A lot labelled “Community Property” is not the owner’s alone
A lot labelled “Community Property” is not the owner’s alone
2026-09-19 · Vermont · Courts
A Vermont subdivision plan labelled one lot “Community Property” instead of numbering it. Decades later, that label is doing legal work its drafters never spelled out.
Mark Wilson et al. v. Gegham Artsruni et al., No. 23-CV-02924, Vermont Superior Court, Rutland Unit (Burke, J.), ruling on cross-motions for summary judgment signed May 22, 2025.1 A trial-court decision, not binding precedent.
The facts
Cricket Hill in Killington was created by a recorded Declaration of Protective Covenants, Restrictions and Reservations running with the land and enforceable by any lot owner against any other. An unnumbered parcel of roughly 4.05 acres appears on the recorded plans labelled by name rather than number. Residents have long used it — fishing, walking, bonfires, tents, ponds. A later owner obtained wastewater and Act 250 amendments to build on it.
The holding
Partial summary judgment for the plaintiffs: “Cricket Hill is a general-plan development in which residents of the numbered lots depicted in its recorded plans have some right to use the Community Property, and the owners of the Community Property are correspondingly restricted from developing the lot for their private use in a manner that interferes with the community use of the lot.”
And then the sentence that limits it
The scope of the community right — and therefore how much development it forbids — remains a disputed fact for trial. And, “consistent with the rule of construction that the scope of a restriction should be resolved in favor of free use”, the court noted the scope “may be so minimal as to permit some or all of Defendants' proposed development.”
So the residents won the existence of the right and have not yet won anything it protects.
Vermont's free-use canon, stated plainly
This is the interpretive rule that decides Vermont covenant cases and that association boards consistently underestimate. Where a restriction's reach is uncertain, Vermont resolves the uncertainty against the restriction and in favour of the landowner's free use.
It is the same instinct visible across the state's recent decisions. A declaration obliging a homeowners association to pave, plow and sand does not imply a duty to maintain the bridges the road crosses. Definitions from unrelated statutes do not import. Courts “may not insert terms into an agreement by implication”. Ambiguity runs against the drafter.
An implied servitude survives that canon. It does not emerge from it large.
A companion ruling on the other side of the same instinct
In Brian McKenzie et al. v. Quintin Point Condominium Association, No. 24-CV-04320, Grand Isle Unit (Spero, J.), decided April 10, 2026, unit owners claimed an express, prescriptive or implied easement to run a driveway across a strip of association land.2
The association won on prescription — permissive use by predecessors broke hostility, so there was no tacking to reach the 15-year period, and the only unpermitted uses were confronted, the later one by a formal Notice Against Trespass. It won on implied easement by grant, which failed the third element of Chevalier v. Tyler, 118 Vt. 448, 450–51 (1955): no evidence the common owner used the strip for vehicular access before the 1985 conveyance, and no plat showing a driveway there.
The reasoning worth carrying forward: the 1996 condominium declaration was itself evidence of the understood means of access, because it provided for access to that unit by a different route. A declaration is a record of what the parties thought the arrangement was.
What both cases tell a Vermont board
Recorded plans are substantive. A parcel labelled “Community Property” on a plan, used communally for decades, generated an enforceable restriction on its owner without a single covenant saying so.
Permission defeats prescription, but only if it is recorded somewhere. The association in McKenzie prevailed because it could show its predecessors permitted the use and that later uses were confronted. A board that tolerates an encroachment without documenting that it is tolerating it is building the other side's case.
What the declaration says about a parcel's purpose is what a court construes. A label on a recorded plan generated a restriction in Wilson, but an implied one of uncertain scope. Silence in Vermont is resolved in favour of free use, which cuts both ways depending on who owns the parcel.
What to watch next
Wilson has not been tried. The trial will decide the scope of a right the court has already held exists, and that is the part with the practical answer in it.
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