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                   THE SUPREME COURT OF NEW HAMPSHIRE

                               ___________________________

Hillsborough-southern judicial district
No. 2015-0573


                               THOMAS M. BENOIT & a.

                                           v.

      JOSEPH A. CERASARO, TRUSTEE OF THE JOSEPH A. CERASARO
                      REVOCABLE TRUST & a.

                               Argued: March 8, 2016
                            Opinion Issued: April 19, 2016

       Tarbell & Brodich, P.A., of Concord (David E. LeFevre on the brief and
orally), for the plaintiffs.


       Primmer Piper Eggleston & Cramer PC, of Manchester (Matthew J.
Delude on the brief and orally), for defendants Ronald N. and Rita A. Delude.

      DALIANIS, C.J. The plaintiffs, Thomas M. Benoit and Kathleen A. Nawn-
Benoit, appeal from an order of the Superior Court (Colburn, J.) granting the
summary judgment motion filed by defendants Ronald N. and Rita A. Delude,
and denying the plaintiffs’ cross-motion for summary judgment. We affirm.

I. Facts

      The summary judgment record reflects the following pertinent facts. In
1974, a developer created plans for the Profile Estates Subdivision
(subdivision), a development in Merrimack. The plans, recorded in the
Hillsborough County registry of deeds, created 70 lots and a seven-acre parcel
of “Common Land for Profile Estates, Phases I and II” (Common Land)
(capitalization omitted). The developer also recorded a “Declaration of
Covenants” for the subdivision (Declaration). According to the Declaration, the
developer desired to “create . . . a residential community with permanent open
spaces and other common facilities for the benefit of [that] community.” With
the exception of five lots, all of the lots, including the Common Land, are
subject to the Declaration. The developer included reference to the Declaration
in each deed conveyed to the original purchaser of a lot in the subdivision.

       The Declaration provides that all of the lots subject to it “shall be held,
transferred, sold, conveyed and occupied subject to the covenants, restrictions,
easements, charges and assessments” set forth therein. The Declaration
requires each record owner of the lots subject to it to join the “PROFILE
ESTATES HOMEOWNERS ASSOCIATION” (Association). The Association “is to
be formed by the Owners for the purpose of maintaining and administering the
Common [Land] and facilities thereon, administering and enforcing the
restrictions, and collecting and disbursing the assessments and charges.” The
developer “may retain the legal title” to the Common Land until the developer is
of the opinion that the Association “is able to maintain the same,” but “must
convey legal title to the Association when fifty-one percent (51%) of the Lots
have been sold.” The cost of maintaining the Common Land “shall be borne by
the [d]eveloper or its successors in title until the transfer of said Common
[Land] to the Association and thereafter the cost of maintenance shall be borne
by said Association.”

        Each record owner of the properties subject to the Declaration is given “a
right and easement of enjoyment in and to” the Common Land, “and such
easement shall be appurtenant to and shall pass with the title to every lot.”
The Common Land is “restricted to recreational, conservation and park uses for
all of the Owners” and no structures shall be erected on the Common Land
“except as incident to said uses.”

      The Declaration provides that the restrictions contained in it

      shall run with, and bind the land, and shall inure to the benefit of
      and be enforceable by the Association, or the Owner of any land
      subject to this Declaration, their respective legal representatives,
      heirs, successors, and assigns, for a term of ten (10) years from the
      date this Declaration is recorded, after which time said restrictions
      shall be extended for successive periods of ten (10) years unless an
      instrument signed by the then Owners of two-thirds (2/3) of the
      Lots has been recorded, agreeing to change said restrictions in
      whole or in part.



                                        2
The Declaration further provides that the failure of the Association or any
owner “to enforce any covenant or restriction” contained therein “shall in no
event be deemed a waiver of the right to do so thereafter.”

