NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal 

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2016 VT 64

No. 2015-268

Mongeon Bay Properties, LLC Supreme Court

On Appeal from

 v. Superior Court, Chittenden Unit,

Civil Division

Mallets Bay Homeowner’s Association, Anthony J. Sineni 

and Merrimack Mortgage Company

March Term, 2016

Dennis R. Pearson, J.

David H. Greenberg, Burlington, for Plaintiff-Appellant.

David D. Aman of Heilmann, Ekman, Cooley & Gagnon, Inc., Burlington, for 

 Defendant-Appellee Malletts Bay Homeowner’s Association, Inc. 

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

¶ 1. ROBINSON, J. This case calls upon us to determine whether, and under what 

circumstances, a court may decline on equitable grounds to enforce a provision in a long-term 

ground lease giving the lessor the right to terminate the lease and reenter the premises in the 

event of a default. Plaintiff Mongeon Bay Properties, LLC (MBP) sued defendant Mallets Bay 

Homeowner’s Association seeking to void a multi-year ground lease for property abutting Lake 

Champlain on account of alleged breaches of the covenants in that agreement.

1

 After a bench 

trial, the trial court concluded that the Association had violated its obligations under the lease by 

failing to reasonably maintain the embankments abutting Lake Champlain to protect them from 

 

1 MBP also sued one individual camp owner, Anthony J. Sineni, III, and a mortgagor

with an interest in that camp. The trial court dismissed MBP’s claims, as well as various cross 

claims and counterclaims involving Sineni, and we do not consider them on appeal.
2

erosion. However, the court declined to enforce the forfeiture clause in the lease against the 

Association, and awarded MBP damages to enable it to undertake the necessary restoration and 

bank protection. The Association appeals the trial court’s ruling that it breached the lease, and 

MBP appeals the trial court’s award of damages in lieu of forfeiture. We affirm the trial court’s 

determination that the Association breached the lease, but reverse its refusals to declare 

termination of the lease and to issue a writ of possession to MBP. We remand for 

reconsideration of MBP’s remedy.

¶ 2. The trial court made the following findings. There are over twenty-five camps 

within the Association, ten of which are situated immediately on the shore of Lake Champlain at 

the eastern edge of Malletts Bay, all perched above a twenty to twenty-five foot embankment, on 

a strip of land just west of East Lakeshore Drive in Colchester. The Mongeon family owned the 

entire land parcel on which these camps were built, and built many of the camp structures. Over 

time, what had been camp rentals became seasonal residences owned by camp occupants, 

although the underlying land continued to be owned by the Mongeon family.

¶ 3. In October 1995, members of the Mongeon family set up a partnership to own the 

land under the camps, and the partnership entered into a ground lease with the Association. That 

lease encompassed the entire parcel on which all of the subject camps were located, and provided 

that the Association would pay $28,000 per year for the first year, and then annual increases 

calculated by adding any increase in property tax applicable to the parcel and an annual increase 

based on the consumer price index. That twenty-five year lease was set to expire in April 2021.

¶ 4. In December 2002, the parties extended the ground lease, adding fifteen years to 

the term so that it would expire in 2036. There have been some changes to the Mongeon family 

side of this ground lease, and MBP is now the 100% owner of the underlying land and is the sole 

lessor in the ground lease. This lease is between MBP and the Association; there are not 

individual leases between MBP and any camp owners within the Association. 
3

¶ 5. The annual lease payment was intentionally set at what might be considered 

below-market”’ rates to allow camp owners to maintain their individual properties, as well as the 

land and overall grounds. Most recently, the monthly Association payment by each camp owner, 

to cover the annual ground rent plus insurance and other expenses, was $290 per month. The 

Association is current with all required lease payments. 

¶ 6. Among other things, the lease provides:

 In no event shall the Lessee do or permit any act or thing which 

might (1) impair the value or usefulness of the Land or any part 

thereof, or (ii) constitute a public or private nuisance or violation 

of law. . .

 The Lessee at its expense will keep the Land and premises in 

good and clean order and condition and will make all necessary or 

appropriate steps to keep them in good condition. The Lessee shall 

not permit the land to be overloaded, damaged, stripped, or 

defaced, nor suffer any waste.

 The lessee will protect, indemnify and save harmless the Lessor 

from and against all liabilities, obligations, claims, damages, 

penalties, causes of action, costs and expenses . . . imposed upon or 

incurred by or asserted against Lessor or against the Land by 

reason of the occurrence or existence of any of the following . . . 

(d) any failure on the part of the Lessee to perform or comply with 

the terms of this Lease. 

At the end of the lease term, the Association is required to surrender the land “in good order and 

condition.” 

¶ 7. The lease includes as an “Event of Default” the following: 

[I]f the Lessee shall fail to perform or comply with any terms of 

this Lease . . . and such failure shall continue for more than 45 

days after the Lessee receives notice or [has] knowledge of such 

failure. . . .

With respect to remedies for default, the lease states:

 [I]n the event that an Event of Default shall have occurred, [and] 

upon issuance of a writ of possession, the rights of the Lessee . . . 

shall immediately cease and become void. 

 If any event of Default shall have occurred and be continuing, 

whether or not the term of this lease shall have been terminated 

pursuant to the Lease, the Lessor may enter upon and repossess the 
4

Land or any part thereof pursuant to Vermont law. If any Event of 

Default occurs, Lessee shall be responsible for all of Lessor’s 

attorney’s fees and costs of litigation. 

¶ 8. In the spring of 2011, the surface level of Lake Champlain reached its highestever recorded level, causing widespread damage along the eastern lakefront including Malletts 

Bay. Below the ten camps situated on the edge of Lake Champlain, there is a significant slope 

running down to the water’s edge, and the then-existing seawall protection was spotty at best. 

The area below the ten camps was significantly impacted by the spring flooding. The injury to 

and impact on the land owned by MBP as a result of this flooding was likely greater than it 

would have been, even from the unusual confluence of otherwise natural events, because of the 

lack of adequate seawall protection at the foot of the embankment area, lack of appropriate bank 

stabilization, and inadequate vegetation and other erosion control measures on the bank itself. 

