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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-northern judicial district

No. 2015-0514

NEW HAMPSHIRE HOUSING FINANCE AUTHORITY

v.

PINEWOOD ESTATES CONDOMINIUM ASSOCIATION

Argued: May 5, 2016

Opinion Issued: September 20, 2016

Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the 

brief and orally), for the petitioner.

Cronin, Bisson & Zalinsky, P.C., of Manchester (Mark E. Connelly, 

Daniel D. Muller, Jr. and Ashley B. Scott on the brief, and Mr. Muller orally), 

for the respondent.

Gallagher, Callahan & Gartrell, P.C., of Concord (W. John Funk and 

Robert J. Dietel on the brief), for Cooperative Credit Union Association, Inc.;

Mortgage Bankers and Brokers Association of New Hampshire, Inc.; and New 

Hampshire Bankers Association, as amici curiae.
2

BASSETT, J. The petitioner, New Hampshire Housing Finance Authority 

(NHHFA), appeals a decision of the Superior Court (Nicolosi, J.) granting 

summary judgment in favor of the respondent, Pinewood Estates Condominium 

Association (Pinewood), and awarding attorney’s fees to Pinewood. The trial 

court ruled that, pursuant to Pinewood’s condominium declaration, NHHFA 

was responsible for paying condominium assessments that were accrued by 

the previous owner of a unit NHHFA purchased at a foreclosure sale, and that 

Pinewood was not obligated to provide common services to the unit until all 

assessments were paid. Because we conclude that the Condominium Act, RSA 

chapter 356-B (2009 & Supp. 2015), operates to bar Pinewood’s claim for

unpaid pre-foreclosure condominium assessments, we reverse and remand.

The summary judgment record supports the following facts. In 2005, 

Patricia Rugg purchased a unit in Pinewood’s condominium complex in 

Manchester. Rugg granted a mortgage for the unit to a local bank, and the 

bank subsequently assigned the mortgage to NHHFA. Rugg died in May 2011. 

The assessments on Rugg’s condominium went unpaid after her death.

In June 2012, Pinewood sent a letter to Rugg informing her that she 

owed $1,375 in past-due assessments and attorney’s fees. In August, 

Pinewood notified Rugg’s estate and NHHFA, as the first mortgagee, that the 

unit’s common services would be terminated in thirty days unless all the pastdue assessments were paid. See RSA 356-B:46, IX (2009). Neither NHHFA nor 

Rugg’s estate paid the past-due assessments. Subsequently, Pinewood 

terminated the unit’s common services, including water and sewer services.

Rugg’s mortgage payments also went unpaid after her death. In January 

2013, NHHFA filed a Petition for Foreclosure Decree of Sale and to Quiet Title 

in superior court. The court granted the petition, and, in August, NHHFA 

purchased the unit at the foreclosure sale. Shortly thereafter, Pinewood 

notified NHHFA that it owed $4,796.20, including $4,414.75 in assessments 

accrued prior to the foreclosure, as well as post-foreclosure assessments. 

NHHFA paid all of the post-foreclosure assessments, but refused to pay the 

pre-foreclosure assessments.

NHHFA then filed a petition for declaratory judgment in the superior 

court, arguing that: (1) it took title to the unit free and clear of encumbrances, 

including Pinewood’s claim to the pre-foreclosure assessments; and (2) 

Pinewood had no authority to terminate common services to the unit because 

of unpaid assessments accrued prior to the foreclosure. The trial court granted 

summary judgment in favor of Pinewood on both issues. Relying upon Section 

2.3 of the condominium declaration, which provides that “any Owner acquiring 

a Unit shall be liable . . . for any prior and outstanding assessments levied 

against the Unit,” the trial court concluded that NHHFA was responsible for all

past-due assessments. The trial court also concluded that, although NHHFA 

had paid all post-foreclosure assessments, under Section 6.1(c) of the 
3

condominium declaration, Pinewood could “terminate services until all

assessments are paid, which includes the unpaid pre-foreclosure 

assessments.” Because Pinewood “successfully enforced the provisions of the 

Declaration,” the trial court also awarded Pinewood its attorney’s fees and costs

pursuant to RSA 356-B:15, II (Supp. 2015). This appeal followed.

