 2018. Mr. Lombardi stated that Article VIII of the Declaration, titled "FHLMC/FNMA PROVISIONS," is not required by the Rhode Island Condominium Act. Tr. 285:11-18, Oct. 5, 2018. Corroborating Mr. Bardorf's deposition testimony about Article VIII of the Declaration containing standardized language, Mr. Lombardi testified that the standard language is always used and has been consistently approved by loan officers as well as Fannie Mae and Freddie Mac. Tr. 285:19-286:11, Oct. 5, 2018. However, Mr. Lombardi testified that the standardized template had been altered in Article VIII of the Declaration, finding that the language in § 8.1(a) through half of § 8.1(h) of the Declaration was predominantly standard. Tr. 305:18-306:21, Oct. 5, 2018. In particular, Mr. Lombardi testified that Fannie Mae guidelines do not require any such consent from unit owners as found in § 8.1(i) of the Declaration-where the Declaration originally called for the consent of "Unit Owners entitled to at least sixty-seven (67%) percent of the Common Areas and Facilities" but changed to "one hundred (100%) percent" of the Unit Owners by the First Amendment. Tr. 305:3-17, Oct. 5, 2018; Pls.' Exs. 1 & 2.

         Mr. Lombardi further testified that this standardized language is for the protection of eligible first mortgagees and not applicable if there are no "First Mortgagees holding mortgages on Units entitled to least fifty-one (51%) percent of the Common Areas and Facilities." Tr. 286: 12-287:10, Oct. 5, 2018; Pls.' Ex. 1. Furthermore, Mr. Lombardi determined that any holder of a mortgage on Unit 9A would not be able to enforce § 8.1(i)(v) of the Declaration because Unit 9A possessed less than 51% of the Allocated Interest. Tr. 287:11-288:14, Oct. 5, 2018. Accordingly, Mr. Lombardi opined that § 8.1(i)(v) of the Declaration, requiring the consent of 100% of the Unit Owners for improvements to the Common Elements, was not enforceable by the Antons. Tr. 289: 17-290:1, Oct. 5, 2018.

         Following the trial, after the parties submitted supplemental memoranda and subsequent reply memoranda, this Court heard oral argument on November 2, 2018.

         II Parties' Arguments

         The Antons contend that the Houzes have violated provisions of the Condominium Documents by proceeding with their renovations without first obtaining the necessary approval for making alterations either to their own Unit or to the Condominium's Common Elements. The Antons seek a declaration from this Court as to the valid interpretation of these various provisions in the Condominium Documents pertaining to this issue. The Antons contend that § 8.1(i) of the Amended Declaration required the Houzes to obtain the Antons' "prior written consent" as Unit Owners before performing renovations to the Condominium's Common Elements. The Antons also assert that the Condominium Documents plainly state that the two Units are equally represented on the two-member Board of Directors, and the Board is only authorized to act when the two members reach a consensus. In response to the Houzes' counterclaim that this two-member Board of Directors conflicts with the Act, the Antons contend the Houzes' claim is time-barred because of the one-year statute of limitations pursuant to § 34-36.1-2.17(b). Alternatively, the Antons argue § 34-36.1-3.03(f) does not require the Board of Directors to have at least three members. They also argue § 34-36.1-3.03(g) does not require a procedure for the removal of said members from the Board, because these subsections are not applicable to this Condominium. The Antons further seek a declaration finding that various components of the Houzes' renovations are part of the Condominium's Common Elements rather than part of the Units, and therefore require the Antons' approval as Unit Owners, pursuant to § 8.1(i)(v) of the Amended Declaration, in addition to obtaining the Board of Directors' approval pursuant to § 3.1 of the Declaration and § 8.6 of the By-Laws. The Antons also seek injunctive relief preventing the Houzes from unilaterally proceeding with any renovations or modifications to either the exterior elements of the Condominium or the interior structural elements of Unit 9. Lastly, the Antons request attorney's fees under § 34-36.1-4.17 and § 10.1 of the Declaration for the Houzes' violations of the Condominium Documents.

