America Condominium Association v. IDC, Inc.

FLANDERS, Justice,

dissenting.

Most respectfully, and with the utmost regret for having to say so, I am of the opinion that the majority’s decision in this case repeatedly misinterprets the Rhode Island Condominium Act (act), G.L.1956 chapter 36.1 of title 34. It does so:

(1) By allowing the plaintiff condominium associations to maintain this lawsuit challenging the validity of amendments to a condominium declaration even though they failed to file this action until long after the one-year period for doing so expired under the applicable statute of limitations;

(2) By holding that individual unit owners — whose condominium associations were part of a master condominium association, but who were not entitled to elect the executive board of that master association or to vote on other master association matters — nevertheless were entitled to vote on proposed amendments to the condominium declaration for the master association, even though the act expressly provides that “[t]he rights and responsibilities of unit owners * * * apply in the conduct of the affairs of a master association only to those persons who elect the board of a master association.” Section 34-36.1-2.20(d); and

(3) By unjustifiably divesting defendants (collectively, IDC), of the three condominium units that they own in the GIS master condominium, and by judicially converting those units — including a unit *136 containing a multimillion-dollar commercial banquet facility and regatta club located on prime waterfront property — into property owned by individual condominium unit owners in other condominiums, merely because in 1994 IDC supposedly failed to exercise or extend its development rights in a technically proper manner when acting in its capacity as the declarant of the GIS condominium.

As amplified below, I believe that the majority’s erroneous holdings in this case stem from its efforts to advance what it believes to be the interests of “consumer protection” in connection with condominium developments such as this one. Proclaiming that the voting procedures used by the GIS master condominium association to adopt the challenged amendments to the GIS condominium declaration were “precisely the type of artifice or device that the [condominium] statute proscribes,” the majority overlooks the fact that the applicable condominium law expressly allowed the GIS master association to use such voting procedures and for IDC to acquire, develop, operate, and improve the GIS condominium exactly as it has proceeded to do in this case.

I

The Act’s One-Year Statute of Limitations Barred the Plaintiffs’ Claims Challenging the Validity of the 1994 Amendments to the GIS Condominium Declaration

IDC recorded the Fifth Amendment to the GIS declaration on December 29, 1994. The plaintiffs did not file this action challenging its validity until May 29, 1999, approximately four years and five months after the applicable one-year statute of limitations period expired. See § 34-36.1-2.17(b) (“No action to challenge the validity of an amendment adopted by the association pursuant to this section may be brought more than one year after the amendment is recorded.”).

Assuming, arguendo, that the parties’ tolling agreement — deeming this action to have been filed on December 1, 1997 — was valid and enforceable, it still would avail plaintiffs nothing because the stipulated filing date of December 1, 1997, occurred more than one year after IDC publicly filed the last of the challenged 1994 amendments to the GIS condominium declaration.

The majority’s opinion simply disposes of this one-year statute of limitations by declaring that actions challenging the validity of amendments that are alleged to be invalid ab initio are not subject to the one-year limitation period specified in the act for challenging the validity of amendments. As legal authority for this remarkable conclusion, the majority cites to our recent decision in Theta Properties v. Ronci Realty Co., 814 A.2d 907 (R.I.2003) (Theta), even though that case provides no support whatsoever for such a proposition.

Theta holds that service of process on a dissolved corporation after the statutory period for doing so had expired is void ab initio and that the period to accomplish such service of process cannot be extended by retroactive legislation enacted after the statutory period for initiating such service has expired. Theta, 814 A.2d at 913 . But Theta provides no support whatsoever for the proposition that claims challenging the validity of amendments to a condominium declaration, which are alleged to be void ab initio, are exempt from the applicable statute of limitations. Indeed, if Theta has any application whatsoever to this case— and it has none — it would be that, after a statutory period for suing a party has expired, any attempt to do so should be declared void ab initio and deemed of no legal consequence whatsoever — at least *137 when, as here, defendants have invoked this defense in their answer and vigorously argued it to the trial court and to this Court. Thus, based on Theta and on other cases holding that the expiration of an applicable statute of limitations is a valuable property right that cannot be revived on an ex post facto basis, plaintiffs’ attempt to sue IDC based on the alleged invalidity of the 1994 amendments should have been declared void ab initio.

