MICHAEL FLYNN & another [Note 1] vs. MICHAEL PARKER [Note 2] & others. [Note 3]

MILKEY, J. The plaintiffs are the owners of unit 702 of the Flagship Wharf Condominium in Boston. They seek to renovate

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the kitchen area of their unit in a manner that involves the complete removal of one wall, and the partial removal of another. Pursuant to the condominium by-laws, they sought approval for their proposed changes from the governing body of the condominium association (association), defendant Flagship Wharf Condominium Association Board of Managers (board). The board indicated that it would grant approval, but only on the condition that the plaintiffs acknowledge that the association owned the two walls in question. Deeming that condition unacceptable, the plaintiffs filed a fourteen-count complaint against the board, two of its members, and a third individual involved in the management of the condominium. They sought a declaration that they owned the two walls, as well as damages based on a wide variety of claims ranging from infliction of emotional distress to civil conspiracy. The defendants counterclaimed seeking a declaration that they owned the walls based on what floor plans incorporated into the master deed depicted. On cross motions for summary judgment, a Superior Court judge ruled in the defendants' favor on the plaintiffs' claims, and in an amended judgment, the judge ruled in the defendants' favor on its counterclaim. We affirm, albeit on slightly different grounds than those relied upon by the motion judge. [Note 4]

Background. In determining whether summary judgment was appropriately granted, we review the parties' submissions in the light most favorable to the losing party. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Despite the volume of the summary judgment record, the key facts are largely undisputed.

What the deeds say. In February, 2007, the plaintiffs purchased their unit, together with undivided interests in the building's common elements, pursuant to a "condominium unit deed." The unit deed referenced the condominium master deed (as amended), with an appropriate citation to the registry of deeds. The unit deed also specified that the unit that the plaintiffs were purchasing "is shown on the floor plans [floor plans] filed simultaneously with the [m]aster [d]eed and the [u]nit [p]lan for said [u]nit [unit plan]," again with specific indicators of where such plans could be found. The amended master deed stated

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that the phase of the condominium unit, of which the plaintiffs' unit was a part, "including the [u]nits and [c]ommon [e]lements located therein . . . is as shown on eleven (11) consecutively numbered plans recorded simultaneously herewith . . ."

The master deed addressed what property the unit owners held individually, and what property they owned collectively with other unit owners as "common elements" (including two separate categories of common elements, "building common elements" and "residential common elements"). [Note 5] The common elements are defined to include, among other things, the land, "structural elements" of the building, exterior walls, common walls separating units, and walls separating units from "corridors, vestibules, and lobbies." They also include "central service equipment," such as plumbing and electrical wires, that serve more than the unit in which they lie. Finally, common elements are also defined to include additional areas and facilities shown on the condominium plans as building common elements, residential common elements, or, simply, "[c]ommon [e]lements." [Note 6]

Specifically excluded from common elements is "any matter which, under [s]ection 5[.]A(I) hereof, is included within the description of the [r]esidential [u]nits." [Note 7] Section 5.A(I) of the master deed in turn describes the residential units as being "shown on the [c]ondominium [p]lans." It also states that each residential unit:

"includes all non-structural walls within the boundaries of

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such [u]nit, the heat pump unit within and exclusively serving such unit and all utility lines, pipes, wires, conduits, facilities and services, all vents, ducts, and flues and all building services and equipment to the extent the foregoing are located within and exclusively serve such [r]esidential [u]nit and are not located in any portion of the [c]ondominium contributing to the structure or support of the [b]uilding."

With respect to interior walls, the master deed defines the boundaries of residential units as follows: "Interior Building Walls Between Residential Units or Separating Residential Units from Residential or Building Common Elements: The plane of the surface facing such [u]nit of the wall studs nearest the [r]esidential [u]nit or the plane of the surface of the metal furring on the concrete/masonry walls nearest the [r]esidential [u]nit."

What the plans depict. As shown on both the floor plan and the individual unit plan, the two disputed walls are thick interior walls that emanate from, and are perpendicular to, the central spine of the building. [Note 8] On both plans, the two walls are depicted with solid black shading. That particular type of shading is also used for the exterior walls and for interior walls that separate the residential units from each other or from common areas such as hallway corridors outside the units. A legend that appears on the floor plan plainly indicates that the areas shown with this type of shading are "common elements." There are other, thinner interior walls depicted in white (with only the surfaces of the walls shown with black lines). The rooms themselves are also shown in white. The legend appearing on the floor plan indicates that it is the areas depicted in white that are part of the "residential unit."

