Home RICHARD BABSON, DONALD COREY, MICHAEL DEMARCO, BARBARA KANE, ARTHUR SCHLEIFER, JR., MARVIN SCHORR and ELISHA G. PIERCE, III, as Trustees of 330 Beacon Street Condominium Trust v. MICHAEL C. LESBURG, SUSAN M. NAJJAR and ELIZABETH A. NAJJAR. SUSAN LESBURG, in her capacity as Trustee of the One Forty-Six Trust, Defendant-Intervenor.

MISC 306777

July 7, 2009


Piper, J.


This action is before the court on cross-motions for partial summary judgment. In this action, brought by the plaintiff trustees of the 330 Beacon Street Condominium Trust, the court must determine who has rights to park in a disputed space within the parking garage of the condominium. The dispute requires the court to consider the parties’ mutually exclusive contentions that, under applicable law and the organic documents of the condominium, the conveyance of a condominium unit by a unit deed which expressly excluded the right to park in the garage space–a right up until then associated with the unit–resulted in the disputed parking right ending up with the grantor, the grantees, or the condominium trustees. Each of these parties lays claim to the space.

In September 2002, defendant Michael Lesburg sold condominium unit 36 to defendants Susan and Elizabeth Najjar; the deed he gave explicitly excluded from the conveyance the right to the indoor parking space (space number 4) which, going back to the time the condominium was established in 1974 and Unit 36 first was conveyed out, had been assigned to, and used by the owners of, Unit 36. Some two years after they took title, the Najjars asserted that the explicit exclusion, from the deed to them, of the right to use the parking space was ineffective, and that they possessed the rights to the parking space. Michael Lesburg contends that the exclusion was lawful and proper, and that he continues to hold the disputed parking space right. The trustees seek a declaration that they, on behalf of the organization of unit owners, now hold the parking right. The trustees take the position that the parking space right did not pass to the Najjars, because it was specifically excluded, and yet did not remain in the grantor, Mr. Lesburg, because that was prohibited by law and the relevant condominium documents, particularly because after selling Unit 36, he was not the owner, at least as a matter of straight legal title, of any unit within the condominium. (Mr. Lesburg does maintain that he was and remains the beneficial owner (and resident) of another unit within the condominium. At the time of conveyance Unit No. 35, was owned of record by his wife, the defendant intervenor Susan Lesburg, as trustee of Thirty-Five Trust and Mr. Lesburg was the beneficial owner. The Lesburgs now reside in Unit 146, owned by Ms. Lesburg as Trustee of One-Forty Six Trust, of which Mr. Lesburg is beneficial owner.)

The condominium trustees learned that, after selling Unit 36, Mr. Lesburg entered into two consecutive lease agreements with Paul and Susan Flynn each allowing use of the disputed parking space for a period of one year. In addition, Mr. Lesburg had accepted a written offer by the Flynns to purchase the disputed parking license for a sum of $200,000. The Najjars sought to prevent this sale, and plans for it have been abandoned.

Mr. Lesburg filed a cross-claim against the Najjars for breach of contract and unjust enrichment. He also has filed a counterclaim against the condominium trustees for interference with contract or advantageous relations. The Najjars have filed their own claims, asserting that the severance of the parking space from the condominium unit they purchased from Lesburg was illegal. In addition, the Najjars claim against the condominium trustees, alleging that the Najjars have been wrongfully charged for a disproportionate share of common area expenses, due to the expenses related to the parking garage costs included in those fees.