On appeal, NHHFA argues that the trial court erred when it concluded

that NHHFA is liable for the pre-foreclosure assessments. NHHFA contends 

that, pursuant to the Condominium Act and the foreclosure statute, 

Pinewood’s encumbrance on the unit arising out of unpaid pre-foreclosure 

assessments was extinguished by the foreclosure. See RSA 356-B:46 (Supp. 

2015); RSA ch. 479 (2013 & Supp. 2015). NHHFA further contends that, 

because it paid all post-foreclosure assessments, Pinewood cannot lawfully

withhold common services from the unit. Pinewood counters that the trial 

court correctly relied upon the provisions of the declaration to conclude that

Pinewood’s claim for the pre-foreclosure assessments was not affected by the 

foreclosure sale. Pinewood also argues that, because assessments are levied 

against units rather than against individual owners, Pinewood need not restore 

common services until all assessments — both pre- and post-foreclosure — are

paid. Pinewood also filed a cross-appeal.

As a threshold matter, Pinewood argues that NHHFA lacks standing to 

appeal the trial court’s decision regarding the termination of services. “In 

evaluating whether a party has standing to sue, we focus on whether the party 

suffered a legal injury against which the law was designed to protect.” 

Libertarian Party of N.H. v. Sec’y of State, 158 N.H. 194, 195 (2008) (quotation 

omitted). Here, NHHFA has suffered a cognizable legal injury: it cannot 

maintain or use the unit it purchased in foreclosure because Pinewood has 

terminated basic services to the unit — including water and sewer services —

and refuses to restore them until all past-due assessments are paid. 

Accordingly, we conclude that NHHFA has standing.

We next address whether, pursuant to RSA 356-B:46, I(a) and RSA 

479:26 (2013), NHHFA is obligated to pay condominium assessments that 

accrued prior to the foreclosure. Resolving this issue requires us to engage in 

statutory interpretation, and, therefore, our review is de novo. Prof. Fire 

Fighters of N.H. v. N.H. Local Gov’t Ctr., 163 N.H. 613, 614 (2012). In matters 

of statutory interpretation, we are the final arbiter of the intent of the 

legislature as expressed in the words of the statute considered as a whole. 

Olson v. Town of Grafton, 168 N.H. 563, 566 (2016). We first look to the 

language of the statute itself, and, if possible, construe that language according 

to its plain and ordinary meaning. Id. “We interpret legislative intent from the 

statute as written and will not consider what the legislature might have said or 

add language that the legislature did not see fit to include.” Sanborn v. 428 

Lafayette, LLC, 168 N.H. 582, 585 (2016) (quotation omitted). “We interpret 
4

statutory provisions in the context of the overall statutory scheme and not in 

isolation.” Id. (quotation omitted).

The Condominium Act “governs all condominiums and all condominium 

projects.” Neumann v. Village of Winnipesaukee Timeshare Owners’ Assoc., 

147 N.H. 111, 112-13 (2001). It is the enabling statutory authority for the 

condominium form of property ownership in New Hampshire. Cf. Bennett, 

Condominium Homeownership in the United States: A Selected Annotated 

Bibliography of Legal Sources, 103 Law Libr. J. 249, 263 (2011)

(“[C]ondominium ownership is based on statutory authority, not on common 

law concepts.” (quotation omitted)). We recently reaffirmed the principle that 

the terms of a condominium declaration must be interpreted to be consistent 

with the Condominium Act, and, if the terms of a declaration conflict with the 

Act, the Act controls. See Sanborn, 168 N.H. at 586 (explaining that 

“[r]egardless of the provisions of the [condominium] bylaws . . . the bylaws 

cannot negate the applicability” of a controlling statute); cf. 18 Am. Jur. 2d 

Corporations § 16 (2004) (“Where a corporation’s articles of incorporation or 

bylaws conflict with a statute under which the corporation was established, the 

statute controls.”).