The ongoing erosion problems along the affected embankment were and are preventable by 

reasonable and ordinarily required repairs and upkeep that the Association was obligated to 

perform under the ground lease terms. 

¶ 9. The land around the camp at 937 East Lakeshore Drive was particularly damaged, 

and the pre-existing stairway down to the lake located by that camp was in danger of immediate 

collapse. The lease expressly requires the Association to maintain the stairway. After the 

individual camp owner and the Association collectively failed to address the issue in the summer 

of 2011, the Town of Colchester began to have more serious discussions with the camp owner 

about stabilizing the bank by his house. 

¶ 10. In September 2011, MBP through counsel sent the Association a notice of default 

under the ground lease. The letter cited the Association’s “failure to maintain the retaining walls 

on [the] waterfront, undermining camps and creating hazard of collapse and bodily injury and 

causing a diminution in the value of the property.”

2

 In this letter, MBP gave the Association 

 

2 MBP’s letter identified several other claimed defaults. Because the trial court rejected 

these other defaults as minimal, if proven at all, we do not recount them here.
5

forty-five days to cure the defects. In December 2011, after the parties and counsel had met to 

discuss the matter, the Association by letter denied that any default existed. It took no steps to 

remedy the situation within forty-five days of MBP’s notice of default. 

¶ 11. In the meantime, the Town issued the owner of the camp at 937 East Lakeshore 

Drive a notice of violation of Town ordinances alleging that his structure was “unsafe and 

constitutes a potential hazard” because the rear porch had lost part of its foundation and was 

partially detached from the structure. The Association was alerted to this. Neither the camp 

owner nor the Association took any action within thirty days of the Town’s notice of violation. 

¶ 12. MBP then filed this suit against the Association in January 2012 seeking damages 

and a declaration that the ground lease is void and forfeited because of the Association’s 

violations. 

¶ 13. For most of the time since the inception of the lease, and until the latest events 

regarding the severe bank erosion in the spring of 2011, the Association, and its directors and 

officers, as well as apparently most camp owners, who are also Association members, have taken 

the position that each individual camp owner is solely responsible for all repairs to and 

maintenance of that owner’s structure, including adjacent grounds and more particularly the 

embankment alongside the ten camps fronting the lake on the west side of East Lakeshore Drive. 

This “understanding” was almost universally held within the Association, despite the clear 

obligations the ground lease imposes on the Association collectively, and not on individual camp 

owners, to prevent waste or damage to the land. The parties’ stipulation in late February 2012 

that the Association would undertake collective action to address the particular bank erosion and 

ground stability issues at 937 East Lakeshore Drive that were the subject of the Town’s notice of 

violation represented the Association’s first real recognition of its duties as lessee and a major 

shift in the Association’s prior position and understanding. It would not have happened but for 

the Town’s pursuit of alleged violations and MBP’s threat of default. 
6

¶ 14. After MBP filed suit, in April 2012 the Town issued a second notice of violation 

regarding the property at 937 East Lakeshore Drive, this time directed to the Association. The 

Association retained an excavating contractor who dumped three to four cubic yards of 

unscreened topsoil over the bank and spread it around and seeded it with some geotextile 

matting. There was no engineering plan for this work, it did not include any removal of the 

failed foundation at the back end of the camp, and it did not include any structural stabilization to 

the embankment or addition of any riprap or other seawall-type protection at the lake level. The 

work was inadequate and failed to address or correct the issues that were the basis for the 

Town’s notice of violation. 

¶ 15. The Association then hired a different contractor who pulled out the failed 

foundation with cables, installed large boulders at the foot of the embankment to create a seawall 

for this particular lot, and installed a new swale, with riprap, running diagonally across the slope 

to carry runoff from the paved parking area adjacent to the camp at 937 East Lakeshore. But 

there was no plan to tie this work to an integrated approach to dealing with all of the runoff 

coming from the roofs of the camp structures. This work was completed in 2013 and satisfied 

the Town in connection with its notices of violation. 

¶ 16. However, the 2013 work was primarily for immediate stabilization, and not long 

term restoration. By the summer of 2014, it was apparent that the more extensive repair work in 

2013, while perhaps addressing the Town’s violation notices, was still inadequate for the 

purposes of the ground lease. The work did not entirely remediate the bank erosion issues 

immediately beneath the camp at 937 East Lakeshore Drive, and by 2014 that work was already 

failing in part. For that reason, MBP retained its own engineering consultant to prepare an 

alternative plan for embankment stabilization and improvements not just for the camp at 937 

East Lakeshore Drive, but for many of the other camps on the lakeshore. 

¶ 17. MBP’s proposed embankment plan involved remediation and restoration of the 

embankment below the five camps to the south of 937 East Lakeshore. These camps also have 
7

inadequate or failing embankment protection. Either there is no seawall protection at all, or what 

was there is old and failing and positioned at an incorrect elevation. Existing vegetation and/or 

riprap are inadequate to protect against soil erosion, and erosion has occurred beyond normal 

conditions, although the amount of ground soil that has been lost cannot be quantified because 

there is no baseline data. The proposed plan would integrate the drainage and runoff system 

around the structure at 937 East Lakeshore into a comprehensive system that collects and 

discharges the water at the lake level itself, at or below the toe of any seawall. MBP’s engineers 

estimated that the “ballpark” cost of the proposed remediation and restoration would be $93,150-

$164,150. The Association’s engineer estimated that remediation and restoration of the bank 

would cost $78,000. The trial court found the work proposed by MBP’s engineer more thorough 

and detailed, and more likely to result in a longer-term solution to ongoing and continuing bank 

erosion problems. It assessed the cost of that work at $128,640, representing the mid-point of 

the MBP engineer’s estimated cost range. 

¶ 18. Based on these findings, the trial court explained that as lessor of the long-term 

ground lease, MBP has no interest in the camp structures on that land. Its primary interest under 

the lease is return of the land itself at the end of the lease in substantially the same condition as 

when the lease was initiated, absent “normal wear and tear” that would reasonably be expected 

over the forty-year lease term. The trial court concluded that the Association’s failure to 

adequately address lakeside erosion, causing substantial injury to the leased property, amounted 

to “waste.” In reaching this conclusion, it rejected the Association’s argument that MBP’s 

failure to raise the issue of bank stabilization with the Association at any earlier time in the 

course of the ground lease demonstrated, on the basis of the parties’ course of dealing, that the 

Association had no obligation under the ground lease to maintain the embankments.