The plaintiffs' proposed renovation. One of the walls separates the kitchen from the living room/dining room area (living area). The plaintiffs want to take down most of the upper portion of this wall (the kitchen/living area wall) in order to create what

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they refer to as a "pass through" between the rooms. This would apparently open up the kitchen not only to the living area but also to the "focal point of the unit," a wall of windows facing Boston Harbor and the Boston skyline.

The plaintiffs hired an expert who concluded that the two walls are not in fact structural (i.e., load bearing). The defendants did not counter that evidence in the summary judgment proceedings. In fact, one of the individual defendants acknowledged in his deposition that he has come to believe that the walls are not structural.

The kitchen/living area wall indisputably contains pipes and ducts, which the plaintiffs conceded below are themselves "common elements." The plaintiffs plan to leave the pipes and ducts in place, but to enclose them inside columns (in this manner, the upper part of the wall will in effect be replaced by two columns). The second wall separates the kitchen from a foyer. The plaintiffs want to replace this wall (the foyer wall) with glass French doors. As confirmed through the plaintiffs' having cut exploratory holes in the foyer wall, this wall does not currently contain any pipes, ducts, or other "central service equipment." The defendants maintain that even though the wall is currently empty, reserving it for future potential common use still serves an important purpose: reserving space for adding pipes, ducts, or other common elements in the future. [Note 9]

Following lengthy and contentious discussions, the board indicated in writing that it would approve the plaintiffs' plans. However, the board was willing to do so only on the condition that the plaintiffs acknowledged that the association owned the walls and agreed to the board's reserving a right to have the owners reconstruct them at their expense for potential future common use.

The course of the litigation. After extensive discovery, the parties filed cross motions for summary judgment. Because the two walls were specifically shown as common elements on the

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floor plan, the judge ruled that the association, not the plaintiffs, owned them. She dismissed the plaintiffs' complaint in its entirety, [Note 10] and she directed the entry of a judgment declaring that the association owned the two walls. [Note 11]

Discussion. "Ownership of a condominium unit is a hybrid form of interest in real estate, entitling the owner to both exclusive ownership and possession of his unit, . . . and . . . an undivided interest [as tenant in common together with all the other unit owners] in the common areas . . ." Berish v. Bornstein, 437 Mass. 252, 262 (2002), quoting from Noble v. Murphy, 34 Mass. App. Ct. 452, 455-456 (1993). Individual "condominium unit owners cede the management and control of the common areas to the organization of unit owners . . ." Id. at 263. See Lallo v. Szabo, 75 Mass. App. Ct. 1, 4 (2009).

The governing statute, G. L. c. 183A, "contains a comprehensive scheme for defining and governing the common areas." Id. at 5. Toward that end, the statute requires that master deeds describe the "common areas and facilities" at the condominium. See G. L. c. 183A, § 8(e). The statute defines that term as including certain kinds of items, but the list is qualified by the language "except as otherwise provided or stipulated in the

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master deed." G. L. c. 183A, § 1, as amended through St. 1998, c. 242, § 3. Moreover, the list of enumerated items includes the generic category of "[s]uch community and commercial facilities as may be provided for in the deed as being owned in common." [Note 12] G. L. c. 183A, § 1(7). Thus, the master deed itself provides "the rules of the game," Strauss v. Oyster River Condominium Trust, 417 Mass. 442, 452 (1994), and the question we face is what did the master deed intend with regard to the division between individual and common property. In addressing that question, "[t]he intent of the parties is gleaned from 'the words used, interpreted in the light of the material circumstances and pertinent facts known to them at the time [the deed] was executed.' " Commercial Wharf E. Condominium Assn. v. Waterfront Parking Corp., 407 Mass. 123, 131 (1990), quoting from Bessey v. Ollman, 242 Mass. 89, 91 (1922).

