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Alexander et al. v. Fairway Villas et al.
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MAINE SUPREME JUDICIAL COURT							Reporter of Decisions
Decision:	1998 ME 226 
Docket:	Cum-97-396	
Argued: 	February 2, 1998
Decided:	October 2, 1998


Panel:	WATHEN, C.J., and ROBERTS{*}, CLIFFORD, RUDMAN, DANA, LIPEZ{**}, 
	and SAUFLEY, JJ.

JOHN J. ALEXANDER, JR. et al.

v.

FAIRWAY VILLAS, INC., et al.

v.

THE WOODLANDS HOMEOWNERS ASSOCIATION

RUDMAN, J.

	[¶1]  Golf Development Corp. (GDC),{1} the developer of "The
Woodlands," a residential subdivision in Falmouth, appeals from the
judgment of the Superior Court (Cumberland County, Mills, J.) declaring that
GDC is not entitled to use the subdivision's roadways for access to and
development of an adjacent parcel of land.  We disagree and vacate the
judgment.

I.  Background

	[¶2]  In 1986 and 1987, GDC purchased a large parcel of real estate in
Falmouth and developed the larger northern portion into "The Woodlands,"
a subdivision consisting of ninety-five residential house lots, a private
roadway system, and a private golf club known as "The Woodlands Club."  A
smaller southern portion of the original parcel, known as "the Commercial
Zone," remains undeveloped and is presently accessible only through the
private roadway system of The Woodlands. 
	[¶3]  GDC established The Woodlands by recording a subdivision plan
and a document entitled "A Declaration of Common Easements,
Restrictions, Covenants and Reservations of Rights Affecting the Subdivision
Called The Woodlands" (Declaration).  The Declaration, by its terms, was "to
be incorporated by reference hereto in each deed conveying any interest in
property in the Subdivision[.]"  Pursuant to the Declaration, GDC was to
create a "Common Space" within the subdivision, consisting of the private
roadway system, storm water control facilities, a golf course and driving
range, and other common use improvements.  The Declaration further
provided that, following the sale of 75% of the house lots, GDC was to deed
the Common Space to the Woodlands Homeowners Association
(Association), a nonprofit corporation, whose members are all subdivision lot
owners.  The Association is charged with administering and enforcing the
Declaration's provisions.{2}  Finally, the Declaration provided that GDC's
conveyance of the Common Space to the Association was to be "subject to
those encumbrances specified herein."   
	[¶4]  GDC began to sell lots in the subdivision in 1987.  Each lot
owner's deed conveyed an individual lot and expressly provided that the
conveyance was made subject to the provisions of the Declaration.  In 1993,
after selling 75% of the house lots, GDC conveyed the Common Space,
including the roadways, to the Association in a deed containing the following
reservation:

	EXCEPTING AND RESERVING, to the Grantor, for itself
and its successors and assigns, the right to use all roads and
rights­p;of­p;way and emergency access ways as depicted or
referenced on the Subdivision Plan or described in the
Declaration for any future development and for the use,
maintenance and enjoyment of or relating to [the Commercial
Zone] . . . .  The Rights reserved by Grantor in this paragraph in
and to such roads, rights­p;of­p;way and emergency access ways
shall specifically include the right, and Grantor is hereby
permitted, to reassign and/or grant to others, the right to use
any such roads, rights­p;of­p;way and emergency access ways.

	[¶5]  In May 1995, the owners of four lots in the subdivision filed a
four-count complaint for declaratory relief pursuant to 14 M.R.S.A.
§§ 5951-5963 (1980) to establish their rights with respect to the
subdivision roadways and to establish that GDC is not entitled to use those
roadways for access to or development of the Commercial Zone.{3}  Shortly
after the lot owners filed their complaint, GDC moved to compel joinder of,
inter alia, the Association as a necessary party pursuant to M.R. Civ. P. 19(a). 
The lot owners responded by moving to amend their complaint to narrow
their requested relief to a declaration concerning GDC's rights relative to
the roadways.  This specific declaration, they argued, would eliminate the
need for any joinder because it would have "no bearing on the property
interests of any person or organization not now a party[.]"  In April 1996,
the court granted the lot owners leave to amend their complaint and denied
GDC's motion to compel joinder.{4}
	[¶6]  Upon the parties' cross motions for summary judgment, the
court granted judgment to the lot owners with respect to counts I, II, and
IV of their complaint, ruling, inter alia: (1) that "[t]he Declaration does not
reserve to [GDC] or its successors or assigns the right to use the roads for
future development of the Commercial Zone"; and (2) that "[t]he Deed from
[GDC] to the Association is declared invalid to the extent that it purports to
reserve the above-listed rights to [GDC]."  The court did not reach the
breach of fiduciary duty claim at that time.
	[¶7]  GDC then filed a third-party complaint against the Association,
seeking declaratory relief that GDC had a right to use the roadways by virtue
of an easement by necessity, an easement by implication, an easement from
recorded plan, and a cost-sharing and joint-use agreement concerning the
roadways entered into by the Association and the Fairway Villas Owners
Association.  GDC also moved to amend its third-party complaint to join
additional parties and add several counts.  The lot owners responded by
moving to dismiss count III of their original complaint and moving to
dismiss GDC's third-party complaint.  The Association, as third party
defendant, also moved to dismiss GDC's third-party complaint.  The court
denied GDC's motion to amend and dismissed count III and the third-party
complaint.  Hence, the only claim adjudicated was the individual lot owners'
request for a declaration that GDC was precluded by the Declaration from
using the roads to develop and access the Commercial Zone.   This appeal
followed.