¶ 19. Despite its ruling in MBP’s favor on the question of default, the trial court did not 

award MBP the relief it sought—namely, lease forfeiture. The court explained, “[L]ease 

forfeiture here would be especially inequitable, and a sanction entirely out of proportion to the 
8

lease violations” involving the Association’s failure throughout the term of the lease to 

adequately protect and stabilize the bank along the lakeshore. Concluding that an award of 

damages for remediation would afford adequate relief, the court awarded MBP a judgment for 

$135,000—the expected cost of remediation and restoration of the bank—and left MBP with the 

responsibility for conducting the repair work along with a corresponding right to enter the 

premises for the purpose of doing the work. 

¶ 20. The trial court concluded that MBP was clearly the prevailing party on the 

principal dispute at trial, and was entitled to an award of attorney’s fees and costs on the basis of 

the ground lease. It indicated that it would entertain a post-judgment motion for fees before 

determining the specific fee award. 

¶ 21. Both parties appealed. The Association contests the trial court’s conclusion that it 

breached its obligations under the ground lease and challenges the trial court’s ruling that MBP 

is entitled to an award of attorney’s fees and costs. MBP appeals the trial court’s remedy, most 

particularly its refusal to terminate the ground lease on the basis of the established default. 

¶ 22. On review, we will uphold the trial court’s findings as long as they are supported 

by any credible evidence in the record, and we review questions of law without deference to the 

trial court. Currie v. Jane, 2014 VT 106, ¶ 19, 197 Vt. 599, 109 A.3d 876.

I. The Association’s Appeal

¶ 23. The Association raises a host of challenges to the trial court’s holding that it 

breached its obligations under the ground lease, and contests the trial court’s conclusion that 

MBP is entitled to yet-to-be-determined attorney’s fees and costs. 

A. Breach of Lease

¶ 24. With respect to the trial court’s conclusion that the Association breached its 

obligations under the ground lease by failing to adequately address lakeside erosion, the 

Association makes four arguments: First, the trial court erred as a matter of law in concluding 

that the lakeside embankment was subject to the ground lease between MBP and the Association. 
9

Second, the trial court erred by concluding that the parties’ course of dealing did not establish 

that erosion repair and prevention was outside the scope of the ground lease. Third, the trial 

court erred by concluding that the bank erosion that the court described as “waste” was not 

ordinary wear and tear. And fourth, the trial court erred by concluding that the bank erosion 

constituted waste. We consider these arguments in turn.

¶ 25. First, we find ample evidence in the record to support the trial court’s conclusion 

that the land comprising the lakeside embankment at issue is within the scope of the ground lease 

between MBP and the Association. 

¶ 26. The Association is correct that MBP did not offer deed or survey evidence 

establishing that the land leased to the Association abuts Lake Champlain. The ground lease 

entered into evidence describes the land subject to the lease as a parcel on both sides of 

Lakeshore Drive comprising the land described in a series of deeds identified by book and page 

in the land records. MBP did not introduce the underlying deeds into evidence or any surveys 

showing the western border of the parcel subject to the ground lease. 

¶ 27. However, uncontroverted testimony and evidence at trial established that the 

property subject to the ground lease was contiguous with the Lake itself. MBP’s manager 

described some of the camps in question as being on the bank of the Lake, and identified the 

stretch of beach between the embankment and the Lake as being owned by MBP and part of the 

ground lease with the Association. The photographs admitted as exhibits show that many of the 

camps that are undisputedly on land leased by the Association are located on and in some cases 

overhang the embankment. The ground lease itself specifically provides that the Association is 

responsible for maintaining and repairing the stairway “from [East Lakeshore Drive] to Malletts 

Bay” and reserves the right to use that stairway for certain non-Association members. And the 

Association itself acknowledged that the embankment along the lake is within the scope of the 

lease. In particular, the Chair of the Association testified that the Association has historically 

taken the position that individual camp owners are responsible for maintaining the integrity of 
10

their bank “because it was considered to be their land, even though we’ve leased that land.” In 

the face of this evidence, the Association offered no countervailing evidence suggesting that 

boundary of the lands leased by the Association does not encompass the beach and embankment. 

This evidence is sufficient to support the trial court’s finding that the land along the lake was 

included in the ground lease. Whippie v. O’Connor, 2010 VT 32, ¶ 12, 187 Vt. 523, 996 A.2d 

1154 (“We uphold the trial court’s findings as long as they are supported by any credible 

evidence in the record.”).

¶ 28. Second, the trial court acted within its discretion in rejecting the Association’s 

argument that a course of dealing between the parties established that the Association was not 

obligated under the lease to maintain the bank along the lakeshore. The Association argues that 

by remaining silent about the Association’s asserted to repair or prevent erosion of the banks 

from the inception of the lease until the fall of 2011, MBP engaged in a course of dealing that 

demonstrates that the Association was not obligated under the lease to maintain the banks. 

¶ 29. The trial court responded with a legal observation and factual findings. 

Concerning the law, the trial court noted that no legal precept requires a lessor to constantly 

remind a lessee of its obligations under a lease, especially where it is a long-term commercial 

ground lease entered into by two sophisticated entities each represented by counsel. On the 

facts, the trial court concluded that, under the terms of the lease, the Association had an 

obligation to return the land in substantially the same condition as when the lease was initiated, 

other than normal wear and tear. The trial court did not credit the Association’s argument that 

the parties’ course of dealing, and in particular MBP’s silence on the issue prior to 2011, showed 

that the Association had no obligation to maintain the embankment. Instead, the trial court

concluded that MBP’s rights were established by the lease, and it was only inspired to act to 

enforce those rights when the loss of soil and attendant erosion problems became too much to 

ignore, as evidenced by the Town’s notices of violation concerning the camp at 938 East 