Few of the many claims asserted in this case are ripe for resolution on the summary judgment record before the court. The court proceeds to rule on a portion of the declaratory judgment requests, concluding on the uncontested facts, as matter of law, that the 2002 unit deed’s purported exclusion of the parking space was not contrary to the relevant statutory provisions in G.L. c.183A governing condominiums. The effort to hold back the parking right was, however, at least in a strict sense contrary to the provisions of the condominium documents then in force, which permitted retention or reassignment of a parking right, but only for the benefit of certain types of parties, and then only with prior approval from the trustees of the condominium. On the record before the court, Mr. Lesburg, to be able to retain the parking space right, needed to be either the owner of a unit or the resident lessee of a unit owner, and he was, strictly speaking, neither. He also did not obtain prior approval of the trustees of the condominium organization for his planned retention of the parking space right. This much is clear from the uncontested facts before the court.

That leaves unresolved a number of issues, including, not in the least, what the proper remedy is for this inadequate effort to keep back a parking space long assigned to a conveyed unit. There remain considerable questions of fact which would require the taking of evidence before the court could fashion a remedy. It is not clear at all, for example, that the proper relief would be to declare the parking right to have passed to the Najjars, in the face of their clear understanding that their deed gave them no such right. Neither is it clear that the valuable parking space should become property of the condominium association, given the windfall that would represent. This is particularly so because it is not shown in the record that, had a request been made at the time of transfer for the parking space right to be reallocated to Mr. Lesburg’s spouse, who at the time held as trustee title to at least one unit in the condominium, the condominium trustees would have had any basis for refusing such a request. On these issues, and on the remaining counts as to which summary judgment was not sought, the court cannot act to determine the balance of the case, and will ask the parties to prepare for trial.

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"Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law." Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 643-44 (2002); Mass. R. Civ. P. 56(c). "The moving party bears the burden of affirmatively showing that there is no triable issue of fact." Id. at 644. In deciding a motion for summary judgment, the court may consider pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c). In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney General v. Bailey, 386 Mass. 367 , 371, cert. den. sub nom. Bailey v. Bellotti, 495 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law, and "an adverse party may not manufacture disputes by conclusory factual assertions." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros., 436 Mass. at 648. The party opposing summary judgment "cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment." LaLonde v. Eissner, 405 Mass. 207 , 209 (1989).

The following facts are shown by the summary judgment record, and appear to be without substantial dispute:

1. The initial master deed for the 330 Beacon Street Condominium is dated April 26, 1974 and recorded in the Suffolk Registry of Deeds in Book 8706, Page 194. The declaration of trust recorded with the master deed is dated the same date and recorded with the master deed in Book 8706, Page 204.

2. The master deed provides, in Section IV, “Description of Common Areas and Facilities” as follows:

“The Common areas and facilities of the Condominium (the “Common Elements”) consist of the entire Condominium, including all parts of the Building other than the Units, and include, without limitation the following: ...

(f) the garage of the Building, provided, however, that certain of the unit owners shall have a license for the exclusive use of one (1) or more parking spaces, as described in the Unit Deeds, the location of which shall be designated from time to time by the Trustees of 330 Beacon Street Condominium Trust.”

3. The declaration of trust as first recorded provides, in pertinent part:

“VIII. Sale of Units

Section 1. No severance of ownership. No unit owner shall execute any deed, mortgage, or other instrument conveying or mortgaging title to his Unit without including therein the Appurtenant Interests (as hereinafter defined); it being the intention hereof to prevent any severance of such combined ownership. Any such deed, mortgage, or other instrument purporting to affect one or more of such interests, without including all such interests, shall be deemed and taken to include the interest or interests so omitted, even though the latter shall not be expressly mentioned or described therein. No part of the Appurtenant Interests of any Unit may be sold, transferred, or otherwise disposed of, except as part of a sale, transfer, or other disposition of the Unit to which such interests are appurtenant, or as part of a sale, transfer, or other disposition of such part of the Appurtenant Interests of all Units.

‘Appurtenant Interests,’ as used herein, shall include: (i) the undivided interests of a Unit Owner in the Common Elements; (ii) the exclusive license of a unit owner for one or more balconies, one or more indoor parking spaces (if included in his unit deed), and one or more storage rooms (if included in his unit deed)....