      All of the lots in the subdivision were subsequently sold, but the
Association was never formed, and the developer retained title to the Common
Land. The developer, however, failed to pay the property taxes and the
Common Land was sold at a tax sale in August 1979 to R. Robert Gaumont,
Jr., who owned and lived in Lot 51 in the subdivision, adjacent to the Common
Land. Gaumont recorded the tax sale deed in September 1981.

      In August 2001, Gaumont sold Lot 51 to the plaintiffs by warranty deed.
The deed to Lot 51 stated that the conveyance was “[s]ubject to and with the
benefit of” the Declaration. On the same date, Gaumont sold the Common
Land to the plaintiffs for less than $100 by quitclaim deed. Since buying the
Common Land, the plaintiffs have paid approximately $40,000 in taxes on it.

      In July 2014, over the objections of several lot owners in the subdivision,
the plaintiffs obtained a variance to build a single-family residence on the
Common Land. In January 2015, the plaintiffs brought a petition against the
residents of the subdivision seeking: (1) a declaratory judgment that the
Declaration is unenforceable; (2) an order that they have acquired title to the
Common Land “free and clear of the Declaration through adverse possession”;
and (3) to the extent that the Declaration is deemed enforceable, an order
requiring the defendants to form the Association, purchase the Common Land
from the plaintiffs “at its fair market value,” and reimburse them for their “out-
of-pocket expenses . . . , including real estate taxes.”

       Two residents, the defendants before us, moved for summary judgment
“on behalf of all” of the defendants on the plaintiffs’ claims, and the plaintiffs
cross-moved for summary judgment on their request for a declaratory
judgment. The trial court granted the defendants’ motion for summary
judgment and denied the plaintiffs’ cross-motion, and concluded that
“[b]ecause the undisputed material facts and the applicable law apply equally
to the [plaintiffs’] claims asserted against all of the other [defendant]-lot
owners, they are likewise entitled to summary judgment.” The court
subsequently denied the plaintiffs’ motion for reconsideration, and this appeal
followed.

II. Standard of Review

       “In reviewing the trial court’s rulings on cross-motions for summary
judgment, we consider the evidence in the light most favorable to each party in
its capacity as the nonmoving party and, if no genuine issue of material fact
exists, we determine whether the moving party is entitled to judgment as a
matter of law.” Bovaird v. N.H. Dep’t of Admin. Servs., 166 N.H. 755, 758


                                         3
(2014) (quotation omitted). “If our review of that evidence discloses no genuine
issue of material fact and if the moving party is entitled to judgment as a
matter of law, then we will affirm the grant of summary judgment.” Id.
(quotation omitted). “We review the trial court’s application of the law to the
facts de novo.” Id. (quotation omitted).

III. Enforceability of the Declaration

       The plaintiffs argue that the trial court erred in ruling that the
Declaration is enforceable. They assert that the tax sale extinguished the
Declaration: (1) under the “tax assessment theory”; (2) because the Association
was never formed and rights under the Declaration never vested; and (3) upon
default of redemption by the Association. The trial court considered, and
rejected, each of these arguments, as do we.

       “Ordinarily, a tax sale does not divest easements charged on the property
sold.” Gowen v. Swain, 90 N.H. 383, 387 (1939) (quotation omitted); see
Marshall v. Burke, 162 N.H. 560, 564 (2011) (holding that a tax sale does not
extinguish prescriptive easements that have ripened into vested property rights
prior to recording of the tax deed); see also Buchholz v. Waterville Estates
Assoc., 156 N.H. 172, 175 (2007) (concluding that condominium covenants
that run with the land survive a tax sale); cf. Burke v. Pierro, 159 N.H. 504,
514-15 (2009) (when 20-year prescriptive period had not run before town
acquired title to the lot, the tax sale created a new title).

      The plaintiffs acknowledge this case law. Nonetheless, relying upon
cases from other jurisdictions, they first argue that, in this case, we should
apply the “tax assessment theory” and conclude that the tax sale extinguished
the easements because “the value of the easements and restrictions has never
been assessed against the dominant estates,” and the Common Land “has
always been assessed at fair market value as a buildable lot.”