Lakeshore. 
11

¶ 30. The trial court’s rejection of the Association’s argument is legally sound and 

supported by the evidence. The Association is correct that a course of dealing between parties, 

such as a series of transactions in which the parties apply or accept certain pricing terms that are 

otherwise omitted from their agreement, may give meaning to, supplement, or qualify their 

agreement. Restatement (Second) Contracts § 223(b) (1981). But “course of dealing” must be 

proved just like any other fact. See Tobias v. N.D. Dep’t of Human Servs., 448 N.W.2d 175, 

180-81 (N.D. 1989) (considering “course of dealing” argument under North Dakota’s Uniform 

Commercial Code). In this case, there is no evidence of repeated transactions between the 

parties, or even a course of communications in which MBP accepted or endorsed the suggestion 

that the Association was not obligated to maintain the embankment. In arguing that the parties’ 

course of dealing informs the meaning of or modifies their agreement, the Association relies 

entirely on MBP’s inaction in failing to assert its rights sooner. The Association’s evidence on 

this point was not so unequivocal as to compel the trial court, as a matter of law, to conclude that 

the ground lease did not mean what it said on its face, or that the parties had modified their 

agreement through a course of dealing. The role of the trial court, as factfinder, is to judge the 

credibility of witnesses and the weight to be given their testimony. See Cameron v. Double A. 

Servs., Inc., 156 Vt. 577, 582, 595 A.2d 259, 262 (1991). The trial court’s rejection of the 

Association’s course-of-dealing argument was within its discretion and supported by the 

evidence. 

¶ 31. Third, the trial court’s conclusion that the erosion of the embankment on the 

leased property went beyond ordinary wear and tear and constituted waste was supported by law 

and the evidence. We reject the Association’s argument that because the erosion was caused by 

natural processes—namely, waves and rising water levels on Lake Champlain and significant 

storm events—it must be characterized as ordinary wear and tear. 

¶ 32. The law excludes normal wear and tear from the definition of waste. See Prue v. 

Royer, 2013 VT 12, ¶ 62, 193 Vt. 267, 67 A.3d 895 (“[T]he traditional measure of damages in a 
12

claim for waste has been the reduction in property value beyond that caused by normal wear and 

tear.”). The questions of what damage to property amounts to “waste” and what damage 

constitutes ordinary or normal “wear and tear” thus turn on the same considerations. 

¶ 33. Our cases describing the contours of “ordinary wear and tear” establish two 

closely related guiding principles that are pertinent to this case. First, whether degradation of 

property represents ordinary wear and tear depends on the reasonableness of the lessee’s use of 

the property with respect to that degradation. Second, the concept is context-dependent and may 

vary with the use and type of property. 

¶ 34. “Ordinary wear and tear” is defined with reference to reasonable conduct by the 

lessee. Black’s Law Dictionary defines “ordinary wear and tear” as “deterioration caused by 

ordinary use” or “the depreciation of property resulting from its reasonable use.” Black’s Law 

Dictionary (10th ed. 2014) (emphasis added); see also 9 V.S.A. § 4451(5) (defining “normal 

wear and tear” for purposes of residential rental agreements as “the deterioration which occurs, 

based upon the reasonable use for which the rental unit is intended, without negligence, 

carelessness, accident, or abuse of the premises or equipment or chattels by the tenant or 

members of his or her household or their invitees or guests” (emphasis added)). 

¶ 35. Accordingly, in Drouin v. Wilson, this Court considered not only the nature of the 

damage to the property when returned to the landlord, but the cause of the damage. 80 Vt. 335, 

343, 67 A. 825, 827 (1907). In that case, a lessee of commercial property returned the leased 

property with a plate glass window that had broken on account of shifting in the building frame 

or foundation. This Court concluded that the injury to the plate glass window, “sustained in the 

proper use of the building,” was not an injury for which the lessee was liable. Id. at 344, 67 A. at 

827. The fact that the damage occurred even though the lessee was making “proper use of the 

building” was central to our analysis. Had the breakage resulted from lessee’s own conduct, 

while not using the building properly, the breakage may have amounted to waste and not 

ordinary wear and tear. 
13

¶ 36. The Restatement incorporates this reasonableness requirement, and recognizes 

accordingly that a lessee may be obligated to take affirmative steps to protect the leasehold from 

damage resulting from outside forces, including damage inflicted by the elements or unrelated 

third parties. See Restatement (Second) Property, Landlord & Tenant § 12.2(I) (1977). For 

example, the tenant of a residential property is required to take reasonable steps to protect the 

interior of the house from damage resulting from the elements invading the leased property as a 

result of a blown-out window. Id., cmt. d, illus. 5. If a tenant takes no steps to protect the 

property, knowing of a fire danger caused by a neighbor’s burning leaves on a day when the 

wind is blowing toward the leased property, the tenant may be subject to damages or termination 

of the lease on account of fire damage to the leasehold resulting from the neighbor’s conduct. 

Id. § 12.2(2), cmt. g, illus. 20. And a tenant who leaves the leased property unattended, with the 

doors unlocked and the windows open, is accountable for the damage caused by a third person 

who enters and damages the leased property. Id.; see also Restatement (First) Property § 139, 

cmt. c (1936) (“A repair or act of preservation is clearly within such a duty whenever such repair 

or act is necessary to prevent a progressive deterioration of the land or structures or whenever the 

condition existing as a result of the failure to make such repair will amount to substantial 

deterioration of the land or structures from the condition in which such land and structures were 

at the time of the commencement of the state for life.”)

¶ 37. The related point about “ordinary wear and tear” is that its contours depend to 

some extent on the character and use of the property in question. We have explained, “It is well 

settled that the age, class, and general condition of the property when taken are to be considered 

in determining the liability of the tenant” under lease covenants. Drouin, 80 Vt. at 343, 67 A. at

27. 

