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Jepsen v. Camassar

Court of Appeals of Connecticut

May 1, 2018

ANDERS B. JEPSEN ET AL.
v.
BETH M. CAMASSAR ET AL.

          Argued January 5, 2018

         Procedural History

         Action seeking a judgment declaring, inter alia, that a certain modification to a beach deed was null and void, and for other relief, brought to the Superior Court in the judicial district of New London, where the plaintiff Craig Barrila withdrew his complaint and Beth Jepsen was cited in as an additional plaintiff; thereafter, the named plaintiff et al. filed a third amended complaint; subsequently, the matter was tried to the court, Bates, J.; judgment in part for the defendants, from which the named plaintiff et al. appealed to this court; thereafter, the court, Bates J., issued an articulation of its decision; subsequently, the court, Bates J., denied the motion for attorney's fees filed by the named plaintiff et al., and the named plaintiff et al. filed an amended appeal. Reversed in part; judgment directed.

          Beth A. Steele, for the appellants (named plaintiff et al.).

          Mark S. Zamarka, with whom, on the brief, was Edward B. O'Connell, for the appellees (named defendant et al.).

          Christine S. Synodi, for the appellees (defendant Savas S. Synodi et al.).

          Lavine, Sheldon and Elgo, Js.

          OPINION

          ELGO, J.

         The plaintiffs Anders B. Jepsen and Beth Jepsen appeal from the declaratory judgment rendered by the trial court in this dispute regarding the modification of a beach deed. In this opinion, we address the plaintiffs' claims that the court improperly (1) concluded that the modification in question was properly enacted, (2) concluded that they had not met their burden in establishing slander of title, and (3) declined to render an award of attorney's fees in their favor.[1] We agree with the plaintiffs' first claim and, accordingly, affirm in part and reverse in part the judgment of the trial court.

         The relevant facts are gleaned from the court's memorandum of decision and the undisputed evidence in the record before us. The parties are numerous individuals and entities that, at relevant times, owned real property in a subdivision in New London created in 1954 by the Quinnipeag Corporation (subdivision).[2] The subdivision plan filed on the New London land records depicts the location of various residential parcels, as well as a 250 foot strip of beachfront property commonly known as Billard Beach (beach). That area is designated as ‘‘beach rights'' on the subdivision plan.

         Each owner of real property in the subdivision is the holder of two deeds relevant to this dispute: a warranty deed that conveyed ownership rights in fee simple to his or her individual parcel of subdivision property (warranty deed) and a quitclaim deed that conveyed an ‘‘undivided one-forty-eighth (1/48th) interest'' in the beach (beach deed).[3] This litigation concerns a purported modification of the beach deed.

         Section 2 of the beach deed sets forth certain ‘‘restrictions on the use'' of the beach, [4] known also as restrictive covenants. ‘‘A restrictive covenant is a servitude, commonly referred to as a negative easement . . . . A servitude is a legal device that creates a right or an obligation that runs with the land or an interest in land.'' (Citation omitted; internal quotation marks omitted.) Grovenburg v. Rustle Meadow Associates, LLC, 174 Conn.App. 18, 25 n.7, 165 A.3d 193 (2017). As the Restatement (Third) of Property, Servitudes notes, ‘‘[t]he distinctive character of a servitude is its binding effect for and against successors in interest in the property to which the servitude pertains . . . .'' 1 Restatement (Third), Property, Servitudes c.7, introductory note, p. 334 (2000); see also Wykeham Rise, LLC v. Federer, 305 Conn. 448, 468, 52 A.3d 702 (2012) (concluding that ‘‘the burdens of the covenants at issue . . . [could] run with the land'' because ‘‘the covenants were formally created as part of a transfer of land; they explicitly provide that they are ‘binding upon the [g]rantee, its successors and assigns, shall inure to the benefit of the [g]rantor, its successors and assigns, and shall run with the land'; and they appear on their face to relate to the land and not to impose any conceivable burden on the initial grantee independent of its ownership of the land''); Bauby v. Krasow, 107 Conn. 109, 112, 139 A. 508 (1927) (‘‘[i]f [a restrictive covenant] runs with the land, it binds the owner''); Olmstead v. Brush, 27 Conn. 530, 536 (1858) (‘‘if the grantee accepts the deed he assents to the [restrictive covenant] in it''). It is undisputed that all owners of property in the subdivision are bound by the restrictive covenants contained in the beach deed.[5]