         The Houzes contend that § 8.1(i)(v) of the Amended Declaration is not enforceable by the Unit Owners because Article VIII of the Declaration was only intended for the protection of any first mortgages on the Condominium's Units and is, therefore, only enforceable by First Mortgagees for that purpose. The Houzes further claim that the exterior of the Condominium in its entirety is part of the Units and, therefore, they did not need to obtain the prior written consent of 100% of the Unit Owners, pursuant to § 8.1(i)(v) of the Amended Declaration, in order to renovate the exterior components of the Condominium.

         The Houzes' declaratory judgment counterclaim seeks a determination that the Antons' interpretation of the First Amendment, providing for a non-elected two-member Board of Directors, is inconsistent with §§ 34-36.1-3.03(f) and (g) of the Act and therefore unenforceable. Pursuant to § 34-36.1-3.03(f), the Houzes argue that the Board of Directors must consist of at least three members, all of whom must be elected by the Unit Owners based on each Unit's Allocated Interest. (Defs.' Mem. 16.) Furthermore, the Houzes contend the Antons' interpretation of the non-elected two-member Board of Directors deprives them of their right as Unit Owners to remove a member of the Board of Directors with their Unit's 67% of the Allocated Interest pursuant to § 34-36.1-3.03(g). The Houzes also contend that the one-year statute of limitations under § 34-36.1-2.17(b) does not apply because they argue the First Amendment is void ab initio.

         III

         Standard of Review

         In a non-jury trial, the standard of review is governed by Super. R. Civ. P. 52(a). The Rule provides that "[i]n all actions tried upon the facts without a jury . . . the court shall find the facts specially and state separately its conclusions of law thereon . . . ." Accordingly, "[t]he trial justice sits as a trier of fact as well as of law." Hood v. Hawkins, 478 A.2d 181, 184 (R.I. 1984). In a non-jury trial, '"determining the credibility of [the] witnesses is peculiarly the function of the trial justice."' McEntee v. Davis, 861 A.2d 459, 464 (R.I. 2004) (quoting Bogosian v. Bederman, 823 A.2d 1117, 1120 (R.I. 2003)). This is so because it is "the judicial officer who [actually observes] the human drama that is part and parcel of every trial and who has had an opportunity to appraise witness demeanor and to take into account other realities that cannot be grasped from a reading of a cold record." In re Dissolution of Anderson, Zangari & Bossian, 888 A.2d 973, 975 (R.I. 2006).

         Although the trial justice is required to make specific findings of fact and conclusions of law, "brief findings will suffice as long as they address and resolve the controlling factual and legal issues." White v. LeClerc, 468 A.2d 289, 290 (R.I. 1983); Super. R. Civ. P. 52(a). Accordingly, a trial justice is not required to provide an extensive analysis and discussion of all evidence presented in a bench trial. Donnelly v. Cowsill, 716 A.2d 742, 747 (R.I. 1998); see also Anderson v. Town of East Greenwich, 460 A.2d 420, 423 (R.I. 1983). Competent evidence is needed to support the trial justice's findings. See Nisenzon v. Sadowski, 689 A.2d 1037, 1042 (R.I. 1997). Moreover, the trial justice should address the issues raised by the pleadings and testified to during the trial. Nardone v. Ritacco, 936 A.2d 200, 206 (R.I. 2007). However, "a trial justice need not 'categorically accept or reject each piece of evidence in his decision for this Court to uphold it because implicit in the trial justice's decision are sufficient findings of fact to support his rulings.'" Notarantonio v. Notarantonio, 941 A.2d 138, 147 (R.I. 2008) (quoting Narragansett Electric Co. v. Carbone, 898 A.2d 87, 102 (R.I. 2006)).