      We agree with the trial court that the tax sale did not extinguish the
Declaration as a matter of law. We also agree with the court’s conclusion that,
pursuant to Gowen and Marshall, “[w]hether or not the assessors accurately
assessed the dominant and servient estate[s’] value is immaterial, because it is
presumed that assessors take into account the effect restrictions have on the
valuation of property.” We recognized in Gowen that “[p]resumably assessors
take into account this effect of easements on value in making their appraisals.”
Gowen, 90 N.H. at 387. “[I]f, acting in ignorance of the existence of an
easement, they overvalue the servient estate, the mistake is correctible by
abatement proceedings unless circumstances exist which render abatement
inequitable.” Id. (citation omitted). Thus, “while assessors are presumed to
take account of the impact of easements on the value of properties, the
practical reality is that the actual burden of insuring that this occurs is placed



                                         4
on the property owner through the tax abatement process.” Marshall, 162 N.H.
at 566.

       Second, the plaintiffs argue that the tax sale extinguished the
Declaration because the Association was never formed and rights under the
Declaration never vested. They assert that under the language of the
Declaration, the Declaration was “subject to” the express condition precedent
that title to the property was supposed to be owned by the Association, but
because the owners never elected to form an Association, “[the defendants’]
right to enforce the easements and restrictions had never vested, and the tax
sale extinguished the Declaration.” (Quotation omitted.) The defendants
counter that considering the language of the Declaration as a whole, it “makes
clear that its easements and restrictions vested upon recordation and therefore
survived the tax sale.”

      Under its plain language, the Declaration vested upon being recorded in
the registry of deeds in 1974. The Declaration states that the Common Land
“is and shall be held . . . subject to the covenants, restrictions, easements,
charges and assessments” as set forth therein. Those restrictions “shall run
with, and bind the land, and shall inure to the benefit of and be enforceable by
the Association, or the Owner of any land subject to this Declaration . . . for a
term of ten (10) years from the date this Declaration is recorded, after which
time said restrictions shall be extended for successive periods of ten (10)
years.” (Emphases added.)

        In addition, rejecting the plaintiffs’ argument that the Declaration creates
a condition precedent — the creation of the Association and transfer of legal
title to it — the trial court reasoned that “reading the document as a whole, it is
apparent that the Declaration contemplated the creation of the Association,
and transfer of legal title to it, as events that would occur, if at all, after the
Declaration was recorded.” As the trial court correctly noted, “[i]ndeed the
Declaration anticipates the possibility that less than 51% of the Lots would be
sold, in which case the Developer is not required to transfer legal title to the
Association but would be, however, responsible for” the cost of maintenance of
the Common Land. Moreover, the trial court reasoned, “in the absence of an
Association, lot owners are permitted to enforce the Declaration.”

       We conclude that, read in their entirety, the easements and restrictions
set forth in the Declaration vested upon being recorded in the registry of deeds
and, therefore, the Declaration was not extinguished by the tax sale that took
place five years later.

      Third, the plaintiffs argue that the tax sale extinguished the Declaration
because the defendants, having received actual and constructive notice of the
tax sale, failed to exercise their right of redemption pursuant to RSA 80:32
(2012). However, because as a matter of law the tax sale did not extinguish the


                                         5
Declaration, there were no interests for the defendants to redeem and, thus,
redemption is not applicable. The plaintiffs argue that because the defendants’
rights in the Common Land “are derivative of their ownership of the entire fee
interest in the Property, as opposed to, a mere easement,” “[u]pon default of
redemption, the tax sale extinguished [the defendants’] ownership rights in the
Property, and their corresponding rights under the Declaration were equally
extinguished.” These arguments, however, were not raised in the trial court.
Accordingly, we decline to address them on appeal. See Dukette v. Brazas, 166
N.H. 252, 255 (2014) (explaining that parties generally may not have judicial
review of matters not raised before the trial court).