I have great difficulty with the majority’s holding to the contrary on this point. Is not a claim alleging that an amendment to a condominium declaration is void ab initio a claim that challenges the validity of the amendment? Is not a claim alleging that an amendment is void because it was adopted in a procedurally invalid manner a claim challenging the validity of the amendment? If a claim that an amendment is void ab initio is not subject to the one-year period for filing claims challenging the validity of an amendment, then what type of claim challenging the validity of an amendment is subject to the one-year period?

Just to pose such questions is to expose the underlying problem with the Court’s holding that plaintiffs’ claims challenging the validity of amendments that are alleged to be void ab initio are exempt from the act’s one-year period for challenging the validity of amendments to condominium declarations.

But this is not simply a matter of logic and of interpreting statutes according to their plain meaning. The interests of basic fairness also argue in favor of applying the one-year statute of limitations period to bar these claims. Although plaintiffs were fully aware in 1994 of the fact that they needed to attack the validity of these amendments within one year of their recording, them board representatives voted in favor of the amendments while the associations sat on their hands until May 1999 without taking any legal action to invalidate them. In the interim, while they dawdled and while they obtained the benefit of the many thousands of dollars in condominium fees paid by IDC as the owner of three of these master GIS condominium units, IDC justifiably acted in reliance for years on the validity of the amendments in question. In its separate capacities as the declarant of the GIS condominium and as the owner of various condominium units on Goat Island, IDC sold condominium units, acquired ownership interests in units, approved budgets, maintained common areas, paid assessments, granted mortgages to banks, and committed millions of dollars toward building, opening, and operating the Newport Regatta Club on the premises of the north, or reserved, master unit of the GIS condominium.

Thus, even if the applicable statute of limitations had not expired many years before plaintiffs filed this lawsuit, the doctrine of laches would appear to estop them from challenging the validity of these amendments. So many changes in position have occurred — affecting so many people and so many financial institutions and so much invested capital — that it is grossly unfair and unjust for plaintiffs to be allowed to undo all that has happened at this project with respect to the property involved so long after their representatives voted in favor of the amendments and the GIS master association lawfully adopted them.

“So long as parties are in the same condition, it matters little whether one presses a right promptly or slowly, within limits allowed by law; but when, knowing his rights, he takes no steps to enforce them until the condition of the other party has, in good faith, become so changed that he cannot be restored to *138 his former state, if the right be then enforced, delay becomes inequitable and operates as an estoppel against the assertion of the right.” Pukas v. Pukas, 104 R.I. 542, 546 , 247 A.2d 427, 429 (1968) (quoting Chase v. Chase, 20 R.I. 202, 204 , 37 A. 804, 805 (1897)).

The majority counters this suggestion of laches by referring to the fact that IDC proceeded to build the Regatta Club on the north unit in 1998 — knowing that plaintiffs still might file a lawsuit at some later date that would challenge IDC’s right to do so as of December 1,1997. But even December 1, 1997 was more than two years after the one-year statute of limitations for filing such an action had expired and more than three years after the GIS master association adopted the amendments in question! Moreover, plaintiffs have not challenged the validity of the amendment that created the unit on which the Regatta Club sits and that vested IDC with ownership of that unit. Thus, even if the one-year statute of limitations did not bar plaintiffs’ claims, which it clearly did, I still would reverse and remand this case for trial to decide whether IDC so changed its position in reliance on the validity of the amendments that it would be inequitable to allow plaintiffs to maintain this lawsuit as if it had been filed on December 1, 1997.

II

Because the Voting Procedures Used to Adopt the 1994 Amendments to the GIS Condominium Declaration Were Valid, IDC Lawfully Extended Its Development Rights to December 31, 2015

In 1994, representatives of the five master units comprising the GIS condominium association attended GIS master association meetings at which they voted on and unanimously approved, inter alia, the Third, Fourth, and Fifth Amendments to the GIS condominium declaration. Three of these units were multi-unit condominiums governed by executive boards of the plaintiff condominium associations. Each of the plaintiff condominium associations, through its board representatives, received notice of the GIS master association meetings and voted in favor of the proposed amendments. Nevertheless, the majority holds that these amendments were invalid and void ab initio because the owners of individual sub-condominium units in the America, Capella, and Harbor Houses condominiums were not given any direct notice of or opportunity to vote on such amendments. Consequently, says the majority, IDC never lawfully extended its development rights for the GIS condominium beyond December 31, 1994, the date when they were scheduled to expire under the First Amended and Restated Declaration of Condominium, GIS.

