Malletts Bay Homeowner’s Assoc., Inc. v. Mongeon Bay Properties, Inc., No. S1216-04 CnC
(Norton, J., June 3, 2005)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the
original. The accuracy of the text and the accompanying data included in the Vermont trial court
opinion database is not guaranteed.]



STATE OF VERMONT                                                       SUPERIOR COURT
Chittenden County, ss.:                                            Docket No. S1216-04 CnC



MALLETTS BAY HOMEOWNERS’ ASSOCIATION, INC.

v.

MONGEON BAY PROPERTIES, LLC



                     ENTRY REGARDING DEFENDANT’S REQUEST
                      FOR A TEMPORARY RESTRAINING ORDER
        Defendant Mongeon Bay Properties, LLC seeks injunctive relief from Plaintiff
Malletts Bay Homeowners’ Association, Inc. and putative intervenors, Anthony Sineni
and Michael DiVincenzo. MBP requests a temporary restraining order ceasing the
installation of a septic system in Colchester, Vermont, on the shores of Lake Champlain.
For the following reasons, the court denies MBP’s request.
        The parties and putative interveners have a complex relationship in this case. The
underlying action concerns a partition, whereby Plaintiff aims to divide the Colchester
property it owns as a tenant-in-common with Defendant. Plaintiff is also a lessee in a
ground lease of the property with Defendant as one of the lessors. The lease commenced
on May 1, 1996, and currently grants Plaintiff exclusive use of the property through April
30, 2036. Since entering the lease, Plaintiff bought a 43.75 percent interest in the property
from one of the lessors, which resulted in its tenancy-in-common relationship with
Defendant. Defendant is the successor in interest to the remaining 56.25 percent interest.
        Plaintiff is an association of owners of campground plots on the property. Two of
these owners, the putative interveners, have been involved in installing a septic system,
which is required before building a new home on the property. The current system is
failing and poses serious health and environmental risks. The putative interveners, with
Plaintiff’s help, secured a permit from the Town of Colchester to install the septic system.
Defendant challenged this permit before the Town of Colchester Select Board, arguing
that as a co-owner, Defendant’s approval was required. The Board denied Defendant’s
petition to revoke on May 13, 2005.
        Defendant now argues that the ground lease prohibits the putative interveners from
building a septic system on a portion of “common land” on the property under the lease.
Paragraph 4(f) of the lease states that “Lessor shall have the exclusive right to use the
wooded area easterly of the existing house and camp lots, EXCEPT that Lessee and its
SubLessors shall have the right to walk and hike in the area and to remove vegetation
from the area for purposes of cleaning up the woods.” The septic system is to be installed
on this common land. Defendant also argues that Plaintiff, as a tenant-in-common, has
breached its fiduciary duty to Defendant and effected a disseisin on Defendant by
authorizing the putative interveners to construct the septic system.
        Injunctive relief is an extraordinary remedy not routinely granted unless the right
to relief is clear. Comm. to Save the Bishop’s House v. Med. Hosp. of Vt., 136 Vt. 213,
218 (1978). Courts will issue injunctive relief only if the moving party can demonstrate
immediate and irreparable harm. V.R.C.P. 65(a). Four factors determine whether there is
immediate and irreparable harm: (1) the significance of the threat of irreparable harm to
the plaintiff if the injunction is not granted, (2) the balance between this harm and the
injury that granting the injunction would inflict on the defendant, (3) the probability that
the plaintiff will succeed on the merits, and (4) the public interest. In re J.G. Juvenile, 160
Vt. 250, 255 n.2 (1993). Moreover, equitable relief is not appropriate where there is a
remedy at law. Campbell Inns v. Banholzer, Turnure & Co., 148 Vt. 1, 4 (1987).
        The provision in Paragraph 4(f) of the ground lease does not prevent Plaintiff’s
conduct here. Plaintiff is no longer a mere lessee; it also has rights as a tenant-in-
common. In a sense, Plaintiff is its own landlord. Therefore, the “exclusive right to use”
the Common Area is exclusive to both Plaintiff and Defendant. In assisting the putative
interveners in building the septic system, Plaintiff was wearing its owner’s hat, not its
lessee’s hat. Paragraph 4(f) has no bearing, and Defendant has no right to an injunction
based on that provision.
        With regard to Defendant’s arguments regarding disseisin and fiduciary duties, the
court holds that Plaintiff fail to show a reasonable likelihood of success on the merits or
that significant harm would ensue. Moreover, there are adequate remedies at law, if harm
should result. Therefore, the court denies Defendant’s request for a temporary restraining
order.
        First, in order to show that Plaintiff effected disseisin, Defendant must
demonstrate ouster, which requires a showing that Plaintiff engaged in “such acts of
possession as were not only inconsistent with, but in exclusion of, the continuing rights”
of Defendant. Chandler v. Ricker, 49 Vt. 128, 131 (1876). There is a presumption that the
possession and use of land owned by a tenant-in-common is permissive and amicable.
Ransom v. Bebernitz, 172 Vt. 423, 432 (2001). The “presumption against ouster of a co-
tenant can be overcome only ‘by some overt and notorious act or acts of an unequivocal
character, indicating an assertion of ownership of the entire premises to the exclusion of
the right of the co-tenant.’” Id. (quoting Scott v. Leonard, 119 Vt. 86, 102–03 (1956)).
        Here, installing a septic system on the land is not an act wholly excluding
Defendant from the common land. Rather, it is an act improving the overall value of the
land, as it will resolve likely health and environmental problems that would otherwise
occur. The court does not view this septic system as an “overt and notorious act” or an act
of “unequivocal nature” indicating an assertion of ownership over the common land.
Defendant has failed to overcome the presumption of permissiveness and amicability to
show an ouster and thus has little likelihood of success on the merits with respect to
demonstrating disseisin. Moreover, Defendant has not shown that the improved value of
the land will not outweigh any abstract harm from having a septic system on the common
land.
        With regard to fiduciary duties, co-tenants have fiduciary duties “to protect and
secure the common interest, and neither co-tenant may assume a hostile attitude toward
his other co-tenants.” Cooper v. Cooper, 173 Vt. 1, 8 (2001). As discussed above,
however, Plaintiffs have not acted in a hostile attitude toward Defendant by installing a
septic system. The septic system is necessary to improve the condition of the interest and
it will not result in an ouster of Defendant. Defendant has therefore failed to show that
Plaintiff breached its fiduciary duties as a tenant-in-common or to show how such a
breach, if any, would harm Plaintiff.
        Second, even if Defendant were to show either a disseisin or a breach of fiduciary
duty, Defendant has adequate remedies at law, as through damages to the diminished


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value of the property or through an ejectment proceeding. Such remedies at law render
equitable intervention by the court inappropriate.
                                         ORDER
       For the foregoing reasons, Defendant’s motion for a temporary restraining order is
DENIED.

      Dated at Burlington, Vermont, June 3, 2005.


                                                         _________/s/_______________
                                                           Richard Walsh Norton Judge




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