Notwithstanding anything to the contrary herein contained, a Unit Owner may, with the prior written consent of the Board of Trustees, convey his license to use one or more parking spaces or one or more storage rooms appurtenant to the Unit without conveying his Unit as a part of such transaction; thereby severing ownership of the parking spaces or storage rooms from ownership of the Unit.”

4. The original unit deed of Unit 36 is dated May 7, 1974, recorded in Book 8708, Page124, signed by the declarant trustee of the 330 Beacon Street Realty Trust, and includes a “license to one (1) indoor parking space...” and the undivided percentage ownership interest in the common areas of 0.8622.

5. By mesne conveyances, Unit 36 came to be owned by the defendant Michael Lesburg, under a deed dated March 22, 2001, recorded in Book 26102, Page 249. This deed of Unit 36, like all the unit deeds of it before, conveyed the unit with “a license to use one (1) indoor parking space, the location of which shall be designated from time to time by the Trustees of 330 Beacon Street Condominium Trust...” and an undivided percentage interest in the common areas of 0.8622.

6. By deed dated September 25, 2002, recorded the same day in Book 29430, Page18, Michael Lesburg conveyed Unit 36 to Susan M. Najjar and Elizabeth A. Najjar. The deed conveyed an undivided 0.8622 percentage interest in the common areas. The deed conveyed the exclusive license to use one storage room and any balconies extending from the unit. The deed provided: This unit is specifically not conveyed with the easement or license to use any parking space.”(underlined in original).

7. In 1977, the declaration of trust of the condominium was amended. A fourth amendment, recorded on June 1, 1977 in Book 8959, Page 205, changed the provisions of Article VIII. As amended, it continues to prohibit severance of appurtenant interests, but, unlike the original version of the declaration, does not list parking spaces in the definition of appurtenant interests. The amended provision says, in pertinent part, that “[n]o Unit Owner shall convey, sublicense or otherwise by contract permit the use of any parking space(s) to or by any person excepting another Unit Owner or the resident lessee of another Unit Owner. Arrangements concerning or affecting such conveyance, sublicense or permission to use such garage space by a Unit Owner to another Unit Owner shall be submitted in writing to the Trustees for their information and approval, and such approval may be withheld only if in the judgment of the Board of Trustees the granting of such approval will not be in the best interest of the Condominium Trust and Unit Owners; otherwise, such approval shall not be unreasonably withheld or delayed.” This was the version of the declaration of trust in effect, as to these points, at the time of the deed conveying Unit 36 from Michael Lesburg to the Najjars.

8. At the annual meeting of the unit owners on April 28, 2005, after this litigation commenced, the meeting voted to amend Article VIII, Section 1 of the declaration of trust; this amendment added to the definition of appurtenant interests the exclusive license of “one or more parking spaces (if included in the Unit Deed.” The amended language provided that “[n]o Unit Owner shall sublicense the use of any parking spaces(s) to or by any person excepting a resident Unit Owner or the resident lessee of another Unit Owner.”

9. Susan Lesburg is Michael Lesburg’s spouse. She owns unit 146 in the 330 Beacon Street Condominium in her capacity as Trustee of the One Forty-Six Trust. The Trust was created by Declaration of Trust dated July 21, 2003 and recorded with the Suffolk Registry of Deeds in Book 32294, Page 80. Mr. Lesburg is the sole beneficiary of the Trust. Mr. and Ms. Lesburg reside in Unit 146. At the time of the sale to the Najjars of Unit 36, Mr. and Ms. Lesburg resided in Unit 35 of the condominium, which was owned of record by Ms. Lesburg, as Trustee of the Thirty-Five Trust.

10. Mr. Lesburg leased parking space number 4 to unit owners Paul and Susan Flynn for the twelve-month period beginning December 1, 2003 for $400.00 per month. Mr. Lesburg also offered to the Flynns an option for an additional 12-month lease, and a right of first refusal if the parking space were to become available for sale.