The majority’s rationale for this holding is that each of the more than 150 individual owners of the condominium units located in the America, Capella, and Harbor House condominiums (the so-called sub-condominium owners) failed to receive individual notice or the individual opportunity to cast a direct vote on whether to adopt the challenged amendments to the GIS condominium declaration. But given the undisputable fact that none of these individual owners of sub-condominium units owned or controlled any of the GIS master units, and given that they were not entitled to elect the board of the GIS master association when those votes occurred— much less to vote on amendments to a different condominium declaration from the one in which they owned one or more units — this was scarcely remarkable, let alone an actionable violation of the act. What the majority chooses to ignore in its analysis of the votes on the 1994 amend *139 ments to the GIS condominium declaration is that the GIS condominium was organized as a master association, as § 34-36.1-2.20 of the act expressly authorized. As such, its five master condominium units composed a master condominium association whose representatives elected a master condominium executive board and held master association meetings at which, inter alia, they voted on and adopted amendments to the GIS condominium declaration. Thus, pursuant to § 34 — 36.1—2.20(d),

“[t]he rights and responsibilities of unit owners with respect to the unit owners’ association set forth in §§ 34-36.1-3.03 [executive board members], 34-36.1-3.08 — 34-36.1-3.10 [meetings, quorums, and voting] and 34-36.1-3.12 [conveyance or encumbrance of common elements] apply in the conduct of the affairs of a master association only to those persons who elect the board of a master association, whether or not those persons are otherwise unit owners within the meaning of this [act ].” (Emphasis added.)

In other words, in master associations such as the one created for the GIS condominium, “the rights of notice, voting, and other rights enumerated in the [a]et are available only to the persons who actually elect the [master association] board.” Commissioners’ Comment 5 to § 34-36.1-2.20(d) of the act. With respect to the GIS master association, those persons were IDC, the owner of two of the GIS condominium master units, and, in the case of the GIS master units consisting of the America, Capella, and Harbor House condominiums, a representative of each condominium association’s executive board, with each master unit’s representative being entitled to cast one undivided vote, weighted according to the size of the land area that each master unit encompassed. Such a representative voting arrangement for the GIS master condominium association and GIS master units is entirely consistent with and permitted by the act — especially given the fact that three of the GIS master units were themselves condominiums owned by multiple individual owners of units in these condominiums. Thus, § 34-36.1-3.10(a), entitled “Voting,” provides:

“If only one of the multiple owners of a unit is present at a meeting of the [condominium] association, that person is entitled to cast all the votes allocated to that unit. If more than one of the multiple owners are present, the votes allocated to that unit may be cast only in accordance with the agreement of a majority in interest of the multiple owners, unless the declaration expressly provides otherwise.” (Emphases added.)

Several points should be noted with respect to this provision. First, it expressly acknowledges the fact that voting does not have to proceed on a one-vote-per-unit basis, which the majority deems to be required. Rather, it contemplates that the condominium declaration may provide for the manner in which “votes [are] allocated to that unit.” Second, the act speaks to who is entitled to cast the votes allocated to multi-owner units in a given condominium, such as the three master units in the GIS condominium, (namely, the America, Capella, and Harbor Houses condominiums). Multiple sub-condominium unit owners owned these three master units of the GIS condominium when the votes in question were cast in 1994 at the GIS master association meetings in favor of the various amendments to the GIS declaration. Most significantly, given that more than one of the multiple unit owners of the America, Capella, and Harbor Houses master units were present at the challenged meetings of the GIS condominium association, “the votes allocated to that unit [by the declaration] may be cast only in accordance with the agreement of a *140 majority in interest of the multiple owners, unless the declaration expressly provides otherwise.” Section 34-36.1-3.10(a). (Emphasis added.) Here, the declaration expressly provided otherwise, stating that each master unit in the GIS condominium would be entitled to cast one undivided vote weighted according to the land area covered by each unit.

Thus, far from “evad[ing] the limitations or prohibitions of [the act],” which § 34-36.1-1.04 forbids declarants from doing, Globe Manufacturing, the original declar-ant of the GIS condominium declaration, was entitled by the act to prescribe a representative voting procedure for multiple unit owners of a single master unit in the GIS master condominium association. Indeed, the Commissioners’ Comments to § 34-36.1-1.04 specifically describe the voting requirements in § 34-36.1-2.20 (master associations) as one of the provisions in the act that can be varied by the declaration. Even § 34-36.1-2.17(d), providing that amendments to declarations that enlarge special declarant rights require the unanimous consent of the unit owners, contains an exception allowing contrary voting arrangements “to the extent expressly permitted or required by other provisions of this [act].” Section 34-36.1-2.20, pertaining to the voting requirements for master associations, is one such provision.