IV. Laches

      The plaintiffs argue that the Declaration is unenforceable under the
doctrine of laches. They assert that “the facts of this case overwhelming[ly]
support a finding that the [defendants] sat on their rights for more than 35
years” in that they “never sought to use the Property as common land, never
sought to form the Association, and never sought to enforce the Declaration.”

       “Laches is an equitable doctrine that bars litigation when a potential
plaintiff has slept on his rights.” Appeal of Prof’l Fire Fighters of Hudson, 167
N.H. 46, 57 (2014) (quotation omitted). “Laches, unlike limitation, is not a
mere matter of time, but is principally a question of the inequity of permitting
the claim to be enforced — an inequity founded on some change in the
conditions or relations of the parties involved.” Id. (quotation and ellipsis
omitted). “Because it is an equitable doctrine, laches will constitute a bar to
suit only if the delay was unreasonable and prejudicial.” Id. (quotation
omitted). “The trial court has broad discretion in deciding whether the
circumstances justify the application of laches; we will not overturn its decision
unless it is unsupported by the evidence or erroneous as a matter of law.”
Village Green Condo. Ass’n v. Hodges, 167 N.H. 497, 505 (2015).

      Based upon the evidence presented, the trial court found that

      at no time before July of 2014, when the [plaintiffs] received a
      variance for the Common Land, did the [defendants] become aware
      of any misconduct by the [plaintiffs] that would require them to
      exercise and enforce their rights under the Declaration. The
      misconduct necessary to place the [defendants] on notice would
      unavoidably involve activity that was contrary to the restrictions
      and rights set forth in the Declaration. Despite their differences,
      the [plaintiffs’] and [defendants’] affidavits make clear that nothing
      was ever built or developed on the Common Land in violation of the
      Declaration. The evidence shows that the Common Land has
      remained unchanged since the [plaintiffs] purchased it. Although
      the [plaintiffs] alleged that [the Common Land] has never been


                                        6
      used as common land and that only one individual ever received
      permission to use the Common Land to cut firewood, they do not
      affirmatively state that they prohibited other lot owners from
      entering upon and using the Common Land for recreational
      purposes. The closest the [plaintiffs] come to alleging that they
      prohibited others from using [the Common Land] comes in the
      form of a single instance when they called the police after hearing
      what they believed to be people trespassing on the Common Land.

(Citations omitted.) Accordingly, the trial court concluded that the plaintiffs
“have not met their burden of showing that the [defendants] became aware of
the misconduct and then slept on their rights; rather, the undisputed facts
show that the delay was merely a result of the [defendants’] lack of awareness.”

      Based upon our review of the record, we conclude that the trial court’s
findings are supported by the evidence and are not erroneous as a matter of
law. Furthermore, the Declaration itself provides that the failure of the
Association or any owner “to enforce any covenant or restriction” contained
therein “shall in no event be deemed a waiver of the right to do so thereafter.”

       The plaintiffs also argue that the trial court failed to take all reasonable
inferences of fact in their favor, specifically as to Gaumont’s statement in his
affidavit that he bought the Common Land “to ensure it remained undeveloped
common land for the enjoyment of . . . the other residents.” The plaintiffs
assert that the only reasonable inferences that can be drawn from this
statement are that Gaumont “believed the tax sale extinguished the
Declaration,” and that Gaumont “believed the other [r]esidents had no right to
use the [Common Land] after the tax sale.” However, the trial court specifically
addressed this argument when it denied the plaintiffs’ motion for
reconsideration. The trial court correctly stated that the plaintiffs’ argument is
“directly contradicted by . . . Gaumont’s affidavit. Assuming . . . Gaumont’s
subjective beliefs are relevant, he stated in his affidavit that he purchased the
[Common Land] subject to all easements and covenants. Moreover, a
reasonable inference may be drawn from . . . Gaumont’s affidavit that his
purchase was to further ensure the [subdivision] residents’ ability to use the
[Common Land].”