The Act enumerates the powers of condominium associations, which 

include the ability to impose and collect assessments from each unit. See RSA 

356-B:45 (2009). Condominium associations rely upon these assessments to 

pay for the operation, maintenance, repair, renovation, and replacement of 

elements of the common areas of the condominium. See Boyack & Foster, 

Muddying the Waterfall: How Ambiguous Liability Statutes Distort Creditor 

Priority in Condominium Foreclosures, 67 Ark. L. Rev. 225, 240 (2014) 

(observing that without assessments, association will “decrease services,

and/or allow the community’s appearance and quality of living to decline”). 

The Act empowers associations to collect unpaid assessments, and establishes

the priority of an association’s claim for unpaid assessments. The Act also 

authorizes a condominium association to terminate common services to a unit 

if assessments go unpaid. RSA 356-B:46, IX provides:

Notwithstanding any law, rule, or provision of the 

condominium declaration, bylaws, or rules to the contrary, the 

unit owners’ association may authorize, pursuant to RSA 356-B, 

its board of directors to, after 30 days’ prior written notice to the 

unit owner and unit owner’s first mortgagee of nonpayment of 

common assessments, terminate the delinquent unit’s common 

privileges and cease supplying a delinquent unit with any and all 

services normally supplied or paid for by the unit owners’ 

association. Any terminated services and privileges shall be 

restored upon payment of all assessments.
5

The Act provides that a lien for condominium assessments is generally 

junior to a first mortgage:

The unit owners’ association shall have a lien on every 

condominium unit for unpaid assessments levied against that 

condominium unit in accordance with the provisions of this 

chapter and all lawful provisions of the condominium instruments, 

if perfected as hereinafter provided. The said lien, once perfected, 

shall be prior to all other liens and encumbrances except (1) real 

estate tax liens on that condominium unit, (2) liens and 

encumbrances recorded prior to the recordation of the declaration, 

and (3) sums unpaid on any first mortgages or first deeds of trust 

encumbering that condominium unit and securing institutional 

lenders.

RSA 356-B:46, I(a) (emphases added). A condominium association may, 

however, gain limited priority over a first mortgage for six months of unpaid 

assessments if the association follows the procedure provided in RSA 356-B:46, 

I(c). If that procedure is not followed, the association’s lien for assessments will 

be junior to the first mortgage. See RSA 356-B:46, I(a). This provision 

encourages associations to promptly act upon unpaid assessments and 

protects first mortgagees by ensuring that no more than six months of unpaid

assessments can receive priority. See Boyack, supra at 283 (observing that 

“modern statutes typically balance lender and association interests” by 

“creat[ing] a limited and capped super-priority-association lien for a certain 

amount of months’ worth of unpaid assessments”). The Act limits associations 

to “one priority lien.” See RSA 356-B:46, I(d). We note that Pinewood did not 

follow the procedure in RSA 356-B:46, I(c) to secure such a priority lien.

New Hampshire law provides for two types of foreclosure proceedings 

pursuant to “a power of sale.” RSA 479:22-:25 (2013 & Supp. 2015). One 

allows mortgagees to foreclose without judicial oversight provided that the 

mortgagee complies with the statute. RSA 479:25 (Supp. 2015). The other 

involves petitioning the court for a judgment of foreclosure. See RSA 479:22-

:24 (2013). Under both methods, upon recording of the deed and affidavit, title 

to the foreclosed premises “shall pass to the purchaser free and clear of all 

interests and encumbrances which do not have priority over such mortgage.” 

RSA 479:26, III (2013); see Restatement (Third) of Property (Mortgages) § 7.1 

cmt. a at 448-49 (1997) (explaining that both “a valid judicial foreclosure” and

a “power of sale (nonjudicial) foreclosure” result in the extinguishing of junior 

interests). This is “a fundamental principle of mortgage law.” Restatement 

(Third) of Property (Mortgages) supra at 448; see Boyack, supra at 286 

(observing that “[s]urvivability of a junior lien is unheard of in foreclosure”).