         The UDJA "grants broad jurisdiction to [this Court] to 'declare rights, status, and other legal relations whether or not further relief is or could be claimed.'" Tucker Estates Charlestown, LLC v. Town of Charlestown, 964 A.2d 1138, 1140 (R.I. 2009) (citing § 9-30-1). Under the UDJA, the decision to grant declaratory relief is discretionary.24 See Sullivan v. Chafee, 703 A.2d 748, 751 (R.I. 1997) (citing Woonsocket Teachers' Guild Local Union 951, AFT v. Woonsocket School Committee, 694 A.2d 727, 729 (R.I. 1997)). Although the availability of alternative methods of relief does not necessarily preclude declaratory relief, "a necessary predicate to a court's exercise of its jurisdiction under the [UDJA] is an actual justiciable controversy." Sullivan, 703 A.2d at 751; Berberian v. Travisono, 114 R.I. 269, 272, 332 A.2d 121, 123 (1975). Declaratory judgment is not appropriate to determine abstract questions or to issue advisory opinions. Sullivan, 703 A.2d at 751 (citing Lamb v. Perry, 101 R.I. 538, 542, 225 A.2d 521, 523 (1967)). To be entitled to declaratory relief, a plaintiff must have both "a personal stake in the outcome of the controversy and . . . an entitlement to actual and articulable relief." McKenna v. Williams, 874 A.2d 217, 227 (R.I. 2005).

         The decision to grant injunctive relief rests within the sound discretion of the trial justice. Cullen v. Tarini, 15 A.3d 968, 981 (R.I. 2011). To grant a permanent injunction, the Court must find that (1) the plaintiff's legal arguments have merit; (2) the plaintiff will suffer irreparable harm if the injunction is not granted; and (3) balancing the equities and hardships of the parties weighs in favor of the plaintiffs. See Rhode Island Turnpike & Bridge Authority v. Cohen, 433 A.2d 179, 182 (R.I. 1981). When balancing the equities, the Court may also consider the public interest. See Rose Nulman Park Foundation ex rel. Nulman v. Four Twenty Corp., 93 A.3d 25, 32 (R.I. 2014).

         IV Analysis

         When reviewing a condominium declaration and its by-laws, our Rhode Island Supreme Court has said that it is '"appropriate to apply the laws of contract construction."' America Condominium Association, Inc. v. Mardo, 140 A.3d 106, 113 (R.I. 2016) (quoting Sisto v. America Condominium Association, Inc., 68 A.3d 603, 611 (R.I. 2013)). The contract "must be viewed in its entirety, and the contract terms must be assigned their plain and ordinary meanings." Rivera v. Gagnon, 847 A.2d 280, 284 (R.I. 2004). Consequently, "[i]f the contract terms are clear and unambiguous, judicial construction is at an end for the terms will be applied as written." Id. (citing W.P. Associates v. Forcier, Inc., 637 A.2d 353, 356 (R.I. 1994)). The Rhode Island Supreme Court "has stated that when the administration of a condominium complex is at issue, 'the condominium statutes and the declaration control[ ] the relationship between the parties.'" Town Houses at Bonnet Shores Condominium Association v. Langlois, 45 A.3d 577, 582 (R.I. 2012) (quoting Artesani v. Glenwood Park Condominium Association, 750 A.2d 961, 963 (R.I. 2000)). "In the event of a conflict between the provisions of the declaration and the bylaws, the declaration prevails except to the extent the declaration is inconsistent with [the Act]." Sec. 34-36.1-2.03(c). "The Court will refrain from engaging in mental gymnastics or from stretching the imagination to read ambiguity into a [contract] where none is present." Bliss Mine Road Condominium Association v. Nationwide Property and Casualty Insurance Co., 11 A.3d 1078, 1083 (R.I. 2010) (internal quotation marks omitted). "[I]n interpreting a declaration, the subjective intent of the parties should not be considered; rather, th[e] Court looks only to the intent expressed by the language of the declaration." Langlois, 45 A.3d at 583 (citing Bliss Mine Road Condominium Association, 11 A.3d at 1083). However, even in the absence of an ambiguity, the Court will "consider the situation of the parties and the accompanying circumstances at the time the contract was entered into, not for the purpose of modifying or enlarging or curtailing its terms, but to aid in the interpretive process and to assist in determining its meaning." Hill v. M. S. Alper & Son, Inc., 106 R.I. 38, 47, 256 A.2d 10, 15 (1969). Accordingly, this Court may "consider extrinsic evidence where relevant to prove a meaning to which the language of the instrument is reasonably susceptible . . . ." Haffenreffer v. Haffenreffer, 994 A.2d 1226, 1233 (R.I. 2010).