For these reasons, the individual subunit owners of the plaintiff condominium associations were not entitled to cast individual votes on amendments to the GIS declaration. What the majority fails to acknowledge is that, even though

“[a] variety of sections [of the act] enumerated in subsection [§ 34-36.1-2.20](d) provide certain rights and powers to unit owners in their dealings with their [condominium] association,][i/» the affairs of the master association, however, it would be incongruous for the unit owners to maintain those same rights if those unit owners were not in fact electing the master board. Thus, for example, the question of election of directors, meetings, notice of meetings, quorums, and other matters enumerated in those sections would have little meaning if those sections were read literally when applied to a master board which was not elected by all members of the condominiums subject to the master board. For that reason, the rights of notice, voting, and other rights enumerated in the [ajct are available only to the persons who actually elect the [master] board.” Commissioners’ Comment 5 to § 34-36.1-2.20(d). (Emphases added.)

Apparently finding the above-described incongruity no bar to extending such rights to other persons, the majority proceeds to accord voting rights in master associations such as GIS not just to the persons who elect the GIS master board, but also to each and every sub-condominium unit owner on Goat Island. In sum, then, the majority’s opinion pays no heed to the fact that, under the act, special voting rules apply to master condominium associations such as the one created for the GIS condominium. Sinking into the quicksand of voting provisions that are simply inapplicable under the act to master associations, the majority fails to acknowledge the existence of these master-association provisions and their related commentary, let alone the dispositive fact that the GIS condominium was organized as a master association. Instead, it proceeds to affirm the Superior Court’s invalidation of votes that were taken in complete accord with the act and with its voting provisions dealing with master condominium associations such as this one.

*141 In the end, only by ignoring the fact that, when the votes in question occurred in 1994, the GIS condominium was in fact organized as a master condominium association, comprising five different master units (three existing condominiums owned by multiple owners of individual units in these condominiums and two undeveloped parcels owned by IDC), can the majority conclude that the votes in question were void ab initio — even though the owners of individual units in different condominiums from the GIS condominium were not entitled by law to vote on these amendments to the GIS master declaration and even though the boards of the plaintiff associations cast their votes in favor of the amendments. 25

The trouble I have with the majority’s holding becomes clear with just a moment’s reflection upon the factual circumstances of this case:

• Under the provisions of the act and the relevant condominium documents, the owners of sub-condominium units within the America, Capella, and Harbor Houses condominiums never were entitled to cast individual votes on matters pertaining to the GIS condominium and its master association. Therefore, by what rationale or authority can they possibly be entitled to individual votes at master association meetings in connection with amendments to the declaration for the GIS condominium?

• The GIS condominium declaration did not create the units in the America, Capella, and Harbor Houses condominiums; rather, the declarations for plaintiffs’ separate condominium associations created them.

• Neither the act nor any condominium declaration ever afforded the sub-condominium unit owners any individual voting rights with respect to the GIS condominium, the GIS master condominium association, or the GIS condominium declaration. On the contrary, the relevant condominium documents and applicable provisions of the act always informed plaintiffs and any sub-condominium unit owners that they were not entitled to cast individual votes on GIS condominium and master association matters.

• Sub-condominium unit owners paid no condominium fees with respect to any such privileges that belonged to the persons who were entitled to vote on GIS master association matters.

If the majority were correct in its conclusion that the 1994 votes to amend the GIS declaration were void ab initio because more than 150 sub-condominium unit owners were entitled to a direct individual *142 vote thereon, then every vote taken by the GIS master condominium association for the last fourteen years — including every election that has been conducted, every budget that has been approved, and every amendment to the GIS declaration from day one — is also void ab initio. Ironically, because (according to the majority) the one-year statute of limitations does not apply to lawsuits asserting that amendments to condominium declarations were void ab initio, this means that only the original declaration for the GIS condominium — providing for the declarant’s development rights to expire in 2037 — remains intact, thereby mooting plaintiffs’ efforts to stymie IDC from developing the property it owns on Goat Island.