         Section 4 of the beach deed expressly provides a mechanism for the modification of the restrictive covenants contained in § 2 of the beach deed. It states: ‘‘That the restrictions on the use of the [beach] contained in [§] 2 hereof may be modified by a majority vote in writing of the owners of the premises conveyed. Each owner, (or in the case of joint ownership or ownership in co-tenancy, such joint owners or owners in co-tenancy together) shall be entitled upon any such vote to such number of votes as the numerator of their fractional interest in the premises conveyed, and upon any such vote, the majority shall be determined according to the sum of the votes so counted.''

         For more than one-half century, owners of property in the subdivision enjoyed the use of the beach without incident. That changed after Craig Barrila moved into the subdivision in 2008. As the court found, ‘‘[i]n 2008, [Barrila] purchased 755 Pequot Avenue, one of the forty-eight residential lots in [the subdivision], and although, as he testified, he did not personally use the beach, he allowed his girlfriend and her three children to swim, hold campfires and party at the beach. . . . Barrila testified that initially no one objected to this conduct. However, he stated that in July, 2011 . . . he received a telephone call from a representative of the [Billard Beach Association (association)][6] stating that these individuals could not use the beach without his being present. . . . Prior to the telephone call to Barrila, testimony and evidence received at trial does not indicate any significant concern being expressed about the use of or conduct on the beach by members of the [subdivision].

         ‘‘In reaction to the use of the beach allowed by Barrila and what was perceived to be a lack of clarity in the deeds and [the association's] bylaws regarding allowable use of the beach, a group of residents including Garon Camassar, [7] an attorney and husband of defendant Beth M. Camassar, in the summer of 2011, began to circulate a petition for a ‘Modification of Covenants and Restrictions re Billard Beach, New London, Connecticut.' This modification (2011 modification)- which all parties now agree is of no force or effect- purported to supersede all covenants and restrictions contained in the [beach deed].'' (Footnotes added.)

         The 2011 modification purported to revise the beach deed in three significant respects. First, it sought to modify the restrictive covenants governing the use of the beach contained in § 2 of the beach deed. Second, it revised the modification provision contained in § 4 of the beach deed to require the approval of 75 percent of owners instead of a simple majority. Third, the 2011 modification added a new section regarding the enforcement of the beach deed, which provided for an award of compensatory damages, punitive damages, costs and attorney's fees.[8]

         After learning of the 2011 modification proposal, Barrila sent an e-mail to approximately fifty e-mail addresses, the subject of which was ‘‘Proposed Changes to Billard Beach Land Deed.'' In that September 24, 2011 e-mail, Barrila indicated that he had been provided a copy of the 2011 modification earlier that day. He then stated that ‘‘there is an effort underway to collect a majority of signatures to support a modification to our current [beach] deed. . . . I have reviewed the proposed document today and have some substantial concerns. . . . I want to reiterate that these are not the beach rules (which are guidelines). These are legally binding and enforceable changes to our current [beach] deed which will impact your future ability to convey your asset. . . . I'm willing to support whatever the majority of my neighbors believe to be fair regarding the rules. However, I want to ensure that appropriate process is followed to effect any proposed changes. . . .''