         A The First Amendment's Effect on Governance of the Condominium

         To address the issues presented by the parties, the Court must first interpret the relevant provisions found in the First Amendment to the Declaration and then determine their effect on the Condominium's governance scheme. The Court will address the plain language of the Declaration, the By-Laws, and, to the extent applicable, the intent of the parties when drafting the First Amendment. The relevant provisions pertaining to the Condominium's governance scheme that were changed by the First Amendment are § 1.5 of the Amended Declaration, defining the Condominium "Board of Directors," and § 8.1(i) of the Amended Declaration, requiring 100% Unit Owner approval for various actions-including "improvements to the Common Elements costing in excess of One Thousand ($1, 000.00) Dollars."

         1 Applicability of Article VIII of the Amended Declaration

         As a preliminary matter, the Houzes contend that Article VIII of the Declaration, in its entirety, is exclusively for the protection of a First Mortgagee's ability to sell their mortgage on a condominium unit. Thus, they argue only First Mortgagees can enforce the provisions found in Article VIII of the Declaration. In support, the Houzes point out that Article VIII of the Declaration's title, "FHLMC/FNMA PROVISIONS," expressly refers to Freddie Mac and Fannie Mae respectively. Furthermore, the Houzes assert that Article VIII was intended to be exclusively enforceable by "any First Mortgagee" because § 8.1 of the Declaration states in pertinent part that "the following provisions shall apply for the protection of the holders of the first mortgages (hereinafter "First Mortgagees") of record with respect to the Units and shall be enforceable by any First Mortgagee." (Pls.' Ex. 1.) The Houzes' expert witness, attorney Michael Lombardi, testified that Article VIII of the Declaration contains much of the same standard language inserted in most condominium declarations that are approved by Fannie Mae and Freddie Mac in order for mortgagees to sell the mortgage on the secondary market. However, he also acknowledged that Article VIII of the Declaration's language does deviate from the typical template's regularly-approved language. Tr. 305:18-306:9, Oct. 5, 2018. In particular, Mr. Lombardi testified that the standard boilerplate language typically includes no requirement whatsoever that the written consent of the unit owners must be obtained. Tr. 305:3-17.

         The Houzes' argument lacks merit. This Court finds that the Declaration clearly states that its restrictions and limitations imposed therein are enforceable not only by the Unit Owners but by "any person acquiring or owning an interest in said property"-including "any Mortgagee."[19] (Pls.' Ex. 1). The Fourth Paragraph on the First Page of the Declaration states:

NOW, THEREFORE, the Declarant hereby declares that all of the Property shall be, and hereby is, subject to the Rhode Island Condominium Act and shall be known as D & J CONDOMINIUM; and said Property hereby is held, conveyed, divided or subdivided, leased, rented and occupied, improved, and encumbered subject to the covenants, restrictions, uses, limitations, obligations, easements, equitable servitudes, charges, and liens (hereinafter sometimes referred to as "covenants and restrictions") hereinafter set forth, all of which are declared and agreed to be for the benefit of the Property, and shall be deemed to run with and bind he Property, and shall inure to the benefit of and be enforceable by the Declarant and by any person acquiring or owning an interest in said property and improvements, including, without limitations, any Mortgagee, as that term is hereinafter defined. (Pls.' Ex. 1.)

         This Paragraph evidences a clear intention for the entire Declaration to be enforceable by the Unit Owners as well as "any person acquiring or owning an interest in said property and improvements."