In sum, I would hold that IDC duly extended its development rights to the year 2015 with respect to the master units it owns in the GIS condominium because the 1994 amendments that extended those rights received the unanimous consent of the representatives of the GIS master unit owners, including the plaintiffs who were among “those persons who elect the board of [the GIS] master association.” Section 34-36.1-2.20(d). Thus, I would reverse the Superior Court judgment finding that their votes were void ab initio.

Ill

Even If Defendants’ Development Rights Had Expired in 1994, They Still Were Entitled to Construct Improvements on Their Three Units; In Any Event, There Is No Justification for Holding That the Expiration of a Declarant’s Development Rights Means That the Declarant Forfeits Its Ownership in Any Units That Were Subject to Such Rights to Other Unit Owners in the Condominium

Even if IDC’s development rights had expired in 1994, it was still entitled under the act to construct improvements within the three GIS condominium units that it owned. See § 34-36.1-2.11 (allowing unit owners to construct improvements to their units). In any event, there is no justification whatsoever for the majority’s holding that the expiration of IDC’s development rights means that it forfeited its fee simple ownership of those units that were the subject of such development rights and that legal title to such units should be transferred to the individual unit owners of plaintiffs’ condominium associations.

As unjustified and as bewildering as are the majority’s rulings on the validity of the amendments to the GIS declaration and on the timeliness of plaintiffs’ claims challenging their validity, by far the most egregious and unsupportable portion of the majority’s opinion concerns the draconian consequences it visits on defendants for not properly extending or exercising their development rights before they supposedly expired (as the majority now decrees in 2004) on December 31, 1994. Here we are, ten years down the road from the date when the majority says that IDC’s-devel-opment rights expired. The majority now holds that, because these rights expired in 1994, IDC — per the majority’s ipse dixit— no longer owns the north, south, and west master units, much less any improvements it constructed thereon, that are part of the GIS master condominium. In summarily divesting IDC of its Goat Island property, including the Regatta Club, one of Newport’s crown-jewel properties, without awarding it any just compensation — an action that can only be described as unwarranted — the majority has bestowed this award on litigants who are not entitled to such a remedy.

Even the trial justice could not bring herself to order the confiscatory relief that the majority now decrees. Moreover, the *143 explanations the Court proffers have no basis in the act.

The declaration is the fundamental legal document that establishes who owns what in a condominium. Even without the challenged amendments, the GIS condominium declaration always has provided that the master units in that condominium would be individually and privately owned and that this private ownership would be of a “permanent character” and not part of the condominium’s common elements. Indeed, the GIS declaration expressly excluded the GIS master units from its definition of what constitutes the master-common elements. Moreover, nothing in the act or in the GIS declaration permits one or more of the multiple owners of a master unit to confiscate another master unit owner’s property or units and convert them into master common elements at the condominium, let alone convert them into the private property of the other unit or sub-unit owners.

In this case, when IDC pm-chased Globe’s rights in the GIS condominium in 1994, it acquired not only the ownership of its two master units in that condominium, but also Globe’s contractual development rights as the declarant. Thus, even if IDC had lost all its contractual development rights because it failed either to exercise or extend them in a proper fashion, it still retained its ownership of the two master units that it purchased from Globe in 1994, plus the one it acquired in 1994 via the unchallenged Sixth Amendment to the GIS condominium declaration (namely, the north development unit). Consequently, it still possessed, under the act, the same right to construct improvements within the boundaries of those units that any other unit owner possessed. See § 84-36.1-2.11 (allowing unit owners to make “any improvements or alterations to * * * [the] unit that do not impair the structural integrity or mechanical systems or lessen the support of any portion of the condominium”). In this case, IDC’s three master units cover over 56 percent of the land within the GIS condominium.

The majority’s opinion conflates a de-clarant’s development right of “[a]dd[ing] real estate to a condominium,” § 34-36.1-1.03(11)(A), with a condominium unit owner’s right under § 34-36.1-2.11 to construct improvements or build any structures wholly within the boundaries of a single condominium unit. First of all, even if such improvements or alterations to the unit constituted the addition of real estate to the condominium, § 34-36.1-2.11 still allows a unit owner to do so. The fact that the unit owner may also be a declarant whose development rights have expired is irrelevant. Under the act, a unit owner is defined as “a declarant or other person who owns a unit.” Section 34-36.1-1.03(29). Thus, there can be no question that a declarant such as IDC can also be a unit owner under the act. Here, the GIS declaration defined an “owner” as “the De-clarant or other person or persons owning a master unit.” Thus, in its capacity as a unit owner and pursuant to § 34-36.1-2.11 and the GIS declaration, IDC was entitled to construct improvements on the units it owned even if it never had the right to exercise any development rights whatsoever.