¶ 38. With this legal framework in mind, the trial court’s conclusion that the damage to 

MBP’s land exceeded ordinary wear and tear and amounted to waste was well supported by the 

evidence at trial. The property at issue abuts Lake Champlain. Part of the property forms an 
14

embankment from the road down to the lake level. The trial court could reasonably conclude 

that these facts were relevant to the distinction between “ordinary wear and tear” consistent with 

reasonable use of the property versus “waste” constituting a breach of the terms of the lease. The 

trial court heard extensive expert testimony from both parties about what measures were 

reasonable to secure the property from unreasonable levels of erosion. The recommendations 

were not extraordinary. MBP’s engineering expert testified that it is very common for camps 

and properties on Lake Champlain to have some form of seawall to protect their frontage, and 

that camps that do not take these steps progressively lose real estate. MBP’s expert also noted 

the regular maintenance such structures may require. And, the trial court found, and the 

evidence supported, that the parties to this ground lease set a below market rate to allow camp 

owners to maintain their individual properties, as well as the land and overall grounds. In short, 

ample evidence supports the trial court’s conclusion that in this case the Association was 

obligated to take reasonable steps to protect the lakeside property from erosion beyond ordinary 

wear and tear.

¶ 39. Likewise, the trial court’s conclusion that the erosion sustained to date was 

substantially more than what would have occurred naturally, but for the Association’s use and 

occupation of the leased premises and its failure to install and/or maintain adequate erosioncontrol measures over many years, is supported by the evidence. MBP’s expert attributed the 

erosion of the embankment to inadequate shoreline protection, and concentrated discharges of 

runoff from gutters, drains, or pavement. Accordingly, we conclude that the trial court’s 

conclusion that the damage to the property in this case amounted to more than ordinary wear and 

tear is supported by the law and the evidence.

¶ 40. Finally, we reject the Association’s argument that in the absence of a specific 

finding as to the amount of ground lost due to erosion, above and beyond expected losses 

attributable to normal wear and tear, the trial court’s finding that the erosion amounts to waste 

cannot stand. Our response includes considerations of law and of the record in this case.
15

¶ 41. With respect to the law, the absence of evidence of the diminution in the value of 

the land in this case is irrelevant. This Court has held that “waste” may include repairable 

damage to property and that the cost of repair is an available measure of damages for waste. See 

Prue, 2013 VT 12, ¶¶ 65-66. Insofar as the Association seems to be arguing that MBP did not 

introduce any evidence of a reduction in value of the land due to the waste, that argument is 

factually accurate but legally inconsequential. MBP’s proof and theory of recovery was not 

based on the diminution in value of the property as a result of the eroded banks; it was based on 

the reasonable cost to repair the embankment and protect it from further waste. See id. (“If we 

recognized repairable damage to property as waste, we necessarily must allow the cost of repair 

as a measure of damages.”).

¶ 42. With respect to the evidence, findings as to the precise volume of soil that has 

been lost through excessive erosion are not essential to the trial court’s analysis. The trial court 

found that the embankment protection along a stretch of the property abutting Lake Champlain 

was failing or inadequate, and that, as a result, the property had undergone substantial erosion 

beyond what would have occurred with proper stabilization and protection of the embankment. 

This finding was supported by evidence, and a more precise quantification of the amount of soil 

lost to erosion was not necessary. Moreover, a determination of the exact amount of soil lost 

was not essential to the trial court’s choice between the competing expert proposals to provide a 

longer term solution to the ongoing bank erosion problems. 

B. Attorney’s Fees

¶ 43. The Association challenges the trial court’s order that MBP is entitled to 

attorney’s fees and costs on two bases. First, it argues that the attorney fee-shifting provision in 

the ground lease is unenforceable as a matter of law because it is “unilateral.” That is, it allows 

MBP to collect fees in the event of a breach by the Association but does not offer the Association 

the same opportunity. Second, it argues that fees are available only in the case of default, and 

there has been no default here. We decline to adopt a per se rule that unilateral attorney fee-
16

shifting clauses in contracts are unenforceable and reject the Association’s second argument

largely on the basis of our preceding analysis.

¶ 44. In support of its position that the unilateral fee-shifting provision is 

unenforceable, the Association cites two authorities—neither of which supports the proposition 

for which it is cited. One authority relied on by the Association is a law review article that 

describes the inherent unfairness of one-sided fee-shifting provisions, advocates a legislative

approach towards one-sided attorney’s fee-shifting clauses, and offers a proposed statute to 

regulate them. See J. C. Bright, Unilateral Attorney’s Fees Clauses: A Proposal to Shift to the 

Golden Rule, 61 Drake L. Rev. 85, 90-111, 120-26 (2012). Among other things, the proposed 

statute would reform contracts that contain unilateral fee-shifting provisions so that the feeshifting in favor of the prevailing party is reciprocal. Id. at 120. This article provides no basis 

for a court-imposed, across-the-board invalidation of unilateral fee-shifting provisions. In fact, 

the author’s proposed solution—construing such provisions to allow an attorney’s fee award in 

favor of the prevailing party in both directions—would do nothing to advance the Association’s 

position in this case.

¶ 45. The other authority cited by the Association is a decision from the United States 

District Court for the District of Vermont that calls for strict construction against the drafter of 

fee-shifting clauses in form contracts drafted by one party to be signed by the party in a weaker 

position. In re Parker, 269 B.R. 522, 530 (Bankr. D. Vt. 2001). The Association does not argue 

that the negotiated ground lease in this case is a contract of adhesion, and it seeks invalidation, 

rather than narrow construction of the fee-shifting provision in that lease. The Parker case 

provides scant support for the Association’s legal argument.

¶ 46. The Association’s second argument against the trial court’s attorney’s fee award 

is largely a rehash of its arguments on the merits, and fails for the reasons discussed above. The 

Association also contends that a precondition to an award of attorney’s fees is a breach of the 

ground lease lasting in excess of forty-five days. It argues that it initiated steps to repair the bank 
17

at 937 East Lakeshore Drive within days of MBP’s notice, and that it cannot be required to fully 

perform within forty-five days where, as here, delays in the permitting process and seasonal 

constraints made performance within forty-five days impossible. With respect to the portions of 

the embankment beyond 937 East Lakeshore Drive, it reiterates its claim that it has no obligation 

under the ground lease to prevent or repair erosion. We have already rejected this latter 

argument in discussing the merits above, and the trial court’s findings, which are supported by 

the evidence, do not support the Association’s claim that its inability to cure the default at 937 

East Lakeshore Drive within forty-five days is due solely to factors beyond its control. See 

supra, ¶¶ 11-12.