II.  The Lot Owners' Rights

	[¶8]  The lot owners base their entitlement to seek relief in this case
on two sources.  First, the purchasers of lots in a subdivision obtain an
easement by implication in the common roads.  See Chase v. Eastman, 563
A.2d 1099, 1101 n.2 (1989).{5}  Second, the incorporation of the Declaration
into the lot owners' deeds created enforceable contractual rights between
the lot owners and GDC.  See DeWolf v. Usher Cove Corp., 721 F. Supp.
1518, 1527 (D. R.I. 1989) (The general rules governing construction of such
Declarations are essentially the same as those applicable to any contract.).  
That contract bound both parties and expressly required GDC to transfer the
Common Spaces to the Homeowners Association "following the sale of
Seventy-Five Percent (75%) of the lots in the subdivision subject to those
encumbrances specified [in the Declaration]."
	[¶9]  Accordingly, the lot owners may seek to enjoin GDC's use of the
roads to the extent that: (1) the proposed use unreasonably interferes with
their own easement (whether created by the contract or by common law); or
(2) the proposed use conflicts with the Declaration.  The lot owners did not
assert that the use intended by GDC would unreasonably interfere with their
own use of the roads.{6}  Rather, they argued that GDC promised to deed the
roads to the Association unencumbered by any remaining interest in GDC.  
	[¶10]  GDC argues that, notwithstanding its agreement to transfer the
Common Spaces to the Association, it retained the right as fee owner of the
roads to transfer the roads under whatever terms and conditions it chose.{7}  
The Declaration, however, bound GDC to undertake the transactions
promised therein.  Although GDC remained the fee owner, that ownership
became encumbered by the terms and conditions of the Declaration upon
sale of the lots.  The Declaration, incorporated in the deeds and constituting
part of the lot owners' bargain with GDC, is subject to the rules of
interpretation of any contract.{8}  Upon incorporation into the purchasers'
deeds, the Declaration's terms became binding upon the grantor-developer
as well as the purchasers and their heirs and assigns.  GDC did not remain
free to dispose of the Common Spaces except as consistent with the
Declaration.  We therefore turn to the language of the Declaration.