Second, improving a unit by building on and within the unit does not add real estate to the condominium. Unlike most physical improvement projects, to exercise a development right a declarant must amend the declaration for the condominium because the exercise of such a right changes the legal rights and ownership interests of the other condominium-unit owners. See § 34-36.1-2.10. But an individual unit owner does not add real estate to the condominium itself merely by con *144 structing a building, a retaining wall, or other physical improvements within that unit’s existing real estate.

Thus, even though any existing buildings when a unit is created are part of the unit’s real estate, constructed additions, buildings, and improvements to a vacant parcel of property or to an existing structure do not constitute the addition of real estate to the condominium. The real estate area comprising the unit remains the same both before and after the improvements are constructed. Thus, the mere construction of a building or other improvements within a unit does not constitute the exercise of a development right because they do not add real estate to the condominium within the meaning of the act. Otherwise, every time a condominium unit owner remodeled a kitchen, put up a dividing wall, or enlarged a patio, he or she would be adding real estate to the condominium and therefore exercising a development right.

Significantly, the act grants to unit owners such as IDC the broad power to “make any improvements or alterations to his or her unit that do not impair the structural integrity or mechanical systems or lessen the support of any portion of the condominium.” Section 34-36.1-2.11(1). Although this unquestioned right to “make any improvements or alterations to his or her unit” is subject to the provisions of the condominium’s declaration and to other provisions of law (such as zoning and other municipal land-use requirements), in this case the GIS declaration expressly afforded to IDC and to every other owner of a master-condominium unit the right to “construct buildings and other improvements * * * within the boundaries of [them units].” In addition, the GIS public offering statement provided that “[a]ny * * * Owner of a Master Unit may make alterations or construct improvements within the boundaries of its Master Unit.” Thus, plaintiffs and the individual sub-condominium owners were notified in no uncertain terms that IDC, in its capacity as the existing and potential owner of several GIS condominium master units, reserved the right to construct “buildings and other improvements on any master unit * * * so long as the Declarant owns the Master Unit.”

In short, development rights are entirely separate and distinct from the rights of unit owners to build on and improve their individually owned units. Nevertheless, the majority confuses the right of a declar-ant to exercise reserved development rights in connection with a condominium— for example, by constructing improvements on land it does not own, by adding or taking away real estate from a condominium, or by creating additional units-— with the right of a unit owner (who can also be a declarant) to build upon and improve his, her, or its own individual and preexisting condominium units. Thus, the fact that a declarant’s development rights have expired — or, indeed, even if such rights never existed — has no bearing upon the fundamental right of individual condominium unit owners, including a declarant, to improve and build on their separately owned units.

In sum, an individual unit owner’s right to construct upon and improve that owner’s condominium unit does not constitute the addition of real estate to a condominium that would fall within the statutory definition of a development right. See § 34-36.1-1.03(ii)(A) (development rights defined, in part, as “any right or combination of rights reserved by a declarant * * * to * * * [a]dd real estate to a condominium”). The improvement to the interi- or of a particular existing condominium unit does not alter any common areas or affect the other unit owners’ ownership *145 interests in the condominium. Thus, subject to any limitations in the declaration and to applicable zoning and land-use laws, individual condominium unit owners possess the right to improve their property exclusively within the boundaries of the unit without reference to the existence or expiration of any statutorily defined or contractual development rights.

In this case, IDC’s construction of the Newport Regatta Club totally within the reserved area (that is, within the north master condominium unit) had no effect whatsoever on the voting rights, condominium fees, ownership interests, or any other legal rights of plaintiffs or any sub-condominium unit owners. It did not “add real estate” to the GIS condominium because the improvement was constructed entirely within the existing real estate of IDC’s north development unit. Similarly, construction of the Regatta Club did not create additional units, did not subdivide units, and it did not add or withdraw real estate from the GIS condominium. Rather, the number of units, the amount of land, and the area comprising the master and limited common elements within the GIS condominium remained the same after the construction of the Regatta Club as before. In any event, even if such an improvement could be construed to “add real estate” to the GIS condominium, in doing so IDC was not acting as a declarant but as the owner of the unit and thereby was entitled to improve its property as allowed by law and by the declaration.