         The very next day, Ronald E. Beausoleil replied to Barrila by e-mail and offered to meet privately with him and Garon Camassar. Beausoleil at that time was a member of the executive committee of the association[9]and had collected signatures on the 2011 modification with Garon Camassar. Barrila responded to that e-mail hours later, stating that ‘‘[w]ith all due respect the time for private meetings has passed. I'm advocating [for] a public meeting with all interested/impacted parties involved.'' Later that night, Barrila's attorney contacted Garon Camassar, who had drafted the 2011 modification and had solicited signatures thereon. In an e-mail sent on the evening of September 25, 2011, Attorney Michael W. Sheehan reiterated Barrilla's concerns and asked ‘‘that nothing be implemented or recorded on the land records until all owners have been notified and been given the opportunity to meet and be heard.'' Despite that request, no meeting or vote of the owners transpired. Instead, the 2011 modification was filed on the New London land records the next morning.

         On September 27, 2011, defendant Hope H. Firestone, a signatory to the 2011 modification acting in her capacity as president of the association, sent a letter to owners of property within the subdivision on association letterhead. That letter began by stating, ‘‘Good News!! As of Monday morning September 26, 2011, the restrictive provisions of the original beach deed have been modified.'' Firestone then provided an overview of the principal changes contained in the 2011 modification.

         In its memorandum of decision, the court found that ‘‘contrary to the requirements of the beach deed, no formal ‘vote' was ever noticed or taken on the [2011] modification; rather, the circulators assumed that once they had obtained the signatures of a majority of lot owners, the deed was recordable. . . . [A] ‘vote' requires more formality than just obtaining signatures. Black's Law Dictionary 10th Ed. (2009), defines a vote as ‘[t]he expression of one's preferences or opinion in a meeting or election by ballot, show of hands, or other type of communication.' Accordingly, the [2011] modification appears to have been a legal nullity.''[10] No party has challenged the propriety of that determination in this appeal.

         After the 2011 modification was filed on the New London land records, Anders B. Jepsen and Barrila commenced this declaratory action.[11] Their original complaint sought to have the 2011 modification declared null and void. They alleged, inter alia, that the 2011 modification ‘‘was enacted without the knowledge or consent of the plaintiffs''; that it ‘‘was enacted without a full and fair opportunity to have a meaningful discussion between the owners [in the subdivision] and to voice opinion as to the merits of the [m]odification''; and that ‘‘the contents and meaning of the [m]odification was misrepresented to one or more of the signers . . . and to others who were not given an opportunity to review the [m]odification prior to its enactment.''

         As the court found in its memorandum of decision, ‘‘[i]n response to the suit, the parties engaged in prolonged discussions, including mediation, seeking to resolve the issues raised in the legal action, while still trying to respond to the concerns of the [a]ssociation members regarding uncontrolled use of the beach. . . . In the course of these negotiations, the proponents of the modification, working with the Executive Committee of the Association, developed and proposed the ‘Amended and Restated Covenants and Restrictions Regarding Billard Beach, New London, Connecticut' '' (2014 modification).[12] The 2014 modification contained an extensive revision of the restrictive covenants governing the use of the beach.[13] It removed the 75 percent super majority requirement imposed in the 2011 modification proposal, stating in relevant part that the restrictive covenants in the beach deed ‘‘may be modified by a written vote of a majority of the [r]esidential [l]ot [o]wners . . . .''[14] The 2014 modification also eliminated the enforcement provisions set forth in § 7 of the 2011 modification. See footnote 8 of this opinion.

         On October 3, 2014, defendant Anne Marie Lizarralde, who at that time served as the secretary of the association, sentan e-mail to forty-one of the forty-eight owners within the subdivision notifying them that the association's annual meeting would be held on October 10, 2014.[15] In that correspondence, Lizarralde stated: ‘‘Billard Beach Members-The annual [association] meeting has been scheduled for Friday, October 10th at 7 p.m. in the New London Senior Center (120 Broad Street). Please find attached four documents to read carefully. If you are unable to open any of them, please let us know and we'd be happy to put a hard copy in the mail to you. If you are unable to attend, please fill out the proxy and get it back to us as soon as possible so that you are represented. You can either e-mail back the proxy to [Lizarralde] or drop it off at any of the board members' homes. . . .'' (Emphasis in original.)