II. MBP’s Appeal

¶ 47. MBP challenges the trial court’s award of monetary damages in lieu of 

terminating the lease and evicting the Association members. 

¶ 48. The ground lease provided, “in the event that an Event of Default shall have 

occurred, [and] upon issuance of a writ of possession, the rights of the Lessee . . . shall 

immediately cease and become void.” It further stated, “[i]f any Event of Default shall have 

occurred and be continuing, whether or not the term of this lease shall have been terminated 

pursuant to the Lease, the Lessor may enter upon and repossess the Land or any part thereof 

pursuant to Vermont law.” On the basis of these provisions, MBP sought a declaratory judgment 

that the lease was terminated and that MBP was entitled to repossess the property, as well as a 

writ of possession. 

¶ 49. Although the trial court concluded that the Association had breached the lease by 

committing waste, the trial court concluded that forfeiture of the lease—which otherwise 

extended to 2036—“would be especially inequitable, and a sanction entirely out of proportion to 

the lease violations.” Accordingly, the trial court declined to declare the lease terminated or to 

issue a writ of possession in favor of MBP.
18

¶ 50. MBP contends that the trial court lacked the authority to conduct the kind of 

equitable balancing that it undertook in this case and that the trial court should have enforced the 

terms of the lease. Alternatively, MBP argues that even if the trial court did have discretion to 

decline to enforce the forfeiture provision, it exceeded its discretion in doing so here. 

¶ 51. The general maxim that forfeiture under a lease is disfavored by law is well 

established in our cases, but this general statement of policy does not support the suggestion that 

in the face of an established default and a lessor’s timely invocation of a contractual right to 

terminate, a court may decline to terminate the lease pursuant to its terms. See Osgood v. Cent.

Vt. R. Co., 77 Vt. 334, 343-44, 60 A. 137, 140 (1905) (discussing important policy of enforcing 

parties’ contracts)

¶ 52. This Court has often repeated the general proposition that forfeiture under a lease 

is disfavored by the law. See, e.g., Willard v. Benton, 57 Vt. 286, 289 (1884) (“The law does not 

favor forfeitures.”); Powell v. Merrill, 92 Vt. 124, 127, 103 A. 259, 262 (1918) (“Forfeitures are 

not favored by the law.”); Hinsman v. Marble Sav. Bank, 100 Vt. 48, 50, 134 A. 635, 636 (1926) 

(Hinsman I) (“Forfeitures are not favored by law, and the mere breach of a covenant does not 

work a forfeiture, unless it be one that disaffirms or impugns the title of the lessor and tends to 

defeat the reversion.” (citations omitted)); Champlain Oil Co. v. Trombley, 144 Vt. 291, 297, 

476 A.2d 536, 539 (1984) (“[F]orfeitures are not favored in equity”); Zurmuhlen v. Uchida, 153 

Vt. 165, 168, 569 A.2d 480, 482 (1989) (quoting Hinsman I). 

¶ 53. In the context of leases, this general policy against forfeitures has supported 

several requirements prerequisite to imposition of a forfeiture remedy. First, this Court has held 

that a breach alone will not support forfeiture absent a “special stipulation” or agreement to that 

effect. See Powell, 92 Vt. at 127, 103 A. at 262 (“The mere breach of a covenant contained in 

the lease does not in the absence of a special stipulation, work a forfeiture of the term or give the 

landlord a right of re-entry.”). 
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¶ 54. Second, this Court has consistently construed forfeiture clauses narrowly, and 

required strict proof to support a forfeiture remedy. See id. (“[S]tipulations [for forfeiture] are 

construed strictly.”); Waterman v. Clark, 58 Vt. 601, 605, 2 A. 578, 581 (1886) (“The law does 

not favor forfeitures. It will not declare one upon implication. Strict proof is always required.”) 

Benton, 57 Vt. at 289 (“The law does not favor forfeitures; nor would declare one by 

implication, but would require strict proof.”); see also Palmer’s Ex’r v. Ryan, 63 Vt. 227, 228, 22 

A. 574, 574 (1891) (“All contracts under which forfeitures are claimed are to be construed 

strictly to avoid such result.”).

¶ 55. Third, the law requires that the breach supporting a judgment of forfeiture “not be 

trivial or technical.” Champlain Oil Co., 144 Vt. at 297, 476 A.2d at 539 (citing Houghton v. 

Cook, 91 Vt. 197, 205, 100 A. 115, 119 (1917)); see also Hinsman I, 100 Vt. at 50, 134 A. at 636 

(“Forfeitures are not favored by law, and the mere breach of a covenant does not work a 

forfeiture unless, it be one that disaffirms or impugns the title of the lessor and tends to defeat the 

reversion.”); Century Partners, LP v. Lesser Goldsmith Enters., Ltd., 2008 VT 40, ¶ 24 184 Vt. 

215, 958 A.2d 627 (holding that where tenant’s certificate of occupancy violation is technical in 

nature, landlord may not cause forfeiture of tenancy and removal of tenant on account of such 

violation unless landlord cooperates in good faith to attempt to cure it).

¶ 56. And finally, the law requires a timely affirmative act by the lessor to invoke the 

forfeiture provision. This requirement is the most developed corollary of the general policy 

disfavoring forfeiture of leases, and most cases, in Vermont and other states, that cite the policy 

disfavoring forfeiture of leases, involve this imperative. For example, in the case of Houghton v. 

Cook, this Court explained that the breach of a condition in a lease, with the right to enter 

thereon, does not in itself terminate the lessee’s interest. 91 Vt. 197, 203-04, 100 A. 115, 119 

(1917). The Court explained:

Such a breach is the ground of a forfeiture, but the forfeiture arises 

from the lessor’s act. It is optional with [the lessor] to claim a 

forfeiture or to waive it, and if [the lessor] would treat the breach 
20

as a forfeiture [the lessor] must promptly evince [this] purpose by 

some distinct and positive act. 

Id.

