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NEIGHBORHOOD ASSN., INC. v. LIMBERGER—DISSENT

ROGERS, C. J., with whom ZARELLA, J., joins, dissenting. I respectfully dissent from the majority opinion

because I believe that a standard foreclosure policy may

be adopted as an internal business operating procedure

and need not be adopted as a rule. In reading its decision, I believe the majority ignores both the statutory

definition of a rule and improperly expands the scope

of the protections set forth in the standard foreclosure

policy provision, General Statutes (Rev. to 2011) § 47-

258 (m) (3),1 which is part of Connecticut’s Common

Interest Ownership Act (act), General Statutes § 47-200

et seq.

The text of § 47-258 (m) (3) addressing the commencement of a foreclosure action, like the one in the

present case brought by the plaintiff, The Neighborhood

Association, Inc., against the defendant Jill M. Limberger,2

the owner of a condominium unit in The Neighborhood, a common interest community, is silent as to

whether the foreclosure policy must have been adopted

pursuant to the rule requirements contained in the act.

Instead, § 47-258 (m)(3) simply provides that the executive board of a unit owner’s association (association),

such as the plaintiff, must either vote to commence a

foreclosure action specifically against a unit or have

adopted a standard policy that provides for foreclosure

against that unit. Therefore, we must look to other

sections of the statutory scheme for guidance.

‘‘When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent

of the legislature. . . . In other words, we seek to

determine, in a reasoned manner, the meaning of the

statutory language as applied to the facts of [the] case,

including the question of whether the language actually

does apply. . . . In seeking to determine that meaning,

General Statutes § 1-2z directs us first to consider the

text of the statute itself and its relationship to other

statutes. If, after examining such text and considering

such relationship, the meaning of such text is plain and

unambiguous and does not yield absurd or unworkable

results, extratextual evidence of the meaning of the

statute shall not be considered.’’ (Internal quotation

marks omitted.) Joseph General Contracting, Inc. v.

Couto, 317 Conn. 565, 586, 119 A.3d 570 (2015). ‘‘It is a

basic tenet of statutory construction that the legislature

[does] not intend to enact meaningless provisions. . . .

Because [e]very word and phrase [of a statute] is presumed to have meaning . . . [a statute] must be construed, if possible, such that no clause, sentence or

word shall be superfluous, void or insignificant.’’ (Internal quotation marks omitted.) Lopa v. Brinker International, Inc., 296 Conn. 426, 433, 994 A.2d 1265 (2010).

I begin with the statutory definition to determine
whether the standard foreclosure policy needs to be

adopted as a rule. General Statutes § 47-202 (31) provides: ‘‘ ‘Rule’ means a policy, guideline,restriction, procedure or regulation of an association, however

denominated, which is adopted by an association pursuant to section 47-261b which is not set forth in the

declaration or bylaws and which governs the conduct

of persons or the use or appearance of property.’’ More

precisely, a rule ‘‘means a policy . . . which is not set

forth in the declaration or bylaws . . . .’’ General Statutes § 47-202 (31). It is undisputed that in the present

case, The Declaration of The Neighborhood (declaration) does give the unit owners notice of the plaintiff’s

right to foreclose.3

In fact, the language of the declaration closely tracks the language of § 47-258, which

details an association’s statutory lien and methods of

enforcement. See generally General Statutes (Rev. to

2011) § 47-258 (a), (d) and (j).4 Because the right of the

plaintiff to foreclose is set forth in § 19.4 (g) of the

declaration, it is clear to me that this policy falls outside

the definition of a rule.5

While I believe that the text of the definition is dispositive, I note that the majority concedes that the definition of a ‘‘rule’’ set forth in § 47-202 (31) cannot be

construed so broadly that it applies to any policy or

procedure of the association that applies to any person,

because such a construction would read out General

Statutes § 47-261b (g), which provides that ‘‘[a]n association’s internal business operating procedures need not

be adopted as rules.’’6 Through its examination of extratextual sources, the majority draws the ‘‘limiting principle’’ that business operating procedures cannot be

‘‘policies that impact unit owners’ rights and obligations, directly or indirectly.’’ A review of § 47-261b, the

rule-making provision, however, provides more reasonable limiting parameters.7 Subsections (c) through (f)

of § 47-261b detail the matters that an association may

address in a rule. See General Statutes § 47-261b (c)

(construction and design criteria and aesthetic standards, procedures for enforcement and procedures for

association’s failure to act within reasonable time on

construction application); General Statutes § 47-261b

(d) (time, place, size, number and manner of flag displays); General Statutes § 47-261b (e) (time, place and

manner of peaceful assemblies on common elements);