         Appended to that e-mail were four documents. The first was a copy of the 2014 modification. The second document was titled ‘‘BILLARD BEACH ASSOCIATION BALLOT OR PROXY'' and purportedly permitted owners within the subdivision to vote by proxy on the 2014 modification.[16] The third document, titled ‘‘BILLARD BEACH ASSOCIATION NOTICE OF ANNUAL MEETING, '' was an agenda that set forth five items for business, including the ‘‘vote upon'' the 2014 modification.[17]The fourth and final document was a letter addressed to ‘‘Billard Beach property owner'' from the ‘‘Billard Beach Association Board, '' which provided an overview of the revisions contained in the 2014 modification. That letter indicated that ‘‘[t]his version of the [c]ovenants was conceived and drawn as a final document, not subject to revision . . . .''

         Two days later, on October 5, 2014, Beth Jepsen replied to Lizarralde and all parties copied on Lizarralde's October 3, 2014 e-mail. In that communication, Jepsen stated in relevant part that the plaintiffs ‘‘object to both your improper Annual Meeting notice and to the [2014 modification] contained within it.'' After noting that ‘‘[i]t would take far too long to cover each issue with [respect to] both the ‘notice' provided or the new [2014 modification] in a single e-mail, '' Jepsen stated that ‘‘there are too many issues and much of the legal language may be overly complicated for a . . . late night association meeting with other topics on the agenda.'' She thus requested ‘‘open discussion with the owners . . . over a reasonable amount of time with proper notice . . . in a much more respectful manner going forward.''

         The executive committee of the association held a meeting on the eve of the annual meeting on October 9, 2014. The minutes of that meeting, which were admitted into evidence, indicate that the committee had a ‘‘discussion about the annual meeting that will take place tomorrow, '' at which a vote would be held on the 2014 modification. With respect to that vote, the minutes state that ‘‘[o]nly property owners should be allowed to speak'' and ‘‘[t]he plan will be to leave the vote open after the meeting for several weeks so that it will give those who are unable to attend the time to vote.''

         The association's annual meeting was called to order at 7:04 p.m. on October 10, 2014. The record indicates that the owners of fewer than half of the forty-eight properties in the subdivision attended that meeting.[18]It is undisputed that, prior to the commencement of that meeting, several of the ‘‘ballot or proxy'' forms contained in Lizarralde's October 3, 2014 notice were submitted to the association either electronically or in person that night. The first item of association business discussed during the meeting, which had been designated as item ‘‘b'' on the association's agenda; see footnote 17 of this opinion; was the 2014 modification. As the court noted in its decision, defendant Robert McLaughlin, Jr., who was the president of the association at that time, began the discussion by stating that the executive committee had agreed to hold open the time for collection of the proxy votes until November 1, 2014.

         The court found, and the testimony at trial reflects, that ‘‘[t]he meeting became quite contentious.'' In particular, the court found that, when Beth Jepsen was speaking, some attendees interrupted her and attempted to cut her off. The official minutes of the association meeting, which were admitted into evidence at trial, likewise state that ‘‘[s]everal people made rude comments that, in part, caused [the plaintiffs] to leave.'' Those minutes state that McLaughlin then ‘‘attempted to regroup'' and ‘‘again mentioned that the vote [on the 2014 modification] would remain open until November 1st.'' At that time, defendant Eric Parnes made a motion ‘‘to move on with the rest of the annual meeting agenda, '' which was approved. Other association business then was conducted. Lizarralde and McLaughlin both testified at trial that, at the conclusion of the October 10, 2014 meeting, a majority of owners of the forty-eight properties in the subdivision had not cast votes in favor of the 2014 modification, as required by § 4 of the beach deed.