¶ 57. In Hinsman v. Marble Savings Bank—a case that came to this Court three 

times—this Court established that a timely action for ejectment is sufficient to invoke the 

forfeiture provision. Hinsman I, 100 Vt. at 48, 134 A. at 635. In Hinsman I, a tenant bank sublet 

the leased space to a fruit vendor, and the lessor sought termination of the lease and possession 

of the premises on account of the bank’s alleged breach of the lease. This Court concluded that 

the sublease may have violated an implied duty in the lease, but that ejectment was not available 

for breach of a covenant implied by law. Id. at 50, 134 A. at 636. The Court accordingly 

declined to terminate the lease on account of the bank’s sublease.

¶ 58. The case came back to the Court, this time in connection with the lessor’s claim

that the bank breached the covenant to use and manage the premises in a good and husbandlike 

manner. Hinsman v. Marble Sav. Bank, 102 Vt. 217, 147 A. 270 (1929) (Hinsman II). The 

Court acknowledged that the bank had breached the express covenant for good husbandry, but 

explained, “[T]he mere breach of a covenant contained in a lease does not, in the absence of 

special stipulation, work a forfeiture of the term or give the landlord a right of entry, unless (as is 

not the case here) it is one that disaffirms or impugns the title of the lessor and tends to defeat 

reversion.” Id. at 221, 147 A. at 271. The Court reiterated that it is incumbent on the lessor to 

claim the forfeiture by promptly evincing such purpose by “some distinct and positive act.” Id. 

The Court acknowledged that the lessor’s bringing of an action to recover possession could 

constitute its reentry, thereby timely terminating the lease, but was unclear as to whether the 

lessor had invoked the breach of the covenant for good husbandry in the initial ejectment action. 

Id. at 222-23, 147 A. at 272. It remanded for a determination on that point. 

¶ 59. The third time around, this Court affirmed a judgment for the lessor. Hinsman v. 

Marble Sav. Bank, 104 Vt. 40, 156 A. 874 (1931) (Hinsman III). On remand the lessor had 
21

demonstrated that the initial ejectment action was premised in part on the covenant of good 

husbandry and was litigated accordingly. This Court reiterated that the bank’s breach of the 

covenant, standing alone, did not work a forfeiture, because a forfeiture requires reentry, an 

action of ejectment, or some act unequivocally manifesting the lessor’s intention to claim the 

forfeiture and terminate the lease. Id. at 42-43, 156 A. at 875. But having confirmed that the 

lessor in this case did timely elect the forfeiture remedy by filing an action for ejectment based 

on the covenant breach, this Court affirmed the judgment for the lessor. 

¶ 60. More recently, this Court has relied on the reasoning in the Hinsman cases in 

denying a landlord forfeiture under a lease. In Zurmuhlen, in November 1985, a commercial 

tenant made renovations to the leased space without the landlord’s approval. In January 1986,

the landlord notified the tenant that the renovations violated the lease and offered to renegotiate 

the lease to reflect increased rent. The letter threatened litigation but did not invoke the 

forfeiture clause of the lease and did not give the tenant thirty days to cure. Only in March 1986 

did landlord give tenant notice of her intent to terminate the lease on the basis of the default. We 

affirmed the trial court’s conclusion that the landlord had waived her forfeiture right by failing to 

take action to terminate the lease promptly. 153 Vt. at 168-69, 569 A.2d at 489.

¶ 61. Although the law disfavors forfeiture clauses, this Court has never declined to

enforce a contractual forfeiture provision when the landlord timely invoked the forfeiture right. 

Although the Hinsman decisions are frequently cited in support of the policy disfavoring 

forfeiture, ultimately this Court concluded that the lessor in that case had timely acted to 

terminate the lease by filing an ejectment action based on the lessee’s breach of the lease terms, 

and thus affirmed a judgment for the lessor. Hinsman III, 104 Vt. at 43-44, 156 A. at 875-76. 

¶ 62. Likewise, this Court affirmed a forfeiture in favor of a commercial landlord on the 

basis of an arguably quite modest default. See Champlain Oil Co., 144 Vt. at 291, 476 A.2d at 

536. In Champlain Oil Co., a Champlain Oil Company leased a gas station and store to 

Trombley. In addition to other terms, the parties’ agreement provided that once Champlain Oil 
22

finished installing delicatessen equipment in the store, Trombley would begin paying $75.00 

weekly against its outstanding gasoline consignment account balance with Champlain Oil, which 

exceeded $20,000 at that point. The parties’ agreement provided that if Trombley failed to 

perform any of his obligations under the agreement, and such failure continued for a period of 

seven days, Champlain Oil could lawfully declare termination of the agreement and reenter the 

premises. Champlain Oil completed installing the equipment on May 11, and Trombley began 

paying $75.00 weekly against the gas balance sometime in July. Trombley’s $75 check for the 

week of September 16 bounced and remained outstanding for over seven days. This bounced 

check was the basis for Champlain Oil’s termination, request to vacate, and complaint for 

ejectment. In affirming the ejectment, this Court acknowledged that, “[t]o support a judgment of 

forfeiture, the breach complained of may not be trivial or technical.” Id. at 297, 476 A.2d at 539. 

And we recognized that “[a] court of equity will generally relieve a party who has not performed 

[the] contract strictly as to time, unless it appears affirmatively that the parties regarded time as 

an essential element in their agreement.” Id. (quotation omitted). But this Court upheld the 

ejectment on the basis of the trial court’s finding that prompt payment of the $75.00 weekly 

check was an essential element of the agreement between the parties, and that defendant’s failure 

to timely pay, lasting over seven days, amounted to a material breach. Id. at 297, 476 A.2d at 

539-40.

¶ 63. This is a case of first impression insofar as the Association urges us to rely on our 

general policy disfavoring forfeitures to authorize the trial court to invoke general equitable 

considerations in declining to enforce a contractual agreement providing for forfeiture in the 

event of default, even though the lessor timely invoked the clause and elected termination.3 We 

decline to do so for several reasons. 

 

3

The Association does not contend that MBP failed to timely terminate the lease on 

account of the breach. Nor could it. See supra, ¶¶ 9-13. The record reflects that MBP’s 

September 28, 2011 notice to the Association not only enumerated the Association’s claimed 

defaults, but specifically provided the Association with forty-five days to remedy the defaults 
23

¶ 64. First, our precedent does not support setting aside clearly applicable, contractedfor remedies. As set forth above, our own cases subject forfeiture claims to close scrutiny. We 

construe contractual forfeiture clauses narrowly and require strict proof to support a forfeiture. 