V. Conveyance to the Association

       The plaintiffs argue that the trial court erred when it ordered the
defendants to form the Association and the plaintiffs to convey the property to
the Association for no consideration. They assert that “New Hampshire law is
clear that the nature of the title conveyed through a tax sale is that of fee
simple,” but that “[t]he question of whether or not an easement survives a tax
sale is a wholly different issue than whether or not the title that was conveyed
by the tax sale was in fee simple or that of a defeasible fee by virtue of a


                                         7
covenant to convey.” Thus, according to the plaintiffs, “the affirmative
covenants contained within the Declaration which impose obligations upon
them to maintain and convey the [Common Land], without some corresponding
reciprocal benefit, must have been extinguished by the tax sale.” The trial
court rejected this argument. Taking the plaintiffs’ argument as asserting that
the court “implicitly determined their title to the [Common Land] was a
defeasible fee and not held in fee simple,” the trial court stated that it “made no
such determination.” Rather, it “ordered the [plaintiffs] to transfer the
[Common Land] based on the Declaration’s requirement to convey it after more
than 51% of the [subdivision] properties were sold. Therefore, [the plaintiffs’]
title status was not relevant.”

       In addition, the plaintiffs argue that the trial court’s order constitutes “an
unconstitutional taking without just compensation in violation of Part 1, Article
12 of the New Hampshire Constitution and the Fifth and Fourteenth
Amendments to the Constitution of the United States.” The trial court rejected
this argument, noting that the plaintiffs “did not develop [it] beyond a
conclusory statement and failed to cite any authority for their position.” On
appeal, the plaintiffs have likewise failed to develop this argument sufficiently
for our review and, accordingly, we decline to address it. See Lennartz v. Oak
Point Assocs., 167 N.H. 459, 464 (2015).

VI. Equitable Relief

      The plaintiffs argue that the trial court erred in the exercise of its
equitable powers in failing to craft an equitable remedy. They assert that
“[u]nder the unique circumstances of this case,” fairness requires that, in
addition to ordering that the Association be formed and hold title to the
Common Land, the Common Land should be purchased from them by the
residents of the subdivision at its fair market value and the plaintiffs
reimbursed for all of their out-of-pocket expenses relative to the Common Land,
including real estate taxes.

       We review the trial court’s decision whether to grant equitable relief for
an unsustainable exercise of discretion. Conant v. O’Meara, 167 N.H. 644, 649
(2015). In doing so, we determine “whether the record establishes an objective
basis sufficient to sustain the discretionary judgment made.” State v. Lambert,
147 N.H. 295, 296 (2001). “The court has broad and flexible equitable powers
which allow it to shape and adjust the precise relief to the requirements of the
particular situation.” Chase v. Ameriquest Mortgage Co., 155 N.H. 19, 24
(2007) (quotation omitted). “A court of equity will order to be done that which
in fairness and good conscience ought to be or should have been done. It is the
practice of courts of equity . . . to administer all relief which the nature of the
case and facts demand.” Id. (quotation omitted). The party asserting that a
trial court order is unsustainable “must demonstrate that the ruling was



                                         8
unreasonable or untenable to the prejudice of his case.” Foley v. Wheelock,
157 N.H. 329, 332 (2008).

      The trial court determined that the plaintiffs “are not entitled to the
equitable relief they seek because the Declaration prohibits it.” The
Declaration provides that the cost of maintenance of the Common Land “shall
be borne by the [d]eveloper or its successors in title until the transfer of said
Common [Land] to the Association and thereafter the cost of maintenance shall
be borne by said Association.” As the trial court explained:

      [i]t is undisputed that the [plaintiffs] are the Developer’s successors
      in title and that the Association was never formed. It follows that
      the [plaintiffs] have been, and remain responsible for, the “cost of
      maintenance” of the Common Land until such time as the
      Association is formed. Also, under the terms of the Declaration,
      the [defendants] are not required to purchase the Common Land
      deed from the [plaintiffs]; rather, the [plaintiffs] must “convey legal
      title” to the Association.