         In addition, § 11.2 of the Declaration explicitly states that its captions "are for convenience only and are not a part of this Declaration and are not intended in any way to limit or enlarge the terms and provisions of this Declaration." (Pls.' Ex. 1, § 11.2 of the Declaration.) Furthermore, regardless of the purpose of the original boilerplate language, the parties' intent is not determined by viewing Article VIII of the Declaration in isolation because '"the meaning should be gathered from the entire context and the language should be interpreted so as to subserve, and not subvert, the general intention of the parties . . . ."' Paul v. Paul, 986 A.2d 989, 995 (R.I. 2010) (quoting Massasoit Housing Corp. v. Town of North Kingstown, 75 R.I. 211, 216, 65 A.2d 38, 40 (1949)).

         Although § 8.1 of the Declaration states in part that "the following provisions shall apply for the protection of the holders of the first mortgages . . . and shall be enforceable by any First Mortgagee[, ]" this boilerplate language alone would not necessarily mean Article VIII is not enforceable by anyone other than First Mortgagees. Regardless, Paragraph Four on the First Page of the Declaration plainly states that the Condominium's "covenants and restrictions" are "enforceable . . . by any person acquiring or owning an interest in said property and improvements, including, without limitations, any Mortgagee[.]" (Pls.' Ex. 1.)

         This Court finds Paragraph Four on the First Page of the Declaration evidences a clear intent that Article VIII of the Declaration is enforceable by the Unit Owners. This Court would have to completely disregard the clear language of the Declaration if it were to adopt the Houzes' argument.

         2 Section 8.1(i) of the Amended Declaration and Unit Owner Approval[20]

         Having found that Article VIII of the Declaration is enforceable by the Unit Owners, the Court must determine whether the consent of 100% of the Unit Owners is required under § 8.1(i)(v) of the Amended Declaration in order to renovate the Common Elements, as well as to do anything relating to the other matters enumerated under § 8.1(i) of the Amended Declaration. The First Amendment to the Declaration amended § 8.1(i) of the Declaration and added an additional clause, which now states:

8.1(i) In addition to all other requirements of this Declaration or the By-Laws, the prior written consent of First Mortgagees holding mortgages on Units entitled to at least fifty-one (51%) percent of the Common Areas and Facilities, and Unit Owners entitled to one hundred (100%) percent of the Common Areas and Facilities of the Condominium shall be required for the following:
(v) any increase in the Annual Assessment by more than ten (10%) percent in any one calendar year period or any additions, alterations, or improvements to the Common Elements costing in excess of One Thousand ($1, 000.00) Dollars.[21] (Pls.' Ex. 2.)

         Aside from adding renovations to the Common Elements to the other enumerated matters which require the Unit Owners' approval under § 8.1(i) of the Declaration, the First Amendment further changed § 8.1(i) of the Declaration from requiring written consent from only "Unit Owners entitled to at least sixty-seven (67%) percent" to "Unit Owners entitled to one hundred (100%) percent[.]"

         The language of the Amended Declaration is clear and unambiguous. In order to make any changes to the Common Elements of the Condominium, along with taking any of the other enumerated actions under § 8.1(i) of the Declaration, 100% of the Unit Owners must agree. This interpretation is also consistent with the intent of the Stengels and the Antons in accordance with the testimony of Mr. and Mrs. Anton and Attorney Bardorf. See Haffenreffer, 994 A.2d at 1233. Therefore, this Court finds § 8.1(i)(v) of the Declaration is enforceable by the Unit Owners and requires 100% approval of the Unit Owners in order to make additions, alterations, or improvements to the Common Areas costing in excess of $ 1, 000.

         3

         The First Amendment's Definition of the Board of Directors

         This Court finds that the Condominium Documents make clear that the Board of Directors consists of two members with equal voting power, providing each Unit Owner with one seat on the Board of Directors. The First Amendment to the Declaration defines the "Board of Directors" as follows:

1.5 'Board of Directors' means those persons who are the owners of Units 9 and 9A and who shall also be the Executive Board of the Association. Notwithstanding any other provision in this Declaration, Rules and Regulations and the By-Laws to the contrary (including without limitation Section 3.2 of the By-Laws), the Board of Directors and Executive Board of the Association shall at all times be comprised of those persons who are the owners of Units 9 and 9A. (Pls.' Ex. 2.)