General Statutes § 47-261b (f) (use of or behavior in

residential units). In my view, the provisions of § 47-

261b (c) through (f) support the conclusion that the

core legislative intent of the rule-making provisions was

to ensure that unit owners would have notice of and

an opportunity to weigh in on a proposed rule that

would affectrights that are traditionally associated with

private home ownership or constitutionally protected

speech rights.8

An association’s standard foreclosure policy is

removed from such concerns. An ordinary homeowner
does not have a property or constitutionalright to notice

and comment regarding the specific foreclosure procedures that will apply to the foreclosure of his or her

home. Rather, homeowners are aware that if they have

a mortgage, the mortgagee can foreclose and they must

only receive notice of foreclosure for the action to proceed. See, e.g., General Statutes § 49-24b (a) (‘‘a mortgagee who desires to foreclose upon a mortgage

encumbering residential real property of a mortgagor

shall give notice to the mortgagor by registered or certified mail, postage prepaid, at the address of the residential real property that is secured by such mortgage, in

accordance with the relevant notice provisions of this

chapter’’). Similarly, unit owners are deemed to be on

notice of the association’s lien and therefore its ability

to foreclose, even without all the details that a standard

foreclosure policy could provide. See General Statutes

(Rev. to 2011) § 47-258 (d) (‘‘Recording of the declaration constitutes record notice and perfection of the

lien. No further recordation of any claim of lien for

assessment under this section is required.’’); General

Statutes (Rev. to 2011) § 47-258 (j) (‘‘[t]he association’s

lien may be foreclosed in like manner as a mortgage

on real property’’).

In other words, there is nothing in the language of

the statute regarding rules that suggest that if a standard

foreclosure policy meets the protections afforded in

the statute that its adoption requires notice and comment. See, e.g., Rene Dry Wall Co. v. Strawberry Hill

Associates, 182 Conn. 568, 573, 438 A.2d 774 (1980)

(stating that despite fact that mechanic’s lien legislation

is remedial in nature, which counseled ‘‘generous construction’’ in favor of lien, it did not permit court to

extend mechanic’s lien beyond that authorized by statute). It is undisputed that both policies here do meet

those baseline protections.

Finally, other language in the statutory scheme also

supports the conclusion that a standard foreclosure

policy need not be adopted as a rule. Section 47-258

(m) (3) authorizes the board to vote on a unit-by-unit

basis on foreclosure, in which case the unit owners

would not receive rule-like notice and comment. Thus,

the legislature clearly did not intend that notice and

ability to comment were necessary in a foreclosure situation.

For all the foregoing reasons, I am not persuaded by

the majority’s analysis and would hold that a standard

foreclosure policy is an internal business operating procedure and therefore not subject to the act’s rule-making provisions.

I respectfully dissent.

1 General Statutes (Rev. to 2011) § 47-258 (m) provides: ‘‘An association

may not commence an action to foreclose a lien on a unit under this section

unless: (1) The unit owner, at the time the action is commenced, owes a

sum equal to at least two months of common expense assessments based

on the periodic budget last adopted by the association pursuantto subsection
(a) of section 47-257; (2) the association has made a demand for payment

in a record; and (3) the executive board has either voted to commence a

foreclosure action specifically against that unit or has adopted a standard

policy that provides for foreclosure against that unit.’’ (Emphasis added.)

Section 47-258 has been amended since the time of the events relevant

to this action. See Public Acts 2013, No. 13-156, § 1. Subsequent references

herein to § 47-258 are to the 2011 revision.

2 See footnote 2 of the majority opinion for a listing of other defendants

in this action who are not parties to this appeal.

3 Section 19.4 of the declaration provides in relevant part: ‘‘(a) The [a]ssociation has a statutory lien on a [u]nit for any assessment levied against that

[u]nit orfines imposed against its [u]nit[o]wnerfrom the time the assessment

or fine becomes delinquent. . . .

‘‘(c) Recording of this [d]eclaration constitutes record notice and perfection of the lien. No further recordation of any claim of lien for assessment

under this [s]ection is required. . . .

‘‘(g) The [a]ssociation’s lien may be foreclosed in like manner as a mortgage on real property. . . .’’

4 General Statutes (Rev. to 2011) § 47-258 provides in relevant part: ‘‘(a)

The association has a statutory lien on a unit for any assessment attributable

to that unit or fines imposed against its unit owner. . . .

‘‘(d) Recording of the declaration constitutes record notice and perfection

of the lien. No further recordation of any claim of lien for assessment under

this section is required. . . .

‘‘(j) The association’s lien may be foreclosed in like manner as a mortgage

on real property. . . .’’

