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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough

- s outhern judicial district

No. 2015

- 0573

THOMAS M. BENOIT & a

.

v.

JOSEPH A. CERASARO, TRUSTEE OF THE JOSEP H A. CERASARO

REVOCABLE TRUST & a

.

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

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

orally), for the plaintiff s

.

Primmer Piper Eggleston & Cramer PC , of Manchester ( Matthew J.

Delude on the brief and orally), for defendant s Ronald N. and Rita A. Delude

.

DALIANIS

, C. J. The plaintiffs, Thomas M. Benoit and Kathleen A. Nawn

Benoit, appeal from an order of the Superior Court ( Colburn , J.) granting the summary judgment motion filed by defendants Ronald N. and Rita A. Delude, and denying the plaintiffs’ cross

- motion for sum mary judgment

. We affirm.

I. Facts

The summary judgment record reflects the following pertinent facts. In 1974, a developer created plans for the Profile Estates Subdivision2

(subdivision)

, a development in Merrimack. The plans, recorded in the

Hills borough County registry of deeds, created 70 lots and a seven

- acre parcel

of “Common Land for Profile Estates, Phases I and II ” (Common Land) (capitalization omitted)

. The developer also recorded a “Declaration of Covenants” for the subdivision (Declarati on). According to the Declaration, the developer desired to “create . . . a residential community with permanent open spaces and other common facilities for the benefit of [that] community.” With the exception of five lots, all of the lots, including the Common Land, are subject to the Declaration. The developer included reference to the Declaration in each deed conveyed to the original purchaser of a lot in the subdivision.

The Declaration provides that all of the lots subject to it “shall be held,

tr ansferred, sold, conveyed and occupied subject to the covenants, restrictions, easements, charges and assessments” set forth therein . The Declaration requires each record owner of the lots subject to it to join the “PROFILE

ESTATES HOMEOWNERS ASSOCIATION” (Association)

. The Association “is to be formed by the Owners for the purpose of mai ntaining and administering the

Common [ Land] and facilities thereon, administering and enforcing the restrictions, and collecting and disbursing the assessments and charg es.” The developer “ may retain the legal title” to the Common Land until the developer is of the opinion that the Association “is able to maintain the same,” but “must convey legal title to the Association when fifty

- one percent (51%) of the Lots

have bee n sold.” The cost of maintaining the Common Land “shall be borne by the [d]eveloper or its successors in title until the transfer of said Common [Land] to the Association and thereafter the cost of maintenance shall be borne by said Association.”

Each r ecord owner of the properties subject to the Declaration is given “a right and easement of enjoyment in and to” the Common Land, “and such easement shall be appurtenant to and shall pass with the title to every lot.”

The Common Land is “restricted to recr eational, conservation and park uses for

all of the Owners” and no structures shall be erected on the Common Land “except as incident to said uses.”

The Declaration provides that the restrictions contained in it

s hall run with, and bind the land, and sh all inure to the benefit of and be enforceable by the Association, or the Owner of any land subject to this Declaration , their respective legal representatives, heirs, successors, and assigns, for a term of ten (10) years from the

date this Declaration is recorded, after which time said restrictions shall be extended for successive periods of ten (10) years unless an instrument signed by the then Owners of two

- thirds (2/3) of the Lots has been recorded, agreeing to change said restrictions in whole or in pa rt.3

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

All of the lots in the subdivision were subsequently sold

, but the

Association was never formed

, and the developer retained title to the Common

Land

. The developer , however, failed to pay the property taxes and the

Common Land was sold at a tax sale in August 1979 to R. Robert Gaumont,

Jr

. , who owned and lived in L ot 51 in the subdivision

, adjacent to the Common Land. Gaumont recorded the tax sale deed in September 1981.

In August 2001, Gaumont sold Lot 51 to the plaintiffs by warranty deed

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

In July 2014, over the objections of several lot owners in the subdivision, the plaintiffs obtained a variance to build a single

- family residence on the

Common Land. In January 2015 , the plaintiffs brought a petition against the

residents of the subdivision seeking: (1) a declaratory judgment that the Declaration is unenforceable; (2) an order that they have acquired title to the Common Land “free and clear of the Declaration through adverse possession”; and (3) to the extent that the Declaration is deemed enforceable, an order requiring the defendants to form the Association, purchase the Common Land from the plaintiffs “at its fair market value,” and reimburse them for their “out

of

- pocket expenses . . . , including real est ate taxes.”