Given that the two walls are plainly depicted as "common elements" on the floor plan, they fit within the description of that term in section 6.A(xii) of the master deed ("such additional common areas and facilities as may . . . be shown on the [c]ondominium [p]lans as [c]ommon [e]lements"). Notwithstanding this, the plaintiffs protest that the heavy black shading on the plans is ambiguous. In support of this argument, they submitted an expert affidavit stating that architects sometimes shade entire walls merely for "graphic clarity," and to avoid the "cluttering" that would be caused by showing individual pipes and similar elements inside the walls. [Note 13] In this manner, the plaintiffs suggest that the black shading at most indicates that the walls might contain common elements (such as the pipes and ducts that the kitchen/living room wall in fact contains). But even if architects commonly shade entire walls to avoid clutter in their drafting, this would not change the fact that the legend on the floor plans expressly identifies those areas marked

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with black shading as common elements, and only those areas shown in white as making up the residential units. [Note 14] We agree with the judge that the floor plans, which are expressly incorporated into the master deed and unit deed, unambiguously identify the two walls as "common elements." [Note 15]

Our analysis is not done, however, because the walls nevertheless might fall within the language of section 6.A specifically excluding from the description of "building common elements . . . any matter which, under Section 5[.]A(I) hereof, is included within the description of the [r]esidential [u]nits." The plaintiffs argue that the "empty" foyer wall fits wholly within this exclusion, because it lies completely within their unit, it is not structural, and it contains no individual common elements such as pipes. They concede that the pipes and ducts inside of the kitchen/living area wall are common elements, but they argue that only that portion of the wall in the immediate vicinity of them is subject to common ownership.

A closer examination of the text of the master deed reveals the shortcomings in the plaintiffs' argument. The walls fit the textual description of a residential unit only if they lie "within the boundaries of such [u]nit." Since the kitchen/living area wall separates the unit from building common elements (the

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pipes and ducts inside of it), the boundaries of the unit by definition end at the plane of the wall, and the wall itself would not lie within such boundaries. The same would be true as to the foyer wall if that wall itself was intended as a common element. That means that the text of the master deed alone cannot resolve whether the foyer wall was intended to be held in common or by the unit owners, [Note 16] and reliance on what the plans show is both appropriate and determinative. See Reagan v. Brissey, 446 Mass. 452, 458 (2006) ("A plan referred to in a deed becomes a part of the contract so far as may be necessary to aid in the identification of the lots and to determine the rights intended to be conveyed," quoting from Jackson v. Knott, 418 Mass. 704, 711 [1994]). Put differently, the floor plan's specific and graphic depiction of which areas constitute "common elements" and which areas make up the residential unit is such strong evidence of the declarant's original intent that it overcomes any ambiguity in the text. [Note 17] Sometimes plans, like pictures, are worth a thousand words.

This interpretation is also consistent with the principle that master deeds are to be "interpreted in the light of the material circumstances and pertinent facts known to [the parties] at the time [the deed] was executed." Commercial Wharf E. Condominium Assn. v. Waterfront Parking Corp., 407 Mass. at 131, quoting from Bessey v. Ollman, 242 Mass. at 91. The plaintiffs made no attempt to demonstrate that when the master deed was executed, its drafters knew that the two walls were nonstructural, or that the foyer wall was "empty." [Note 18] Instead, their claim of ownership is based on facts they uncovered in the present

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day. In this manner, the plaintiffs suggest that the master deed intended that ownership of interior walls was to be determined based on whether the walls ultimately proved to be structural or whether they in fact housed common utilities. But such fluidity is at odds with the certainty required of documents that convey property interests. See McHale v. Treworgy, 325 Mass. 381, 385 (1950) (land conveyed in deed must be described with particularity). The master deed either intended that ownership of the walls be transferred to individual unit owners or it did not. If the intent of the parties that the walls be designated as common elements is plain (as we believe it is), then whether the walls ultimately proved to be structural or not would not affect the narrow question of ownership. [Note 19]

We do not mean to suggest that the association has a strong present interest in what the plaintiffs do with the two walls. In fact, to the extent that an interior wall is nonstructural, does not contain common utilities, and can be seen only from within a unit, the association's interest in the walls would appear to be minimal. In this context, the board unsurprisingly indicated that it would approve the specific renovations that the plaintiffs proposed, as it has done with similar proposals in other units in the past. [Note 20] Although the board reserved the right to force the plaintiffs to rebuild the walls, the plaintiffs have not demonstrated that

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the association's exercising that option is anything other than theoretical.

We conclude by addressing one ancillary dispute. Pursuant to Mass.R.Civ.P. 54(e), as amended, 382 Mass. 829 (1981), the defendants requested an award of approximately $14,000 in deposition costs. The judge allowed that award through a simple endorsement on the defendants' motion that "Costs shall be assessed." Discretionary deposition costs can be awarded only if the judge makes an express finding that the depositions at issue were "reasonably necessary." See Waldman v. American Honda Motor Co., 413 Mass. 320, 328 (1992). [Note 21] Therefore, although we affirm the judgments, we vacate the order allowing the defendants' motion for costs and remand that motion for further consideration.

So ordered.