11. Mr. Lesburg entered into an additional agreement with the Flynns dated December 18, 2004 by which Mr. Lesburg leased the same parking space to the Flynns for another 12-month period commencing December 1, 2004 at the same $400.00 per month. This lease also included the same refusal right for the Flynns.

12. After the commencement of the current action, the Flynns terminated their lease of the parking spot and have discontinued their use of the disputed spot. The Flynns had paid $400.00 a month since December 1, 2003.

13. On September 28, 2004 Ms. Flynn made a written offer to Mr. Lesburg to purchase parking space number 4 for $200,000. Mr. Lesburg accepted the offer, subject to approval by the trustees of the condominium trust.

14. On June 9, 1975 Muriel Leventhal conveyed her right, title and interest in one indoor parking space to Howard Rubin and Estelle Rubin. The parking space originally had been associated with Unit 61. Leventhal, however, had sold Unit 61 to William Glovsky on May 21, 1975 without this parking space. The condominium trustees approved this conveyance, executing and recording a certificate of trustees dated June 1, 1977.

15. The condominium trustees approved a conveyance of one of two parking spaces associated with Unit 165, pursuant to the provisions of an agreement dated March 22, 2002. Robert and Ruth Remis conveyed the space to the trustees.

16. Stephen and Susan Paine conveyed on July 30, 1990 Units 102, 105, and 106 to Paul Goss along with the licenses to use parking spaces, assigned to Units 102 and 106, while withholding from the conveyances the license for the space assigned to Unit 105. The trustees say they have been unable to locate records that would indicate whether the trustees approved the Pain-Goss conveyance.

The facts set forth in these numbered paragraphs appear without substantial controversy, and are established for the purpose of trial. Mass. R. Civ. P. 56(d).


Many of the parties’ contentions do not lend themselves to decision on the current record. The court is, however, able to reach and rule on a central point of disagreement–whether the 2002 sale of Unit 36 by Michael Lesburg to the Najjars was, given the controlling law and governing real estate documents, legally incapable of excluding the right to the disputed parking space from passing with the deed. For substantially the reasons presented on this score by the Lesburgs in their memorandum in support of their motion, the court rules that applicable law did not preclude the effort by Mr. Lesburg to withhold the right to use the garage parking space from his conveyance of unit 36. However, on the condominium documents as they stood at the date of the contested transaction, Mr. Lesburg did not, without having done more, have the unilateral right to retain the parking space right simply by excluding it in the unit deed. His effort to do so was unsuccessful because he failed to follow the plainly prescribed procedure of the organic documents of the condominium.

The condominium statute does not, standing alone, prohibit the challenged attempted retention of the right to park in space number four. It is true that G.L. c. 183A, §5(c) provides that “[t]he common areas and facilities shall remain undivided and no unit owner or any other person shall bring any action for partition or division of any part thereof.” Contrary provisions are by this enactment invalidated. The condominium statute is, however, above all else an enabling law, which leaves open a wide range of alternatives for landowners to employ in the establishment of a variety of condominiums. Barclay v. DeVeau, 384 Mass. 676 , 682 (1981): “Statutes like c. 183A which imprint the condominium with legislative authorization are essentially enabling statutes.... This statute provides planning flexibility to developers and unit owners.” Only where a given condominium violates a specific statutory prohibition does the flexibility of the chapter give way. What the statute prohibits is division of the common areas and facilities; no unit owner can seek to partition the common areas so that he or she can become the independent legal owner of a part of what is owned undividedly by all the unit owners. That does not seem to be what has happened here, particularly given the nature of the parking right as created in, and governed by, the recorded condominium documents for 330 Beacon Street.

