Condo Column: The monkey lost

“We must accept finite disappointment, but never lose infinite hope.” - Martin Luther King, Jr

All too often attorneys only tell others about the cases they win. This column is about one I recently lost.

Years ago, when I was a prosecutor, I tried a case with horrible facts. A young man, a child really, raped someone, assaulted her, slashed her throat, dragged her over a small embankment that bordered a pond, kicked her multiple times, walked away, turned around and, when he saw she was not moving and likely dead, danced to celebrate what he thought he had done. She survived.

I was an Assistant Rockingham County Attorney at the time. After much hard work by the police and a lot of trial preparation by me assisted by many others in the Rockingham County Attorney’s Office the defendant was convicted. He was represented at trial by a very good, very smart, very warm defense attorney, who in a weak moment told me, “A monkey could have won that case.” I responded, “That’s why they gave it to me and not someone else.”

Time passed.

I now practice condominium law, of course, and I recently represented a commercial condominium association in Kingston in a case that a monkey could have won.

The developer constructed two of three commercial buildings and then disappeared for fourteen years before coming back to try and construct the third building. There were two problems with what he wanted to do, I pointed out to the trial court.

First, the language of the Condominium Act notes that a developer has ten years to “substantially complete” all Units. As courts have noted, this standard is so owners will know within a certain period of time whether the project will be completed or whether it is fully the Association’s to do as it wishes with their land. Perhaps put in additional parking or, if a residential condominium association, a pool, clubhouse or other amenity. Otherwise, an association could have to hold its breath for years, decades or generations before an developer decided what, if anything, to do about finishing the project.

How does one know the Units are substantially completed? The Condo Act notes an architect has to certify on the plans that the Units are substantially completed. In English, this means they are completed to the point where they can receive a certificate of occupancy and be used.

There was no such certification in this case. Rather, instead of completed floor plans and a completed site plan, properly signed off on and certified as substantially completed, a site plan simply depicted a third building that would be, “completed at a later date,” in other words not yet built, and certainly not substantially completed.

Second, though he did not have to do so, the developer put language in the Declaration that noted he was not just reserving his right to build, but that he actually would build the remaining units within the required ten years. I other words, he gave his word and then did not keep it.

The trial court agreed.

The developer appealed.

In April the New Hampshire Supreme Court issued its opinion.

The monkey lost.

The Court addressed the language of the Condominium Act that requires substantial completion of a project within ten years of the start of the project, by noting if a plan has a nondetailed building placed on a plan where it might be built anytime in the future, that is enough to notice to all of the owners that a building might someday be constructed, even if there are no floor plans and no certification of an architect.

So, the good news for developers is architect certifications are no longer needed, and there is no more ten year time limit to substantially complete condominium projects. Better yet, nothing has to be substantially completed until a developer decides to finish the project. As I pointed out in the brief, such a ruling would mean a developer could simply put a rectangle on a plan; say it might or might not put a building there at some time in the undefined future; and then could pass down the rights to their children or grandchildren, leaving the owners of the association in a state of limbo forever. That’s now the law.

With regard to the language that the developer said he would actually and definitely build within the ten years, the Court noted it does not matter what a developer puts int he contract to persuade owners to purchase. It only matters what the law says, and they said developers don’t have to start or finish projects for generations. I don’t think this was the intent, but the practical effect of the language is the Supreme Court just noted it was okay for developers to lie to owners and mislead them in order to get them to purchase a condominium unit.

So, the monkey lost what was, from the multiple condominium law attorneys I spoke with, not a close case.

On the other hand, its a good case for developers. A very good case. As the Court noted, developers can lie to induce people to purchase into a condominium association and take their time, perhaps several generations, before deciding to start and then finish a condominium project.

As you can likely tell, I just feel badly for owners in a condominium project who now may never know if a project in their association will be completed. Seemingly, the balance between owners having the right to a finished project and the right of the developers to take ten years to build is over, and the scales are now firmly weighted toward the right of developers to take decades and perhaps generations to complete projects, and to mislead owners about that completion.

Can’t figure out how I lost this one. But then again, I’m just a monkey.

Attorney Robert E. Ducharme is a former teacher whose civil practice is limited to condominium law, primarily in Rockingham and Strafford counties. He can be reached at red@newhampshirecondolaw.com and Ducharme Law, P.L.L.C., found at www.newhampshirecondolaw.com.

This article originally appeared on Portsmouth Herald: Condo Column: The monkey lost