NHHFA argues that Pinewood’s claim to the debt arising from unpaid 

pre-foreclosure assessments does not have priority over NHHFA’s mortgage
6

interest, and, therefore, that NHHFA owns the unit “free and clear of all 

interests and encumbrances of the association.” (Quotation omitted.) 

Pinewood counters that the priority rules in RSA 356-B:46, I(a) are not 

applicable here because this case involves a “Termination Resolution” under 

RSA 356-B:46, IX, not a statutory lien for unpaid assessments. Pinewood 

asserts that because the termination of services is “a distinct legal right under 

the Condominium Act and Declaration,” it “is not an encumbrance or interest 

in land subject to the priority determinations” of RSA 356-B:46, I. We agree 

with NHHFA.

Pinewood’s argument contradicts the plain language of the Condominium 

Act, and fails to give effect to the specific priority provisions set forth in RSA 

356-B:46, I(a). Although Pinewood is correct that the dispute in this case 

stems from Pinewood’s termination of common services because of unpaid

assessments, rather than from a statutory lien for assessments, Pinewood 

ignores the effect of the termination of services resolution on NHHFA’s 

ownership of the unit. RSA 356-B:46, I(a) explicitly provides that, under 

circumstances such as those here, a lien for assessments is junior to the first 

mortgage, and, RSA 479:26, III provides that a junior lien is extinguished by 

foreclosure. If a termination of services resolution were not subject to these 

priority rules, an association could maintain an encumbrance on the unit after 

foreclosure that — although not a statutory lien — would operate as a lien on 

the unit. See Black’s Law Dictionary 1063 (10th ed. 2014) (defining “lien” as 

“[a] legal right or interest that a creditor has in another’s property, lasting 

usu[ally] until a debt or duty that it secures is satisfied”). Pinewood appears to 

argue that, by terminating common services pursuant to RSA 356-B:46, IX 

rather than filing a lien for unpaid assessments, it can, in effect, create a 

superior lien of an indeterminate amount lasting for an indefinite time. This 

result is plainly not allowed by RSA 356-B:46.

Pinewood’s construction directly contravenes the Act’s explicit limitations 

on an association’s claim for unpaid assessments. An association is limited to 

one priority lien for no more than six months of unpaid assessments. See RSA 

356-B:46, I(c)-(d). Had the legislature intended to allow a termination of 

services resolution to act as a priority lien, it would have included language in 

the statute to that effect. See Sanborn, 168 N.H. at 585 (“We . . . will not 

consider what the legislature might have said or add language that the 

legislature did not see fit to include.” (quotation omitted)). Additionally, the 

priority rules set forth in RSA 356-B:46, I(a) to I(d) of the Act would be 

meaningless if a condominium association could side-step the procedural 

requirements for obtaining priority over a first mortgage holder merely by

terminating services under RSA 356-B:46, IX based upon unpaid assessments. 

Thus, we conclude that Pinewood’s interest — whether a lien in name or in 

operation — is subject to the priority rules in RSA 356-B:46, I(a). Accordingly, 

because RSA 356-B:46, I(a) establishes that Pinewood’s claim for the preforeclosure assessments is junior to NHHFA’s mortgage, and, therefore, is 
7

extinguished by the foreclosure, see RSA 479:26, III, we conclude that NHHFA 

takes title to the unit free and clear of Pinewood’s claim for the pre-foreclosure

assessments.

We next address whether, despite NHHFA’s “free and clear” ownership of 

the unit, see RSA 479:26, III, Pinewood can refuse to restore services until the 

pre-foreclosure assessment debt is paid. RSA 356-B:46, IX provides that if an 

association terminates common services because a unit owner fails to pay 

condominium assessments, “[a]ny terminated services and privileges shall be 

restored upon payment of all assessments.” NHHFA argues that, because the 

foreclosure extinguished Pinewood’s claim against the unit for unpaid preforeclosure assessments, the phrase “all assessments,” under these 

circumstances, refers to only post-foreclosure assessments. Thus, NHHFA 

asserts that, because it has paid all post-foreclosure assessments, Pinewood 

must restore common services immediately. Pinewood counters that it need 

not restore services to the unit until all past-due assessments, including those 

accrued pre-foreclosure, have been paid. We agree with NHHFA.