        Furthermore, the trial court reasoned that the plaintiffs’ “own conduct
cuts against the equitable relief they seek.” “When equitable as distinguished
from legal relief is sought, equitable as distinguished from legal defenses have
to be considered.” Nashua Hospital v. Gage, 85 N.H. 335, 343 (1932)
(quotation omitted). “The conduct of the plaintiff may disentitle him to relief;
his acquiescence in what he complains of or his delay in seeking relief may of
itself be sufficient to preclude him from obtaining it.” Id. (quotation omitted).

      The undisputed evidence supports that the Declaration was recorded in
the registry of deeds when the plaintiffs purchased both Gaumont’s property
and the Common Land. Therefore, the plaintiffs purchased the Common Land
with constructive notice of the easements and restrictions encumbering it. See
C F Invs. v. Option One Mortgage Corp., 163 N.H. 313, 316 (2012) (explaining
that “properly recorded instruments are deemed to give notice to prospective
purchasers of any outstanding claims against property”). In addition, the trial
court reasoned that

      [m]ore significantly, not only does the [plaintiffs’] deed for . . .
      Gaumont’s property . . . specifically reference the Declaration, the
      [plaintiffs] also purchased the seven-acre Common Land by way of
      quitclaim deed for less than $100. Such a small cost for such a
      large piece of real estate should have alerted the [plaintiffs] to the
      restrictions and easements placed on the Common Land. Despite
      knowledge of the Declaration, the plaintiffs paid taxes on the
      Common Land for thirteen years without complaint. Only after
      seeking a variance to build on the property, to which several lot



                                        9
      owners protested, did they seek to quiet title to the Common Land
      or equitable relief in the form of compensation.

         “[O]ur task is not to determine whether we would have found differently
. . . .” In re Adam M., 148 N.H. 83, 84 (2002). Our only function on review is
to determine whether a reasonable person could have reached the same
decision as the trial court on the basis of the evidence before it. See id. We
conclude that the record establishes an objective basis sufficient to sustain the
discretionary judgment made. See Lambert, 147 N.H. at 296. Accordingly, the
plaintiffs have failed to establish that the court’s order constitutes an
unsustainable exercise of discretion.

VII. Tax Abatement

       The plaintiffs argue that the trial court erred when it concluded that they
should have obtained a tax abatement when “there was a complete absence of
evidence or argument submitted to the trial court that the [plaintiffs] would, in
fact, have been entitled to a tax abatement.” We disagree with the plaintiffs’
characterization of the trial court’s order. The trial court did not conclude that
the plaintiffs should have obtained a tax abatement. The plaintiffs argued that
the tax sale extinguished the Declaration because the value of the easements
and covenants were neither subtracted from the Common Land nor assessed
as part of the dominant estates of the residents of the subdivision. In
addressing this argument, the trial court simply noted that New Hampshire law
is that any mistake on the part of the assessors in overvaluing the servient
estate is correctable by abatement proceedings, “unless circumstances exist
which render abatement proceedings inequitable.” (Quotation omitted.)
Assuming without deciding that the Common Land was overvalued and the
assessors failed to take into account restrictions encumbering it, the trial court
found that the plaintiffs knew of the easements and covenants because they
were recorded and cited in the plaintiffs’ deed to lot 51. The court also found
that the plaintiffs knew or should have known that the Common Land was
subject to the easements and covenants because they purchased it for less
than $100 by a quitclaim deed. Therefore, the trial court concluded that “it is
beyond dispute that these circumstances are not such that would render
abatement proceedings . . . inequitable.” Indeed, the trial court underscored in
its order denying the plaintiffs’ motion for reconsideration that their “actual
success in abatement proceedings is irrelevant to the Court’s decision. After
concluding that the Declaration was not extinguished by the tax sale, the Court
merely noted that the proper avenue to address an overvaluation of property
burdened by covenants is a tax abatement.”

                                                  Affirmed.

      HICKS, CONBOY, LYNN, and BASSETT, JJ., concurred.



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