Two residents, t he defendants before us

, moved for summary judgment

“on behalf of all” of the defendants on the plaintiffs’ claims, and t he plaintiffs

cross

- moved for summary judgment on their request for a declaratory judgment. The trial co urt granted the defendants’ motion for summary judgment and denied the plaintiffs’ cross

- motion, and concluded that “[b]ecause the undisputed material facts and the applicable law apply equally

to the [plaintiffs’] claims asserted against all of the other [defendant]

- lot owners, they are likewise entitled to summary judgment.” The court subsequently denied the plaintiffs’ motion for reconsideration, and this appeal

followed.

II. Standard of Review

“In reviewing the trial court’s rulings on cross

- motion s for summary judgment, we consider the evidence in the light most favorable to each party in its capacity as the nonmoving party and, if no genuine issue of material fact exists, we determine whether the moving party is entitled to judgment as a

matter of law.” Bovaird v. N.H. Dep’t of Admin. Servs. , 166 N.H. 755, 7584

(2014) (quotation omitted). “If our review of that evidence discloses no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law, then we will affi rm the grant of summary judgment.” Id

. (quotation omitted). “We review the trial court’s application of the law to the

facts de novo .” Id . (quotation omitted).

III. Enforceability of the Declaration

T he plaintiffs argue that the trial court erred in ruling that the

Declaration is enforceable. The y assert that the tax sale extinguished the

Declaration: (1) under the “tax assessment theory ” ; (2) because the Association was never formed and rights under the Declaration never vested; and (3) upon default of redemption by the Association. The trial court considered, and rejected, each of these arguments, as do we.

“ O rdinarily, a tax sale does not divest easements charged on the property

sold.” Gowen v. Swain , 90 N.H. 383, 387 (1939) (quotation omitted) ; see Marshall v. Burke , 162 N.H. 560, 564 (2011) ( holding that a tax sale does not extinguish prescriptive easements that have ripened into vested property rights prior to recording of the tax deed); see also Buchholz v. Waterville Estates

Ass oc. , 156 N.H. 172, 175 (2007) ( concluding that condominium covenants

that r u n wi th the land survive a tax sale); c f

. Burke v. P i erro , 159 N.H. 504,

514

- 15 (2009) (whe n 20

- year prescriptive period had not run before t o wn acquired title to the lot, the tax sale created a new title).

The plaintiffs acknowledge this case law . N onetheless, relying upon cases from other jurisdictions , the y first argue t hat

, in this case

, we should apply the “tax assessment theory” and conclude that the tax sale extinguished

the easements because “the value of the easements and restrictions has never been assessed against the dominant estates,” and the Common Land “has always been assessed at fair market value as a buildable lot.”

We a gree with the trial court that the tax sale did not extinguish the Declaration as a matter of law. We also agree with the court’s conclusion that,
pursuant to Gowen and Marshall , “[w]hether or not the assessors accurately

assessed the dominant and servien t estate[s’] value is immaterial, because it is presumed that assessors take into account the effect restrictions have on the valuation of property.” W e recognized in Gowen that “[p]resumably assessors take into account this effect of easements on value i n making their appraisals.”

Gowen , 90 N.H. at 387. “[I]f, acting in ignorance of the existence of an easement, they overvalue the servient estate, the mistake is correct i ble by abatement proceedings unless circumstances exist which render abatement inequ itable.” Id

. (citation omitted). Thus, “ w hile assessors are presumed to
take account of the impact of easements on the value of properties, the practical reality is that the actual burden of insuring that this occurs is placed5

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

at 566

.

Second, t he plaintiffs argue that the tax sale extinguished the Declaration because the Association was never formed and rights under the

Declaration never vested. The y assert that under the language of the Declaration, the Declaration was “subject to” the express condition precedent that title to the property was supposed to be owned by the Association

, but

because the owners never elected to form an Association , “[the defendants’] right to enforce the easements and restrictions had never vested, and the tax sale extinguished the Declaration.” (Quotation omitted.) The defendants

counter that considering the language of the Declaration as a whole, it “makes

clear that its easements and restrictions vested upon recordation and therefore

survived the tax sale.”

