Plaintiffs are property owners in what were originally three separate planned communities known as Mystic Lands. Defendants are the developer/declarant and its sole shareholder, Shinitzky. In October of 2006 the Plaintiff and his wife entered into a contract with declarant to purchase Lot 28 in Mystic Ridge. The Property Information Sheet stated “the streets throughout Mystic Ridge are private and shall be maintained by the … Association. The initial capital expense for the streets, including the asphalt, shall be bourne (sic) by the Developer.” Shinitzky said this statement represented the intention of the Developer and that other similar representations meant “asphalt paved roads.” However the deed described the lot by reference to the plat which stated “ALL INTERIOR ROADS ARE 14’ GRAVEL.” Developer did pave some of the roads in Mystic Ridge as the development progressed, but in 2013, for the first time, Shinitzky stated in a Property Disclosure Statement that the roads “would be gravel.”
In 2015 Plaintiffs filed suit “for judgment declaring the period of declarant control had expired and injunctive relief.” A jury held that the purchase contract required the Developer to pave the roads and that Developer had breached the contract. The trial Judge granted Plaintiff’s motion for specific performance requiring Developer to pave the roads. Developer appealed.
Developer literally raised what seems like every possible defense, including (1) there was no valid contract to pave the roads; (2) the statute of limitations had passed, (3) novation, (4) estoppel, (5) waiver (6) laches, and (7) acceptance of the deed barred the specific performance claim. Although the case involved other issues as well, including the calculation of the time that Developer could maintain control, in the end the Appeals Court affirmed the trial court judgment on both the breach of contract for failing to pave and for an injunction preventing Developer from further exercising declarant control.
- If you sign a contract stating that you will pave roads or that roads will be paved, people will hold you to your word, even if other documents say something to the contrary; and
- When you are the one who wrote the condominium documents and the Property Information Sheet, the inconsistencies will likely be interpreted against the drafter of the documents.