         Since the Declaration defines a "Unit Owner" or "Owner" as "any person, group of persons, corporation, trust, or other legal entity, or any combination thereof, which holds legal title to a Unit," this two-unit Condominium can only have two members on its Board of Directors. (Pls.' Ex. 1) (emphases added).[22] This is consistent with § 3.2(a) of the By-Laws which clearly states the Board of Directors is "composed of two (2) persons." (Pls.' Ex. 1.) Whether title to either Unit is jointly held by a married couple or held solely by a trust for which a married couple serves as its trustees, there can still only be one designated Owner for Unit 9 and another Owner for Unit 9A that can sit on the Board of Directors. The Antons' decision to have the title to Unit 9A held by a trust is of no material consequence on their degree of control over the Condominium's Board of Directors. To rule otherwise would mean that either Unit could artificially install more members on the Board of Directors-and thereby take control of it-by further splitting their interest in the Unit with other individuals, trusts, or other entities. This interpretation renders a clearly unworkable and absurd result.

         Furthermore, the Condominium Documents clearly require a consensus between both members to act as the Board of Directors. Section 3.2(i) of the By-Laws states in pertinent part: "[a]t all meetings of the Board of Directors, a majority of the Directors shall constitute a quorum for the transaction of business, and the acts of the majority of the Directors present at a meeting at which a quorum is present shall be the acts of the Board of Directors. . . ." Attaining a quorum of a "majority of the Directors" of a two-member board invariably means both members must be present.[23] Similarly, since this provision also requires "the majority of the Directors present at a meeting at which a quorum is present" to take action, the Board can only act when both members agree. In addition, unlike § 2.3 of the By-Laws-stating Unit Owners are "entitled to cast the number of votes for each Unit equal to the Allocated Interest for each Unit" when voting on matters before the Association there is no similar provision indicating that members of the Board of Directors are also entitled to cast the number of votes equal to their Unit's Allocated Interest. It is clear that each member of the Board has one equal vote.[24] Accordingly, it is clear that neither member could unilaterally act on behalf of the Board of Directors without the other member's consent, and it is thus further evident that no member could authorize an act on behalf of the Board without the other member's approval.

         The Condominium Documents as originally drafted had already in effect required the Board of Directors to unanimously agree on taking any action pertaining to the matters before it, by requiring a majority. Section 3.2(d) of the By-Laws broadly states that the Board of Directors is authorized to exercise "the powers and duties necessary for the administration of the affairs of the Association and may do all such acts and things as are not by law or by these By-Laws directed to be exercised and done by the Association[.]" (Emphasis added.) Section 3.1 of the By-Laws indicates that "[t]he Association shall be responsible for the overall policy and administration of the Condominium; but, except as otherwise provided in these By-Laws or by statute, shall act by and through its elected Board of Directors." (Emphasis added.) When § 3.1 and § 3.2(d) of the By-Laws are read in conjunction, it is clear to this Court that the Board of Directors is predominantly responsible for the management of the Condominium's affairs except to the extent the Act requires-or the Condominium Documents delegate-certain matters to be addressed by the Unit Owners as part of the Association. See § 34-36.1-3.03(a).[25]

         4

         The First Amendment Requires Unanimity to Achieve Equal Co-Governance

         When reviewing the First Amendment's effect on the Condominium Documents as originally drafted, it is clear the drafters intended for these amended provisions to provide for an equal co-governance scheme between the Units-not exclusively for matters before the Board of Directors but also for those matters before the Unit Owners as part of the Condominium Association. Section 1.4 of the Declaration defines the Association as a "Rhode Island unincorporated association organized under the Rhode Island Condominium Act, the sole members of which are the Unit Owners acting as a group in accordance with the Declaration." (Pls.' Ex. 1) (emphasis added).[26] The Act requires every condominium to have both a board of directors and an association, but because this Condominium has only two Units, the Board of Directors and the Association consist of the same members-the Owners of Unit 9 and Unit 9A. See, ...


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