Moreover, the rights of IDC to improve its master units were no different from the rights other condominium unit owners enjoy with respect to their units. Thus, for example, the owners of the units in the Harbor Houses condominiums have continually expanded, upgraded, and altered a majority of the buildings within their master condominium unit. They did so not by exercising any reserved development rights, but simply by acting in their capacity as owners of units that can be improved as the owners may desire, subject to the declaration and to other applicable land-use laws. Indeed, this is the very reason why Globe Manufacturing, in its capacity as the original declarant, structured the GIS condominium to require the owners of the unimproved condominium units to pay substantial taxes and condominium fees in perpetuity — way beyond the term of any development rights — -because the owners of these units were entitled to improve them as they saw fit, subject to applicable land-use law. Such a provision begs the question of why would any unit owner pay substantial condominium fees, based on land area, merely to hold title to unbuilda-ble vacant land?

Furthermore, it is hardly inconsistent with the act for a declarant such as Globe to have reserved development rights with respect to the individual condominium units that it owned and then sold to IDC. Thus, § 34-36.1-1.03(ll)(C) clearly indicates that a condominium unit in itself can be subject to development rights because such rights include the right to “[sjubdi-vide units or convert units into common elements.” Indeed, the development right for a declarant/owner to subdivide units or convert them into common elements can only be applied to a declarant who also owns existing condominium units. (It would be impossible to subdivide or convert a unit into a common element if the unit did not already exist). In any event, no provision in the act barred a declarant such as Globe and its successor, IDC, from reserving development rights with respect to an existing or newly created condominium unit.

For these reasons, I would hold that IDC possessed the right to alter and improve the master units it owned, including *146 the right to construct and operate the Regatta Club on the north master condominium unit, regardless of whether its development rights as a declarant expired in 1994.

But the majority decrees that “when the associated development rights expired, so also did all of the declarant’s rights in the master units.” This is simply not so, however, because, even if the development rights expired, IDC still owned the units in fee simple. 26 Yet the fact of IDC’s ownership gives the majority no pause. Accordingly, having declared that IDC has no development rights with respect to the units it owns, it then decrees that, “the hearing justice should have declared that title to the disputed property vested in the individual unit owners in fee simple.”

What could be the possible justification for this divestiture of defendants’ property, taking from them the condominium units they own at the GIS condominium and transferring them to non-parties; to wit: the individual sub-condominium unit owners in the America, Capella, and Harbor Houses condominiums? Does all this follow, as night follows day, merely because IDC’s development rights expired in 1994? The majority suggests that “defendants assert that the condominium is composed of separate lots.” But defendants make no such assertion. Rather, they assert only that which is true: namely, that, after the 1994 amendments, the GIS condominium was comprised of six separate condominiums units, of which they indisputably owned three of them. Thus, even though, for title purposes, the GIS condominium may only contain “one legal lot,” as the majority suggests, in reality and under law the property comprising the GIS condominiums was divided into separate condominium units, and these separate units have been the legal and factual reality on this Goat Island property since Globe Manufacturing first created the GIS condominium.

The majority then simply asserts that although “[t]he master declaration granted the declarant a limited period to develop certain parcels of land within the condominium, * * * it could not convey title to the air space if the development rights were not exercised.” Why not? Since a declarant can also be an owner of the unit, and since units can consist of air spaces, 27 why cannot a declarant also own such units within the condominium, with or without associated development rights? And why cannot the master declaration convey title to such units to the declarant, regardless of whether development rights ever existed and irrespective of whether they were or were not exercised? Even plaintiffs did not challenge the Sixth Amendment to the GIS declaration, pursuant to which IDC became the owner of the north development unit.