III.  The Declaration

	[¶11]  As a contract, the Declaration must be interpreted to effect the
parties' intentions as reflected in the written instrument, construed with
regard for the subject matter, motive, and purpose of the agreement, as well
as the object to be accomplished.  See Bumila v. Keiser Homes of Maine,
Inc., 1997 ME 139, ¶ 12, 696 A.2d 1091, 1094.  It must be interpreted as a
whole.  See Bartley v. Eastern Maine Med. Ctr., 617 A.2d 1020, 1022 (Me.
1992); Benedix v. Boston Old Colony Ins. Co., 417 A.2d 453, 455 (Me. 1980);
Forbes v. Wells Beach Casino, Inc., 307 A.2d 210, 216 (Me. 1973).  The issue
presented here is whether GDC contracted to fully relinquish its rights to
use the roads within the Woodlands Subdivision to the Association, thereby
precluding it from reserving any right to use the roads when it deeded the
common space to the Association.  Although each of the parties agreed that
the Declaration could be interpreted by the court without reference to
extrinsic facts, both parties submitted affidavits and depositions on the
question of intent.  The court, however, agreed with the parties that
extrinsic evidence was not necessary to its interpretation of the contract. 
Because the trial court interpreted the contract from the language of the
document alone, we review the court's interpretation de novo.  See Maine
State Employees Ass'n v. State Dep't of Corrections, 593 A.2d 650, 653 (Me.
1991).  Although it could be argued that some provisions of the Declaration
may be read to create an ambiguity as to the developer's original intent, both
parties urged the court to construe the Declaration without relying on
extrinsic evidence.  Since the parties consider the issue a question of law,
we are not required to show the trial court's decision any particular
deference.  We are satisfied that the Declaration and Plan read in their
entirety make it abundantly clear that GDC retained the right to use the
roadways to develop and access the Commercial Zone.
	[¶12]  The Declaration does not explicitly state that GDC reserves the
right to use the Woodland Subdivision roads to develop the Commercial
Zone.  We note, however, that GDC owned the road system until it conveyed
the roadways and other common space to the Association.  Further, we
conclude that several terms of the Declaration unequivocally confirm the
parties' intent that GDC retained the right to use the roads for future
development.  Those terms include the repeated references to the intended
future development of the Commercial Zone, the reservation to GDC of a
right to move certain roads at or near the entrance to the Commercial Zone,
the reference to easements "shown on the Plan" along with the expressed
right for GDC to use and modify those easements in furtherance of the
development, the reservation to GDC of the rights incident to Association
membership inclusive of use of the roads, and the reservation to GDC of the
ability to assign its rights to other entities.
	[¶13]  The Declaration then reiterates the express notice of GDC's
intention to complete the development of the Commercial Zone.  In
contemplation of the eventual transfer of the Common Space to the
Association, the Declaration provides that "[f]ollowing sale of at least
seventy-five (75%) percent of such lots [GDC] shall be entitled to all rights
and obligations of members of the Association . . . ."  (Art. VII(2)).{9}  It
describes those rights as follows:  "Each member of the Association shall
have the right to use such Common Space in common with the other
members, subject to those restrictions and encumbrances herein . . . ."
(Art. II(1)). The Declaration also reserves to GDC the right to relocate
portions of three roads within the Woodlands Subdivision which lead into
the Commercial Zone.  Id.  The Declaration explicitly references the
Commercial Zone as being denoted on the Plan, and the Plan incorporates
the Commercial Zone.
	[¶14]  In contemplation of further development, the Declaration then
reserves to GDC the right to assign "any or all of its rights" and, at GDC's
option, such assigns shall become members of the Association.  (Art. III(4)). 
As members of the Association, GDC's assigns shall retain all rights
"incident to membership in the Association, including without limitation,
connections with and use of utilities and use of roadways and easements." 
(Art. VII(1)(B)).
	[¶15]  Each of these provisions is indicative of an intent on the part of
the parties to allow GDC to reserve a right to use the Woodlands Subdivision
roads as access to the Commercial Zone.  This interpretation is further
supported by the Plan's depiction of the Woodlands roads' entry into the
Commercial Zone and the absence of other meaningful access to that land on
the Plan.  Had GDC not intended to use the roads in question in connection
with its development of the "Commercial Zone," much of the language
contained in the Declaration as to the "Commercial Zone" would be not only
superfluous but meaningless.  The roads in question pass through GDC's
land.  The Declaration in no way restricts access to those roads.
	[¶16]  The developer retains title to the commercial zone.  The
development plan depicts the roads as entering the commercial zone in two
specific locations and passing through the zone in another location.  The
Declaration, subject to which the lot owners took title, specifically reserved
to the developer the right to relocate the roads within the commercial zone,
thus giving the commercial zone access to the road system within the
development.  The summary judgment in favor of the lot owners must be
vacated and the matter remanded for entry of a declaratory judgment in
favor of GDC.
	The entry is:
Judgment vacated.  Remanded for the entry of
a declaratory judgment in favor of Golf
Development Corp.
Attorneys for plaintiffs:

Arnold Macdonald, Esq., (orally) 
George F. Burns, Esq.
Burns Ray & Delano
P O Box 7486
Portland, ME 04112

Attorneys for defendants:

Ralph I. Lancaster, Esq., (orally)
Peter W. Culley, Esq.
Christopher T. Roach, Esq.
Pierce Atwood
1 Monument Square
Portland, ME 04101-1110
(for Fairway Villas, Inc., Golf Development Corp., et al.)

Paul R. Johnson, Esq., (orally)
Harrison L. Richardson, Esq.
Richardson, Whitman, Large & Badger, P.C.
P O boc 9545
Portland, ME 04112-9545
(for The Woodlands Homeowners Ass'n)