Under its plain language, the Declaration vested upon being recorded in the registry of deeds in 1974. The Declaration states that the Common Land

“ is and shall be held . . . subject to the covenants, restrictions, easements, charges and assessments” as set forth therein. Th ose restrictions “shall run with, and bind the land, and shall inure to the benefit of and be enforceable by the Association, or the O wner of any land subject to this Declaration . . . for a term of ten (10) years from the date this Declaration is recorded , after which time said restrictions shall be extended for successive periods of ten (10) years.” ( Emphas e s added

. )

In addition, rejecti ng the plaintiffs’ argument that the Declaration creates a condition precedent

— the creation of the Association and transfer of legal

title to it

— the trial court reasoned that “reading the document as a whole, it is apparent that the Declaration contemp lated the creation of the Association, and transfer of legal title to it, as events that would occur, if at all, after the

Declaration was recorded.” As th e trial court correctly noted

, “[i]ndeed the Declaration anticipates the possibility that less than 51% of the Lots would be sold, in which case the Developer is not required to transfer legal title to the Association but would be, however, responsible for ” the cost of maintenance of

the Common Land . M oreover, the trial court reasoned, “in the absence o f an Association, lot owners are permitted to enforce the Declaration.”

We conclude that, read in their entirety, the easements and restrictions set forth in the Declaration vested upon being record ed in the registry of deeds

and , therefore, the Declaration was not extinguished by the tax sale that took place five years later

.

Th ird, the plaintiffs argue that the tax sale extinguished the Declaration because the defendants, having received actual and constructive notice of the tax sale, failed t o exercise their right of redemption pursuant to RSA 80: 32 ( 2012 ). However, because as a matter of law the tax sale did not extinguish the6

Declaration, there were no interests for the defendants to redeem and

, thus, redemption is not applicable . The plai ntiffs argue that because the defendants’ rights in the Common Land “are derivative of their ownership of the entire fee interest in the Property, as opposed to, a mere easement

, ” “[u]pon default of redemption, the tax sale extinguished [the defendants’] o wnership rights in the Property, and their corresponding rights under the Declaration were equally extinguished

. ” T hese arguments , however, were not raised in the trial court

. A ccordingly

, we decline to address them on appeal. See Dukette v. Brazas , 166 N.H. 252, 255 (2014) ( explaining that parties generally may not have judicial review of matters not raised before the trial court).

IV. Laches

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

“Laches is an equitable doctrine that bars litigation when a potential plaintiff has slept on his rights.” Appeal of Prof’l Fire Fighters of Hudson , 167 N.H. 46, 57 (2014) (quotation omitted). “Laches , unlike limitation, is not a

mere m atter of time, but is principally a question of the inequity of permitting

the claim to be enforced

— an inequity founded on some change in the conditions or relations of the parties involved.” Id

. (quotation and ellipsis omitted). “Because it is an equi table doctrine, laches will constitute a bar to suit only if the delay was unreasonable and prejudicial .” Id . (quotation omitted). “The trial court has broad discretion in deciding whether the circumstances justify the application of laches; we will not overturn its decision unless it is unsupported by the evidence or erroneous as a matter of law.” Village Green Condo. Ass’n v. Hodges , 167 N.H. 497, 505 (2015).

Based upon the evidence presented, t he trial court found that

at no time before July of 2014, when the [plaintiffs] received a variance for the Common Land, did the [defendants] become aware of any misconduct by the [plaintiffs] that would require them to exercise and enforce their rights under the Declaration. The misconduct necessary to place the [defendants] on notice would unavoidably involve activity that was contrary to the restrictions and rights set forth in the Declaration. Despite their differences, the [plaintiffs’ ] and [ defendants’ ] affidavits make clear that nothing was ever built or developed on the Common Land in violation of the

Declaration. The evidence shows that the Common Land has remained unchanged since the [plaintiffs] purchased it. Althoug h the [plaintiffs] alleged that [the Common Land] has never been7

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

(Citations omitted

. ) Accordingly, the trial court concluded that the plaintiffs

“ ha ve not met their burden of showing that the [defendants] became aware of the misconduct and then slept on their rights; rather, the undisputed facts

show that the del ay was merely a result of the [defendants’] lack of awareness.”