*147 Although it acknowledges that the unchallenged Sixth Amendment to the GIS condominium declaration converted the land under the reserved area or north unit into a limited common element and vested ownership of the unit itself in IDC, the majority, paradoxically, concludes that “the entire parcel * * * was common area from the time the master [declaration] was recorded.” See DiBiase v. Jacobowitz, 43 Mass.App.Ct. 361 , 682 N.E.2d 1382, 1385 (1997). But DiBiase is totally inapplicable to this situation because, here, the development rights were not attached to a master common area, as was the case in DiBiase, 682 N.E.2d at 1384 , but to separate, privately owned condominium units; to wit: the south, west, and north development units. Thus, even if IDC’s development rights expired, its ownership of these condominium units continued without interruption or abatement — at least until the majority’s decision in this case. In DiBiase, 682 N.E.2d at 1383 , when the development rights expired, all that remained was a common element. Here, however, what remains are undeveloped privately owned units that are still owned by IDC on top of land that was exclusively reserved for IDC’s use. Unlike DiBiase , these areas constitute privately owned condominium units and not common areas. Indeed, even the land beneath these units is a limited common area reserved exclusively for IDC’s use. Thus, contrary to the majority’s conclusion, even if IDC’s development rights with respect to those units had expired, its ownership rights in the master units, including its right to improve and alter them under § 34r-36.1-2.11, never expired. Thus, the Court has no basis in law or equity to transfer these units to other individual unit owners without awarding any just compensation to IDC for such a massive taking of its private property.

In sum, there is no justification whatsoever for the majority to confiscate the real estate constituting these units from IDC and then to order that its ownership and title to these units must be transferred to the individual owners of sub-condominium units in the America, Capella, and Harbor Houses condominiums. Given the multimillion-dollar value of the Newport Regatta Club alone, this unprecedented judicially mandated forfeiture, condemnation, and transfer of property to people who are not entitled to it, and without payment of any just compensation to IDC, the rightful owner, was not an appropriate remedy in this case.

Conclusion

The interests of consumers of condominium units and other goods and property are not protected or advanced when the law in a given jurisdiction is construed in such a way that developers stand to lose all their invested capital if, many years after the fact, some court misinterprets the law and declares that they failed to comply with a technical legal requirement before they began to build on the property-

And consumers are not protected by interpreting a jurisdiction’s laws in such a way that producers and developers of consumer goods, services, and property are punished for their good-faith attempts to comply with applicable law when they attempt to deliver such products to consumers. The worst way to protect consumers is to deprive them of opportunities to consume products that otherwise would be available to them, but for a misguided and investment-killing interpretation of a jurisdiction’s applicable laws.

With respect to real estate development projects involving condominiums, developers and consumers alike are now cast adrift on a dark and stormy ocean of doubt and uncertainty. After this decision, what real-estate developer in its right mind *148 would proceed to build a condominium project, create a master association, and offer units for sale to consumers when, ten years later, a court can take its property away with one stroke of its pen merely because the developer allegedly failed to comply with voting procedures that a court later rules were required?

For these reasons, I would reverse, vacate the summary judgment entered in favor of the plaintiffs, and remand this ease to the Superior Court with instructions for it to enter judgment in favor of the defendants dismissing the plaintiffs’ claims with prejudice.

. The majority points to G.L.1956 § 34-36.1-3.03(b), which provides that "[t]he executive board may not act on behalf of the association to amend the declaration.” In this case, however, the executive board of the GIS condominium did not act on behalf of the GIS master association to amend the GIS condominium declaration. Rather, as provided in § 34-36. l-2.20(d), the persons entitled to elect the executive board of the GIS master association did so when they unanimously approved the amendments in question. Most importantly, § 34-36.l-2.20(d) expressly provides that "[t]he rights and responsibilities of unit owners with respect to the unit owners’ association set forth in § 34-36.1-3.03 * * * apply in the conduct of the affairs of the master association only to those persons who elect the board of a master association.” Thus, § 34-36.1-3.03(b) (providing that the executive board may not act on behalf of the association to amend the declaration) was inapplicable to the unit owners of the plaintiff condominium associations because they were not entitled to elect the board of the GIS master association and the voting on the 1994 amendments to the GIS declaration occurred in connection with "the conduct of the affairs of the master association.” Section 34-36.1-2.20(d).

. The majority says that it is "puzzled” by this statement, indicating that “at no time have defendants ever asserted that they own the land underlying the master units in fee simple.” Although this statement is correct, what the majority apparently does not understand is that the units themselves, apart from the land, constitute "real estate” under the act. The defendants own this real estate in "fee simple” — even though they do not assert, nor have they ever asserted, that they own the land underlying their GIS master units in fee simple. .Rather, the land underlying these units is owned by the GIS condominium, but as a limited common element, it is reserved for IDC’s exclusive use. In short, the land underlying the units and the units above the land are discrete portions of the real estate at these Goat Island condominiums. As such, they can be and have been separately owned "in fee simple” by different entities.

. See McConnell v. Wilson, 543 A.2d 249, 250 (R.I.1988) (recognizing existence of air space units).