We note that, although the foreclosure extinguished Pinewood’s claim 

against the post-foreclosure owner — NHHFA — for the pre-foreclosure 

assessments, Rugg’s underlying debt to Pinewood survives. See Cadle Co. v. 

Dejadon, 153 N.H. 376, 379 (2006) (foreclosure extinguishes lien on property, 

but underlying debt obligation survives). As NHHFA correctly observes, the 

fact “[t]hat Ms. Rugg (or her estate) still owes Pinewood money . . . does not 

make [NH]HFA chargeable. . . . Merely knowing of the outstanding assessment 

does not create a duty to pay.” An association can gain priority over a first 

mortgage holder only by following the procedure set forth in RSA 356-B:46, I(c).

Even when this procedure is followed, the Act limits an association to one sixmonth priority lien. See RSA 356-B:46, I(c)-(d). If an association could 

withhold services from the unit post-foreclosure in order to force the postforeclosure owner to ensure that the debt of the previous owner is paid, an 

association would have an ongoing encumbrance on the unit that exceeds that 

authorized by the Act. We therefore conclude that, because NHHFA, as the 

post-foreclosure owner, is not responsible for Rugg’s debt, Pinewood cannot 

continue to withhold services from the unit based upon the pre-foreclosure 

debt.

Pinewood, nonetheless, argues that, pursuant to its declaration and the 

Condominium Act, “the debt for unpaid assessments is . . . one inuring to the 

condominium unit, not the unit owner,” and, therefore, all past-due 

assessments must be paid in order to restore common privileges and services 

to the unit. We disagree. When the Declaration and the Condominium Act

conflict, the Act controls. See Sanborn, 168 N.H. at 586-87. We have 

concluded that the Act does not allow an association to have an ongoing 

encumbrance on a unit after foreclosure. NHHFA cannot have a greater 

obligation to pay past-due condominium assessments under Pinewood’s 
8

declaration than is otherwise allowed by the Act. Accordingly, we conclude 

that the trial court erred when it ruled that Pinewood could withhold common 

services until NHHFA pays the previous owner’s debt.

Our holding today advances the policies underlying the Condominium 

Act. To rule otherwise would create uncertainty for lenders that provide 

mortgage financing to condominium owners. The ability of a condominium 

owner to readily secure mortgage financing is crucial to the viability of the

condominium form of ownership. See Bennett, supra at 262-63 (explaining

how improving access to mortgages for condominiums “allow[s] those who [can]

not afford a single-family dwelling to realize the American dream of 

homeownership”). Lenders make loans based upon their calculations of risk 

and return, and “[p]aramount in that calculation is the priority position of their 

lien.” Boyack, supra at 291. Moreover, because mortgage lenders often sell the 

mortgages they originate, giving the claims of condominium associations for 

unpaid assessments priority over first mortgage holders would negatively 

impact the secondary mortgage market. Id. at 292-93. The Condominium Act 

reflects a careful balancing by the legislature of the interests of condominium 

associations and lenders to ensure that lenders will make secured loans to

condominium purchasers. See id. at 243 (observing that “[a] state’s lienpriority legislation typically reflects its approach to balancing [the] policies” of 

“allocating costs equitably for jointly used property” and “encouraging homemortgage finance”).

Pinewood’s remaining arguments are either not sufficiently developed for 

our review, see State v. Blackmer, 149 N.H. 47, 49 (2003), or respond to 

arguments made by NHHFA that we need not address, see State v. Kardonsky, 

169 N.H. ___, ___ (decided June 14, 2016). Finally, because the trial court 

awarded attorney’s fees and costs pursuant to RSA 356-B:15, II, which allows 

for such an award only to a prevailing party, we reverse the award. See RSA 

356-B:15, II.

Reversed and remanded.

DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.