The statute does not prescribe a strict form to be used to establish and maintain the rights of unit owners to use exclusively some portion of the common areas, such as the parking space right in contest in this case. Those rights may be created as easements to use particular spaces appurtenant to each given unit, set up in that specific way in the master deed. The rights might also be provided for in the master deed in a way which provides for a right to use exclusively some part of the common elements, with the designation of the particular right to use a particular location to be made by the declarant in the first unit deed out. Or, as was the case here, the master deed might provide that an exclusive right to use a parking space may be granted in the unit deed, but then allow the trustees of the organization to designate from time to time where that parking would take place.

The master deed expresses the parking rights as a limitation on the general right of all unit owners to have full use of the common areas. Although unit owners generally have a common right to use all of the common areas, that is not the case with the parking garage. It is the parking spaces, the initial right to which is conferred by the unit deeds (and the location of which is from time to time designated by the trustees) from which all other unit owners are excluded by the language of the master deed. The master deed limits the unit owners’general right to use all the common areas, giving the right to use parking spaces special status, afforded to designated (or to be designated) unit owners. The fairest reading of the master deed is not that this establishes a fixed easement right. An easement right would more naturally be set up as a right, appurtenant to a unit, to make exclusive use of a particular space. Under the master deed at issue here, however, there is no particularity to the space a given unit grantee receives. That designation can come in the unit deed (subject to relocation by the trustees over time); alternatively, the unit deed could, under the master deed, grant a right to use of a parking space, but leave its designation to the trustees, even in the first instance. This sort of right shapes up more like a license than an easement. The language of the master deed uses that very term in referring to the parking right. A license is a privilege or permission to use land, granted by its owner; a license, which is not necessarily an estate in land, excuses use of the land of another which otherwise would constitute a trespass.

The declaration of trust, both as first recorded and as later amended, also refers to the parking space right as an “exclusive license,” rather than an easement. Given the uniformity of nomenclature used in the condominium documents, it is fairest to treat the parking rights they establish as licenses to use a parking space exclusively, and to the exclusion of the right the other unit owners otherwise would have to use all the common elements of the condominium.

As a license, the right to park in space number four, which Michael Lesburg held from the time he purchased Unit 36, was not necessarily something which was so bound up with the ownership of that unit that, as a matter of general property law, it could not be held apart from the unit. Had the right to park been created as an easement appurtenant to the unit Mr. Lesburg purchased, he could not have sold that unit, the benefited estate, and retained for his personal use the appurtenant parking easement, at least not without the joinder of the various owners of the parking space, who are the unit owners of the condominium, and whose representatives, the trustees of the organization of unit owners, have the power to “manage and otherwise deal with” the common elements. G.L. c. 183A, §10(b)(1). A unilateral effort to sever an appurtenant easement right from the dominant estate would not work.

This is what happened in McElligott v. Lukes, 42 Mass. App. Ct. 61 (1997). The master deed there identified the garage in dispute as part of the common elements, and then provided that a given unit “shall have an easement for the exclusive use of said garage....” Id., at 63. The McElligott court, concluding that the right was an appurtenant easement not allowed by the relevant documents to be separated from the ownership of the unit itself, on the authority of Schwartzman v. Schoening, 41 Mass. App. Ct. 220 (1996), invalidated a ninety-nine year lease of the garage. The lease had been given by the first unit owner back to the declarant on the day of the first unit deed’s delivery, for nominal rent. The courts in McElligott and Schwartzman concluded that, as easements appurtenant to a particular unit, the rights involved in those cases “may not be separated from [the unit]... unless permitted by the terms of the instrument which created the easement – in our case, the master deed establishing the condominium. That deed does not contain such terms...” McElligott, at n. 3, quoting Schwartzman, 41 Mass. App. Ct. at 224.