See supra, ¶¶ 54-55. We require the party seeking forfeiture to clearly and timely invoke the 

remedy. See supra, ¶ 57. And we have cautioned that a trivial or technical breach cannot 

support a judgment of forfeiture. Champlain Oil Co., 144 Vt. at 297, 476 A.2d at 539. But we 

have never suggested that in the context of a long-term ground lease negotiated by sophisticated 

parties, one party may be relieved of the contracted-for consequences of its breach on equitable 

grounds. As we noted in a related context, the tendency of the law toward expanding contractual 

defenses “should be regarded with great caution since there is danger that courts, in their desire 

to relieve parties in hard cases, may go too far.” Retail Merchs.’ Bus. Expansion Co. v. Randall, 

103 Vt. 268, 271, 153 A. 357, 358 (1931). We explained, “[t]he province of courts is to construe 

and enforce contracts, not to make or modify them.” Id.; cf. Finn v. Meighan, 325 U.S. 300, 301 

(1945) (explaining that bankruptcy court does not look with favor upon forfeiture clauses in 

leases, but that express covenant of forfeiture has long been held to be enforceable against 

bankruptcy trustee).

¶ 65. Second, we rely on the Restatement, which provides that if the tenant makes 

impermissible changes to the physical condition of the leased property, and the leased property 

cannot be restored to its former condition, or has not been restored to its former condition 

promptly after a request from the landlord to do so, the landlord may terminate the lease and 

 

and indicated that if the Association failed to cure the defaults within that time frame MBP could 

enter and repossess the property and take all lawful steps to terminate the lease. MBP then filed 

an ejectment claim on January 9, 2012. The delay in invoking the termination remedy that 

defeated the lessor’s claim in Zurmuhlen, and was the subject of this Court’s extended inquiry in 

Hinsman II and Hinsman III, is not an issue in this case.

Moreover, although the trial court concluded in this case that the remedy of forfeiture 

was disproportionate to the default, the trial court’s findings cannot be interpreted to support the 

conclusion that the breach in this case was “trivial” or “technical.” The trial court concluded that 

the cost of restoring the damaged banks was over $128,000. 
24

recover damages, continue the lease and recover damages, and, in an appropriate case, obtain 

equitable relief. Restatement (Second) of Property: Landlord & Tenant § 12.2(2); see also id., 

cmt. h (explaining that landlord can assert above remedies only if tenant does not restore leased 

property to its former condition promptly, meaning “as rapidly as possible” after request to do 

so); id. rep. note 10 (noting that Restatement adopts position that termination is available remedy 

for waste as long as landlord gives tenant opportunity to restore leased property to its former 

condition before terminating lease). 

¶ 66. The Restatement makes it clear that the election to terminate a lease belongs to 

the landlord, not the defaulting tenant or the trial court. See id. § 13.1 (stating that if tenant fails 

to perform valid promise and landlord is thereby deprived of significant inducement to making of 

lease, if tenant does not perform within reasonable period of time after being requested to do so, 

landlord may elect to terminate lease and recover damages); id. cmt. c (noting if repairs are 

needed because tenant has committed waste, landlord’s remedies, including election to terminate 

lease, is in no way restricted by tenant’s promise to repair); id. cmt. k (“The lease is not 

automatically terminated by the tenant’s failure to perform a promise. The right to terminate

given the landlord under the rule of this section is an option to terminate the lease. The exercise 

of this option requires that the landlord notify the tenant that [the landlord] has elected to 

terminate the lease for the failure of the tenant to perform a promise within a reasonable time 

after being requested to do so.”). See id., rep. note 9 (“Where the lease so provides, the right to 

terminate is widely recognized, for example, for the tenant’s failure to repair as promised.”). In

short, in the face of a default and waste as found by the trial court in this case, the Restatement 

recognizes that the landlord, not the trial court, is empowered to elect among the available 

remedies, including termination of the lease pursuant to its terms.

¶ 67. Whatever inequity might otherwise result from enforcement of a forfeiture 

provision is considerably mitigated by the opportunity afforded to the lessee to promptly restore 

the property to its pre-breach condition. See, e.g., Mayflower Assocs. v. Elliott, 81 So.2d 719,
720 (Fla. 1955) (en banc) (recognizing that equity may provide relief against forfeiture of long 

term lease for failure to pay required rent, but that primary condition precedent to relief against 

forfeiture is that tenant effectively and in good faith tender payment of arrears of rent). In this 

case, the trial court found that the Association failed to avail itself of this opportunity, adhering 

to the unsupportable view that the Association itself, as contrasted with the individual camp 

owners, had no obligation to restore the property. 

¶ 68. Finally, we note that our statutes have long contemplated the ejectment of tenants 

on the basis of a breach of a stipulation contained in a lease. In particular, 12 V.S.A. § 4851 

provides, “after breach of a stipulation contained in the lease by the lessee . . . , the person 

entitled to the possession of the premises may have from the presiding judge of the superior court 

a writ to restore him or her to the possession thereof.” This Court has recognized that ejectment 

under this statute “is not confined to forfeitures claimed by reason of nonpayment of rent,” and 

that “[w]here a forfeiture for some reason other than nonpayment is sought . . . the tender [of all 

rent due] will not abate the action.” Canfield v. Hall, 121 Vt. 479, 482, 484, 160 A.2d 768, 770-

71 (1960). This Court noted, “[t]he defendants by . . . paying money into court as rent, cannot 

deprive the plaintiffs of their right to ejectment for a breach of other stipulations in the lease.” 

Id. at 484, 150 A.2d at 771.

¶ 69. For these reasons, we conclude that on the basis of the trial court’s findings that 

the Association had substantially defaulted pursuant to the terms of the ground lease, and given 

that MBP timely and clearly asserted its election under the terms of the contract to terminate the 

lease, on this record MBP was entitled to terminate the ground lease as a matter of law, and is 

entitled to a writ of possession.

Reversed and remanded for determination of a remedy in light of the above.

FOR THE COURT:

Associate Justice

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