         The record likewise indicates, and the parties do not dispute, that owners of a majority of the forty-eight properties had not voted in favor of the 2014 modification by the November 1, 2014 deadline announced at the association's October 10, 2014 annual meeting. As the court found, ‘‘[t]wenty-two votes in favor of the [2014] modification-not a majority of all lot owners- were officially received by November 1 . . . .'' The record nonetheless indicates that Lizarralde, on November 6, 2014, sent an e-mail to owners of fewer than thirty properties in the subdivision that stated in relevant part: ‘‘Many thanks to everyone who voted yes to amend the [beach deed]. We received a majority of yes votes and so . . . we now need to have each of you sign the official document that will be notarized. . . .''[19] In her testimony at trial, Lizarralde admitted that, at the time that she sent that e-mail, owners of a majority of the forty-eight properties had not submitted written votes in favor of the 2014 modification.

         Prior to trial, the plaintiffs served a request for production on the defendants, in which they sought, inter alia, ‘‘[c]opies of all proxies submitted in conjunction with the 2014 Deed Modification.'' The defendants complied with that request, and produced copies of twenty-six proxy votes, which were admitted into evidence at trial. A total of twenty-four proxies contain votes in favor of the 2014 modification, less than a majority of the forty-eight properties in the subdivision.[20]

         On December 23, 2014, the 2014 modification was filed on the New London land records. That instrument contained the signatures of owners of twenty-nine properties within the subdivision, [21] including several who did not attend the October 10, 2014 annual meeting and did not at any time submit a proxy vote.[22] The plaintiffs thereafter amended their complaint to challenge the validity of that enactment. Specifically, they sought a declaratory judgment that the 2014 modification ‘‘be declared null and void'' for multiple reasons, including that it ‘‘was enacted without providing proper notice to the owners of the land lots . . . without conducting a properly noticed meeting of the owners, without allowing for ample prior discussion or comment by the owners . . . and without conducting a written vote of the owners. . . .''

         A trial was held over the course of four days in December, 2015. The plaintiffs called nineteen witnesses and submitted sixty documents that were admitted into evidence. The defendants submitted three exhibits, which were duplicative of documents already in evidence, but otherwise presented no documentary or testimonial evidence.[23] At the conclusion of trial, the parties, at the behest of the court, submitted posttrial briefs that outlined their respective positions on the issues presented at trial. In their brief, the plaintiffs argued, among other things, that ‘‘the 2014 modification [is] invalid because it was not properly noticed, [24] did not receive the requisite number of votes and was not executed pursuant to proper procedure.''[25] (Footnote added.) In response, the defendants argued in their posttrial brief that ‘‘[t]he Beach Deed does not require notice, a meeting, or discussion or comment of any kind in order to modify its terms.'' The defendants further claimed that the act of signing the 2014 modification qualified as the written vote of the owners.

         In its memorandum of decision, the court ruled in favor of the defendants on the slander of title counts of the operative complaint, finding that the plaintiffs had not demonstrated the existence of either a false statement, malice on the part of the defendants, or pecuniary loss to the plaintiffs. With respect to the plaintiffs' challenge to the 2011 modification, the court noted that the defendants at trial had conceded that it was ‘‘of no force or effect . . . .'' The court then explained that ‘‘contrary to the requirements of the beach deed, no formal ‘vote' was ever noticed or taken on the [2011] modification; rather, the circulators assumed that once they had obtained the signatures of a majority of lot owners, the deed was recordable.'' The court flatly rejected that proposition, stating that ‘‘a ‘vote' requires more formality than just obtaining signatures.'' The court thus rendered judgment in favor of the plaintiffs on the first count of their complaint, declaring that ‘‘[t]he 2011 modification by agreement of the parties is deemed null and void.''