5 By way of example, the majority argues that under my analysis, if one

of the rule-making provisions was incorporated into the declaration, notice

and comment would then not be required. It is clear to me, however, that

if an association were to make such a claim, it would be obvious that it

was trying to wrongfully circumvent the rule-making section, which requires

notice and comment for that subject matter. See footnote 7 of this opinion.

In contrast, there is no foreclosure provision language that requires notice

and comment.

6

In further support of its conclusion that a standard policy for foreclosure

must be adopted as a rule, the majority quotes the prefatory note of the

Uniform Common Interest Ownership Act of 2008 (uniform act), on which

our act was modeled, which provides that it ‘‘proposes new and considerable

restrictions on the foreclosure process as it applies to common interest

communities.’’ Unif. Common Interest Ownership Act of 2008, prefatory

note, 7 U.L.A. (Pt. 1B) 225 (2009). Nothing in this prefatory note, however,

compels the conclusion that the legislature intended that standard foreclosure policies must be adopted as rules. I agree that, together, all of the

procedures, criteria, and specific restrictions adopted in the act help protect

unit owners facing foreclosure. For instance, an association cannot bring

a foreclosure action unless the owner owes at least two months of fees

and the association has made a demand for payment. Nevertheless, the

comments of the uniform act placing similar restraints on foreclosure recognize that these special procedures ‘‘[t]aken together’’ would ‘‘respond in a

concise but responsible way to the widespread reports of abuses in this

field.’’ (Emphasis added.) Id., § 3-116, comment (7), p. 380.

7 General Statutes § 47-261b provides: ‘‘(a) At least ten days before adopting, amending or repealing any rule, the executive board shall give all unit

owners notice of: (1) The executive board’s intention to adopt, amend or

repeal a rule and shall include with such notice the text of the proposed

rule or amendment, or the text of the rule proposed to be repealed; and

(2) the date on which the executive board will act on the proposed rule,

amendment or repeal after considering comments from unit owners.

‘‘(b) Following adoption, amendment or repeal of a rule, the association

shall give all unit owners notice of its action and include with such notice

a copy of any new or amended rule.

‘‘(c) Subject to the provisions of the declaration, an association may adopt

rules to establish and enforce construction and design criteria and aesthetic

standards. If an association adopts such rules, the association shall adopt

procedures for enforcement of those rules and for approval of construction

applications, including a reasonable time within which the association must

act after an application is submitted and the consequences of its failure to act.

‘‘(d) A rule regulating display of the flag of the United States must be

consistent with federal law. In addition, the association may not prohibit

display, on a unit or on a limited common element adjoining a unit, of the
flag of this state, or signs regarding candidates for public or association

office or ballot questions, but the association may adopt rules governing

the time, place, size, number and manner of those displays.

‘‘(e) Unit owners may peacefully assemble on the common elements to

consider matters related to the common interest community, but the association may adopt rules governing the time, place and manner of those

assemblies.

‘‘(f) An association may adopt rules that affect the use of or behavior in

units that may be used for residential purposes, only to:

‘‘(1) Implement a provision of the declaration;

‘‘(2) Regulate any behavior in or occupancy of a unit which violates the

declaration or adversely affects the use and enjoyment of other units or the

common elements by other unit owners; or

‘‘(3) Restrict the leasing of residential units to the extent those rules

are reasonably designed to meet underwriting requirements of institutional

lenders that regularly make loans secured by first mortgages on units in

common interest communities or regularly purchase those mortgages, provided no such restriction shall be enforceable unless notice thereof is

recorded on the land records of each town in which any part of the common

interest community is located. Such notice shall be indexed by the town

clerk in the grantorindex of such land records in the name of the association.

‘‘(g) An association’s internal business operating procedures need not be

adopted as rules.

‘‘(h) Each rule of the association must be reasonable.’’

8 The majority appears to conclude that § 47-261b sheds no light on what

is a rule as the majority fails to conduct the previously discussed analysis

using § 47-261b. See Hartford/Windsor Healthcare Properties, LLC v. Hartford, 298 Conn. 191, 198, 3 A.3d 56 (2010) (‘‘[i]n determining the meaning

of a statute . . . we look not only at the provision at issue, but also to the

broader statutory scheme to ensure the coherency of our construction’’

[internal quotation marks omitted]). I would conclude, however, that the

legislature intended that any policies or procedures that relate to the matters

described in subsections (c) through (f) of § 47-261b must be adopted by

rule. Indeed, the majority does not contend otherwise. Thus, by negative

implication, the statute sheds light on the legislative intent regarding the

types of policies and procedures that need not be adopted as a rule. See

General Statutes § 47-261b (g). Contrary to what the majority suggests, this

look to the broader statutory scheme provides a limiting principle to the

literal interpretation of a ‘‘rule,’’ which is far less broad than those the

majority proposes.