Centennial Pointe Owners' Ass'n v. Onyeabor, 2009 U.T. App 325 (late fees as liq. damages, constructive notice).

2009 UT App 325

Centennial Pointe Owners' Association; and LEBR Associates, LLC, Plaintiffs, Appellees, and Cross-appellants,
Myriam Onyeabor, Defendant, Appellant, and Cross-appellee.

Case No. 20070851-CA.

Court of Appeals of Utah.
November 13, 2009.
(Not For Official Publication)

  • Constructive notice of future CC&R amendments.  The plaintiff lot owner had

    Members Area.  This resource is available to members.  Join us by subscribing today!

Myriam Onyeabor, Salt Lake City, Appellant and Cross-appellee Pro Se.  Jeffrey L. Silvestrini, Edward T. Vasquez, and George A. Hunt, Salt Lake City, for Appellees and Cross-appellants

Before Judges Bench, Orme, and Davis.


ORME, Judge:

The trial court properly determined that the "Restated Declaration of Covenants, Conditions and Restrictions" (the Restated CC&Rs) were valid and encumbered both lot 1 and lot 2, which are owned by Myriam Onyeabor.[1] The original "Declaration of Covenants, Conditions and Restrictions" (the Original CC&Rs) provided, with our emphasis, as follows:

Except as provided below, the vote of Owners holding at least 67% of the Percentage Interests shall be required to amend this Declaration or the Plat. . . . The foregoing right of amendment shall, however, be subject to the following:
. . . .
(b) Until the Declarant[, Centennial Pointe LLC,] has sold all Lots, Declarant shall have the right unilaterally to amend and supplement this Declaration and the Plat to correct any technical errors or to clarify any provision to more fully express the intent of the Declarant for development and management of the Project.

Centennial Pointe LLC exercised its right under the Original CC&Rs to unilaterally amend certain portions of the Original CC&Rs that created an overlap in the description of the common areas and lots, and recorded the Restated CC&Rs containing such amendments. We conclude that the trial court properly determined that Centennial Pointe was within its rights to unilaterally amend the Original CC&Rs, based on the prescribed amendment procedure contained therein, when the amendments essentially clarified the scope of the common areas and the amendments were made prior to the sale of all the lots. Both the Original CC&Rs and the Restated CC&Rs defined common areas as including parking spaces.[2]As pointed out by Appellees, the Restated CC&Rs merely eliminated ambiguities created by the overlapping definitions of lots, buildings, and common areas in the Original CC&Rs, wherein lots were originally defined based on reference to the plat, which did not show common areas as being part of the lots.

Furthermore, even though Onyeabor purchased lot 1 prior to the Restated CC&Rs becoming effective, lot 1 was clearly subject to the covenants, conditions, and restrictions set forth in the Original CC&Rs, including Centennial Pointe's right to unilaterally amend the Original CC&Rs to correct any technical errors or clarify any ambiguous provisions. Her special warranty deed stated her title was "SUBJECT TO current general taxes, easements, restrictions and rights of way of record." In light of the amendment procedure in the Original CC&Rs, which was correctly followed by Centennial Pointe, the Restated CC&Rs are applicable to lot 1. And given that Onyeabor purchased lot 2 after the Restated CC&Rs were recorded, lot 2 is also clearly subject to the Restated CC&Rs because that warranty deed,[3]although referencing the Original CC&Rs, also expressly provided that her title to lot 2 was subject to restrictions of record.

Contrary to Onyeabor's assertion, the amendments within the Restated CC&Rs did not constitute any sort of transfer in fee simple to the Owners' Association or to Centennial Pointe LLC. Onyeabor still held the same title to her lots as described on the recorded plat, which was referenced in her deeds. The scope of the easements over the common areas within the complex were simply clarified and corrected. As such, the trial court's determination that Onyeabor was required to pay the dues set forth in the Restated CC&Rs for maintenance of the common areas is affirmed. Its dismissal of Onyeabor's counterclaims for quiet title and declaratory judgment, which claims were based on the assertion that the Restated CC&R's were invalid is, therefore, likewise affirmed.

Onyeabor's claim that she lacked notice of the Restated CC&Rs is without legal merit. Onyeabor had constructive notice based on her deeds' general references to restrictions of record. See Utah Code Ann. § 57-3-102(1) (2000); First Am. Title Ins. Co. v. J.B. Ranch, Inc., 966 P.2d 834, 837 (Utah 1998) ("Utah law recognizes [two] types of constructive notice. The first type is evidenced in the Utah Recording Statute, Utah Code Ann. § 57-3-[102](1), which provides that documents and instruments filed with the county recorder pursuant to this statute `impart notice to all persons of their contents.'"). Further, the trial court found that her title report for lot 2 specifically referenced the Restated rather than the Original CC&Rs, which should have called her attention to the fact that two versions of the CC&Rs existed.

We also affirm the trial court's rulings on Onyeabor's claims of trespass and intentional infliction of emotional distress. The trial court correctly concluded that the undisputed facts did not show such egregious conduct as to support the intentional infliction of emotional distress claim, see generally Oman v. Davis Sch. Dist., 2008 UT 70, ¶ 51, 194 P.3d 956 (outlining the requirements of intentional infliction of emotional distress), and did not show any trespass because the common areas could by accessed by all property owners within the development under the Restated CC&Rs, see generally Utah Code Ann. § 76-6-206(2) (2008) (stating the elements of criminal trespass).

Onyeabor's standing argument also lacks merit. Here, LEBR is an aggrieved owner, and the Restated CC&Rs provided that an aggrieved owner, as well as the Owners' Association, could bring suit to enforce payment of dues and other obligations under the Restated CC&Rs. And the stranger to the deed doctrine is inapplicable. See generally Potter v. Chadaz, 1999 UT App 95, ¶ 12, 977 P.2d 533("Utah law prohibits parties from expressly creating an easement in a land transaction for the benefit of a third party who is not involved in the transaction—i.e., a 'stranger to the deed.'"). That an association would be formed to manage the common areas on behalf of the owners of the lots within the complex was clearly anticipated in both the Original and Restated CC&Rs.

Onyeabor's fraud, constructive fraud, and fraudulent nondisclosure claims

Members Area.  This resource is available to members.  Join us by subscribing today!

HOA resources and laws annotated
HOA resources and laws annotated