         With respect to the 2014 modification, the court disagreed with the plaintiffs' claim that the beach deed could not be ‘‘altered without unanimous approval of all owners of the subdivided lots.'' The court also rejected the plaintiffs' claims that both the notice of the vote on the 2014 modification and the vote itself were improper. The court noted that, unlike the enactment of the 2011 modification, ‘‘a formal ‘vote' was noticed and conducted prior to recording'' the 2014 modification. The court emphasized, consistent with the stipulation of the parties; see footnote 3 of this opinion; that the association was a voluntary association that had no authority over owners within the subdivision, and further found that ‘‘the portion of the [October 10, 2014 association] meeting dedicated to the beach use was not considered by any party to be an official meeting of the association.'' Nevertheless, with respect to the ‘‘general standards of due process'' that it deemed applicable to the modification process, the court stated that the association was ‘‘not held to the same ‘due process' standards as a governmental authority'' and concluded that no impropriety transpired with respect thereto.

         Although a majority of owners had not voted in favor of the 2014 modification by the November 1, 2014 deadline, the court found that ‘‘seven more votes in favor, either in the form of proxies or signed documents, were received and accepted in the weeks thereafter, representing twenty-nine of the forty-eight properties-a majority.''[26] The court also found that the plaintiffs waived their right to object to any deficiency in the notice provided by Lizarralde's October 3, 2014 e-mail notice ‘‘as a result of their awareness [of] and participation'' in the meeting. Accordingly, the court rendered judgment in favor of the defendants on the fourth count of the operative complaint, stating that ‘‘[t]he 2014 modification is declared valid and in full force and effect.''[27]

         I

         The principal contention advanced by the plaintiffs is that the 2014 modification was improperly enacted. Specifically, they claim that the court improperly determined that (A) modification of the beach deed did not require the unanimous approval of all owners within the subdivision and (B) the 2014 modification was enacted in accordance with the strictures set forth in the beach deed. We address each claim in turn.

         A

         We first consider the claim that modification of the beach deed requires the unanimous approval of all lot owners within the subdivision. In support of that proposition, the plaintiffs rely on this court's decision in Mannweiler v. LaFlamme, 46 Conn.App. 525, 700 A.2d 57, cert. denied, 243 Conn. 934, 702 A.2d 641 (1997). In Mannweiler, this court held that ‘‘when, as here, the owner of a tract of land sells lots with restrictive covenants . . . and does not retain the right to rescind or amend them and does not provide a method for terminating or amending them, [the owner] has no right to do so without the consent of all the then property (lot) owners.'' (Emphasis added.) Id., 542. Accordingly, when no provision for the modification of a restrictive covenant is contained in the operative instrument filed on the land records, Mannweiler instructs that such modification may only be accomplished through the unanimous approval of all property owners. That precept comports with the position adopted by the Restatement (Third) of Property, Servitudes, which recognizes that ‘‘[a] servitude may be modified . . . by agreement of the parties [or] pursuant to its terms . . . .'' 2 Restatement (Third), supra, § 7.1, p. 337. As a general matter, the Restatement notes that ‘‘[w]here all of the parties interested in a servitude agree, they are free to modify'' the servitude. (Emphasis added.) Id., comment (b), p. 339. The Restatement further indicates that ‘‘[t]he terms of a servitude may include a provision that permits modification . . . without the consent of all the parties. . . . [A] modification . . . pursuant to such a provision is generally effective.'' Id., comment (c), p. 340. Absent such an express provision, ‘‘[a] modification agreed to by some but not all of the parties is not effective . . . .'' Id.; accord 9 Powell on Real Property (M. Wolf ed., 2000) § 60.08, pp. 112-13 (noting that ‘‘absent express provisions to the contrary, amendments may only be effected by all of the owners of property burdened by the covenants'' and observing that ‘‘[c]ovenants can also be modified . . . where the covenants permit modification . . . by a specified percentage of lot owners'').