Based upon our review of t he record

, we conclude that the trial court’s findings are supported by the evidence and are not erroneous as a matter of

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

T he plaintiffs also argue that the trial court failed to take al l reasonable inferences of fact in their favor, specifically as to Gaumont’s statement in his affidavit that he bought the Common Land “to ensure it remained undeveloped

common land for the enjoyment of

. . . the other residents.” The plaintiffs

assert th at the only reasonable inferences that can be drawn from this statement are that Gaumont “believed the tax sale extinguished the Declaration,” and that Gaumont “believed the other [r] esidents had no right to

use the [Common Land] after the tax sale.” However, t he trial court specifically

addressed this argument when it denied the plaintiffs’ motion for

reconsideration. The trial court correctly stated that the plaintiffs’ argument is “directly contradicted by

. . . Gaumont’s affidavit. Assuming

. . . Gaumont’s subjective beliefs are relevant, he stated in his affidavit that he purchased the [Common Land] subject to all easements and c ovena nts. Moreover, a reasonable inference may be drawn from . . . Gaumont’s affidavit that his purchase was to furthe r ensure the [subdivision] residents’ ability to use the [Common Land].”

V. Conveyance to the Association

T he plaintiffs argue that the trial court erred when it ordered the

d efendants to form the Association and the plaintiffs to convey the property to

the Association for no consideration. They assert that “New Hampshire law is clear that the nature of the title conveyed through a tax sale is that of fee simple

, ” but that “[t]he question of whether or not an easement survives a tax sale is a wholly different issue than whether or not the title that was conveyed by the tax sale was in fee simple or that of a defeasible fee by virtue of a8

covenant to convey.” Thus

, according to the plaintiffs, “the affirmative covenants contained within the Declaration which impose obligations upon them to maintain and convey the [Common Land], without some corresponding reciprocal benefit, must have been extinguished by the tax sa le.” The trial court rejected this argument. Taking the plaintiffs’ argument as asserting that the court “implicitly determined their title to the [Common Land] was a defeasible fee and not held in fee simple,” the trial court stated that it “made no

suc h determination. ” Rather, it “ ordered the [plaintiffs] to transfer the [Common Land] based on the Declaration’s requirement to convey it after more than 51% of the [subdivision] properties were sold. Therefore, [the plaintiffs’]

title status was not rele vant.”

In addition, the plaintiffs argue that t he trial court’s order constitutes “an unconstitutional taking without just compensation in violation of Part 1, Article 12 of the New Hampshire Constitution and the Fifth and Fourteenth

Amendments to the Co nstitution of the United States.” The trial court rejected

th is argument, noting that the plaintiffs “did not develop [it] beyond a conclusory statement and failed to cite any authority for their position.” On appeal, the plaintiffs have likewise failed to develop this argument sufficiently for our review and, accordingly, we decline to address it. See Lennartz v. Oak

Point Assocs. , 167 N.H. 459, 464 (2015).

VI . Equitable Relief

The plaintiffs argue that the trial court erred in the exercise of its

e quitable powers in failing to craft a n equitable remedy. They assert that “[u]nder the unique circumstances of this case,” fairness requires that

, in addition to ordering that the Association be formed and hold title to the Common Land, the Common Land should be purchased from them by the residents of the subdivision at its fair market value and the plaintiffs

reimbursed for all of their out

- of

- pock et expenses relative to the Common Land, including real estate taxes.

We review the trial court’s decision whether to grant equitable relief for

an unsustainable exercise of discretion. Conant v. O’Meara , 167 N.H. 644, 649 (2015). In doing so, we deter mine “whether the record establishes an objective basis sufficient to sustain the discretionary judgment made.” State v. Lambert

, 147 N.H. 295, 296 (2001). “The court has broad and flexible equitable powers which allow it to shape and adjust the precise relief to the requirements of the particular situation.” Chase v. Ameriquest Mortgage Co. , 155 N.H. 19, 24 (2007) (quotation omitted). “A court of equity will order to be done that which in fairness and good conscience ought to be or should have been don e. It is the practice of courts of equity . . . to administer all relief which the nature of the

case and facts demand.” Id . (quotation omitted). The party asserting that a trial court order is unsustainable “must demonstrate that the ruling was9

unre asonable or untenable to the prejudice of his case.” Foley v. Wheelock

, 15 7 N.H. 329, 332 (2008).