         It is undisputed that the beach deed in the present case contains a modification provision, which requires the written approval of the owners of a majority of the forty-eight properties in the subdivision to modify ‘‘the restrictions on the use of the [beach]'' set forth in § 2.[28]Because a method for amending the restrictive covenants contained in § 2 is expressly provided for in the beach deed, those covenants properly could be modified by the owners of a majority of the properties in the subdivision. For that reason, the trial court correctly concluded that modification of those restrictive covenants does not require the unanimous approval of owners of all forty-eight properties.[29]

         At the same time, it is undisputed that §§ 7 through 12 of the 2014 modification amended various provisions of the beach deed other than the ‘‘restrictions on use of'' the beach contained in § 2 thereof, including the manner by which the beach deed itself may be modified.[30] Yet the beach deed contains no provision for the modification of anything other than the restrictive covenants regarding ‘‘the use of'' the beach. Because no such provision exists in the beach deed, the modification of anything other than the restrictive covenants contained in § 2 of the beach deed required the unanimous approval of all property owners in the subdivision. Mannweiler v. LaFlamme, supra, 46 Conn.App. 542. The modifications contained in §§ 7 through 12 of the 2014 modification, therefore, are invalid. The court improperly concluded otherwise in its memorandum of decision.

         B

         The plaintiffs also challenge the process by which the 2014 modification was enacted. More specifically, they maintain that the court improperly concluded that adequate notice was provided to the owners of subdivision properties, that a formal vote was properly conducted in accordance with § 4 of the beach deed, and that signatures on the 2014 modification by owners that otherwise did not attend the October 10, 2014 meeting or submit a written vote or proxy nevertheless constituted proper votes, as required by the beach deed.[31]Those claims require us to construe § 4 of the beach deed, which governs the modification of the restrictive covenants at issue.

         ‘‘The principles governing our construction of conveyance instruments are well established. In construing a deed, a court must consider the language and terms of the instrument as a whole. . . . Our basic rule of construction is that recognition will be given to the expressed intention of the parties to a deed or other conveyance, and that it shall, if possible, be so construed as to effectuate the intent of the parties. . . . In arriving at the intent expressed . . . in the language used, however, it is always admissible to consider the situation of the parties and the circumstances connected with the transaction, and every part of the writing should be considered with the help of that evidence. . . . The construction of a deed in order to ascertain the intent expressed in the deed presents a question of law and requires consideration of all its relevant provisions in the light of the surrounding circumstances.''[32] (Internal quotation marks omitted.) Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 510-11, 757 A.2d 1103 (2000).

         In articulating those principles of construction, our Supreme Court has expressly ‘‘adopted the position'' set forth in the Restatement (Third), Property, Servitudes § 4.1.[33] Zhang v. Omnipoint Communications Enterprises, Inc., 272 Conn. 627, 636, 866 A.2d 588 (2005). The commentary to § 4.1 specifically addresses the interpretation of expressly created servitudes, such as those contained in the beach deed. With respect to such expressly created servitudes, the Restatement notes that ‘‘[t]he fact that servitudes are intended to bind successors to interests in the land, as well as the contracting parties, and are generally intended to last for an indefinite period of time, lends increased importance to the writing because it is often the primary source of information available to a prospective purchaser of the land. The language [in a deed] should be interpreted to accord with the meaning an ordinary purchaser would ascribe to it in the context of the parcels of land involved. Searching for a particular meaning adopted by the creating parties is generally inappropriate because the creating parties intended to bind and benefit successors for whom the written record will provide the primary evidence of the servitude's meaning.'' 1 Restatement (Third), supra, § 4.1, comment (d), pp. 499-500; accord Dent v. Lovejoy, 85 Conn.App. 455, 463-64, 857 A.2d 952 (2004) (adhering to that standard of construction), cert. denied, 272 Conn. 912, 866 A.2d 1283 (2005).