The trial court determined that the plaintiffs “are not entitled to the equitable relief they seek because the Declaration prohibits it.” The

Declaration provides that the cost of maintenance of the Common Land “shall be borne by the [d] eveloper or its successors in title until the transfer of said Common [Land] to the Association and thereafter the cost of maintenance shall be borne by said Association.” As t he trial court explained :

[ i ] t is undisputed that the [plaintiffs] are the D eveloper’s successors

in title and that the Association was never formed. It follows that

the [ plaintiffs] have been, and remain responsible for, the “ cost of

maintenance ” of the Common Land until such time as the Association is formed. Also, under the terms of the Declaration, the [defendants] are not required to purchase the Common Land deed from the [plaintiffs]; rather, the [plaintiffs] must “convey legal

title” to the Association.

Furthermore, the trial court reasoned that the plaintiffs’ “ own conduct cuts against the equitable relief they seek.” “ W hen equitable as distinguished from legal relief is sought, equitable as distinguished from legal defenses have

to be c onsidered.” Nashua Hosp ital v. Gage , 85 N.H. 335, 343 (1932) (quotation omitted)

. “The conduct of the plaintiff may disentitle him to relief; his acquiescence in what he complains of or his delay in seeking relief may of itself be sufficient to preclude him from obtaining it.” Id

. (quotation omitted).

The undisputed evidence supports that the Declaration was recorded in the registry of deeds when the plaintiffs purchased both Gaumont’s property

and the Common Land. Therefore, the plaintiffs purchased the Common Land

with constructive notice of the easements and restrictions encumbering it. See C F Invs. v. Option One Mortgage Corp. , 163 N.H. 313, 316 (2012) ( explaining

that “properly recorded instruments are deemed to give notice to prospective purchasers of any outstanding claims against property”). In addition, the trial

court reasoned that

[m] ore significantly, not only does the [plaintiffs’] deed for . . . Gaumont’s property . . . specifically reference the Declaration, the [plaintiffs] als o purchased the seven

- acre Common Land by way of quitclaim deed for less than $100. Such a small cost for such a large piece of real estate should have aler t ed the [plaintiffs] to the restrictions and easements placed on the Common Land. Despite knowledg e of the Declar ation, the plaintiffs paid taxe s on the Common Land for thirteen years without complaint. Only after seeking a variance to build on the property, to which several lot10

owners protested, did they seek to quiet title to the Common Land

or equitable relief in the form of compensation.

“[O]ur task is not to determine whether we would have found differently

. . . .” In re Adam M. , 148 N.H. 83, 84 (2002). Our only function on review is to determine whether a reasonable person could have rea ched the same

decision as the trial court on the b asis of the evidence before it. See id

. We conclude that the record establishes an objective basis sufficient to sustain the discretionary judgment made. See Lambert , 147 N.H. at 296. Accordingly, the plaintiffs have failed to establish that the court’s order constitutes an

unsustainable exercise of discretion.

VI I . Tax Abatement

The plaintiffs argue that the trial court erred when it concluded that they

should have obtained a tax abatement when “th ere was a complete absence of evidence or argument submitted to the trial court that the [plaintiffs] would, in fact, have been entitled to a tax abatement.” We disagree with the plaintiffs’

characterization of the trial court’s order. The trial court di d not conclude that the plaintiffs should have obtained a tax abatement. The plaintiffs argued that the tax sale extinguished the Declaration because the value of the easements

and covenants were neither subtracted from the Common Land nor assessed

as par t of the dominant estates of the residents of the subdivision. In addressing this argument, the trial court simply noted that New Hampshire law is that any mistake on the part of the assessors in overvaluing the servient estate is correctable by abatement proceedings, “unless circumstances exist which render abatement proceedings inequitable.” (Quotation omitted.) Assuming without deciding that the Common Land was overvalued and the assessors failed to take into account restrictions encumbering it, the t rial court found that the plaintiffs knew of the easements and covenants because they were recorded and cited in the plaintiffs’ deed to lot 51. The court also found that the plaintiffs knew or should have known that the Common Land was subject to the eas ements and covenants because they purchased it for less than $100 by a quitclaim deed. Therefore, the trial court concluded that “it is beyond dispute that these circumstances are not such that would render abatement proceedings . . . inequitable.” Indee d, the trial court underscored in its order denying the plaintiffs’ motion for reconsideration that their “ actual success in abatement proceedings is irrelevant to the Court’s decision. After concluding that the Declaration was not extinguished by the tax sale, the Court merely noted that the proper avenue to address an overvaluation of property burdened by covenants is a tax abatement.”

Affirmed

.

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