         We begin, therefore, with the language of the deed. Section 4 of the beach deed provides: ‘‘That the restrictions on the use of the [beach] contained in [§] 2 hereof may be modified by a majority vote in writing of the owners of the premises conveyed. Each owner, (or in the case of joint ownership or ownership in co-tenancy, such joint owners or owners in co-tenancy together) shall be entitled upon any such vote to such number of votes as the numerator of their fractional interest in the premises conveyed, and upon any such vote, the majority shall be determined according to the sum of the votes so counted.''[34] The first sentence of that section sets forth three requirements for the modification of the restrictions on the use of the beach: (1) there must be ‘‘a majority vote''; (2) that vote must be expressed ‘‘in writing''; and (3) that vote must be among ‘‘the owners'' of the properties in the subdivision.

         The second sentence in § 4 of the beach deed clarifies the nature of ‘‘any such vote'' conducted pursuant thereto. That sentence memorializes the fact that, when a vote on a proposed modification transpires, the property owners in the subdivision are ‘‘entitled upon any such vote'' to cast votes in proportion to their fractional interest in the beach. That sentence then concludes by instructing that ‘‘upon any such vote, the majority shall be determined according to the sum of the votes so counted.''

         In its memorandum of decision, the trial court concluded that the vote contemplated by § 4 of the beach deed ‘‘requires more formality than just obtaining signatures.'' We agree. The plain language of § 4 not only requires a ‘‘majority vote in writing, '' but twice qualifies that imperative with modifiers that are implicated ‘‘upon any such vote.''[35] The plain language of § 4 also mandates that the issue of whether a ‘‘majority'' has been secured in favor of any proposed modification is to be determined in accordance with ‘‘the votes so counted.'' (Emphasis added.) In this regard, we are mindful that every word and phrase of a deed is presumed to have meaning, and must be construed in a manner that does not render it superfluous. Bird Peak Road Assn., Inc. v. Bird Peak Corp., 62 Conn.App. 551, 557, 771 A.2d 260, cert. denied, 256 Conn. 917, 773 A.2d 943 (2001). The use of the plural ‘‘votes'' in the concluding sentence of § 4 to determine whether a ‘‘majority'' has been secured is strong evidence of an intent to establish a two-step modification process. Under the first step of that modification process, which involves a vote ‘‘in writing of the owners of the premises conveyed, '' all owners of a fractional interest in the beach possess the right to participate in any such vote. Pursuant to the plain language of the concluding sentence clause of § 4, ‘‘upon any such vote, '' the ‘‘votes'' of those owners then are ‘‘counted, '' from which it ‘‘shall be determined'' whether owners of a ‘‘majority'' of the properties in the subdivision favor the proposed modification.

         That construction is one which we believe an ordinary purchaser of property in the subdivision would ascribe to it in the context of the parcels of land involved. See Dent v. Lovejoy, supra, 85 Conn.App. 463. In this respect, we note the particular situation of the parties and the circumstances surrounding the enactment of the beach deed. The record reflects that the beach was an integral part of the subdivision when it was created in 1954. Each property is allocated an ‘‘undivided one-forty-eighth (1/48th) interest'' in the beach, as memorialized in the beach deed. The subdivision plan filed on the New London land records describes the beach area as one subject to ‘‘beach rights.'' Moreover, the restrictive covenants contained in the beach deed are uniform covenants enacted by a grant or that divided its property into building lots under a general development scheme. Under Connecticut law, purchasers of those lots are presumed to have ‘‘paid a premium for the property in reliance upon the uniform development plan being carried out.'' Mannweiler v. LaFlamme, supra, 46 Conn.App. 536; see also Leabo v. Leninski, 182 Conn. 611, 615, 438 A.2d 1153 (1981) (noting that beach easements ‘‘enhance the value of the property and that such enhancement was implied by the subdivision's character as a waterfront development''). As the Restatement recognizes, ‘‘the consideration paid for the servitude'' is a proper consideration in the construction of expressly created servitudes. 1 Restatement (Third), supra, § 4.1, comment (d), p. 499. The servitudes at issue in this case secured the right of property owners to ‘‘use and have access to'' the beach. To paraphrase our Supreme Court, those servitudes constitute a ‘‘property right which the parties to the original ...


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