In Schwartzman, the right to park was construed to be an appurtenant easement, even though, unlike in McElligott, the right was not specifically denominated as an “easement” in the condominium documents. In Schwartzman, the parking right was granted as “the exclusive use of [six parking spaces] which is reserved to such unit as the Sponsor may designate by Deed.” Id., at 221. The Schwartzman right was not labeled an “easement,” but neither was it called, as in the case now before this court, a “license.” The Schwartzman court thought it significant that there was an “express reservation of the use of parking spaces to the designated units and not to the titleholders of such units.” Id., at 222. In the pending case, the master deed says that “certain of the unit owners shall have a license for the exclusive use of one (1) or more parking spaces....”(emphasis supplied). While the differences between the documents in these reported cases and this one are not glaringly obvious, the differences are material, and lead to an opposite conclusion about the nature of the rights involved. In the case at bar, the condominium documents created a license for exclusive use of a parking space, rather than an appurtenant easement to park in a defined space.

This conclusion is reinforced by the treatment given the parking rights in the 330 Beacon Street Condominium’s declaration of trust. The Schwartzman court looked to the condominium by-laws involved there to assess the nature of the disputed right. Id. In the declaration for 330 Beacon Street, as first recorded, it provided that “[n]otwithstanding anything to the contrary herein contained, a Unit Owner may, with the prior written consent of the Board of Trustees, convey his license to use one or more parking spaces... appurtenant to the unit without conveying his unit as part of such transaction; thereby severing ownership of the parking spaces... from ownership of the unit.” The right is, consistently with the master deed, a “license,” and one belonging to the “Unit Owner,” as opposed to one granted to the unit. More importantly, the declaration expressly permits, albeit with prior approval from the trustees, holding the parking right without having to own a unit. As first recorded, the declaration does not require that the parking right be in the hands of anyone who is an owner of a unit within the condominium. Nothing in the language expressly requires that the conveyance of the parking license go to another owner.

That requirement was added in 1977, in the version of the declaration of trust which remained in place at the time of the challenged 2002 conveyance to the Najjars. As amended, the declaration does require that the right to park, even if approval is secured from the trustees, may be made available only to “another Unit Owner or the resident lessee of another Unit Owner.” Notably, this amendment is very broad in speaking of the manner by which those rights might be made available–they may be “conveyed,” “sublicensed,” or “permitted otherwise by contract.” This breadth further supports the view that the right involved is not an easement appurtenant to a specific unit, but instead is in the nature of a license afforded an individual who owns or rents a unit within the condominium.

What all this shows the court is that the challenged right is one which is not, as a matter of the real property law of the Commonwealth, legally incapable of being held and used apart from ownership of the unit to which the right initially was assigned. The judgment which will enter in this case will declare that the challenged transaction in 2002 was not invalid as a matter of general principles of real property law.

This, of course, is not the end of the inquiry. The right to park is a creature of the condominium documents which create and govern the right, and must be held and exercised in accordance with all their valid terms. Even if the attempted retention by Michael Lesburg of the right to park in space four was not unlawful under general principles of property law, it was not accomplished in compliance with the governing provisions of the condominium documents. A license to park exclusively in a parking space, created by the master deed, and structured and controlled by the validly adopted provisions of the declaration of trust, cannot be dealt with in a manner wholly at odds with the terms of those instruments.

In this case, the record is clear that Mr. Lesburg failed to abide by the express provisions of the declaration of trust as in effect at the time of his deed to the Najjars. The trust required that he obtain prior written approval of the trustees. He did not request and did not receive any such approval. He also engaged in a transaction the end result of which was prohibited, by at least a strict reading of the declaration’s terms. The amended declaration insisted that, however the transfer of a parking right might be accomplished, it was not permitted to allow parking in the space involved except by either a unit owner or the resident lessee of a unit owner. When he sold Unit 36 to the Najjars, the record indisputably shows that Mr. Lesburg was not the record title owner of any unit at 330 Beacon Street. Nothing in the records shows, either, that he was residing in a unit at 330 Beacon Street as a lessee under any lease.

For these reasons, the attempted retention of the right to park in space four was inconsistent with provisions of the declaration of trust, and not effective. What the record on summary judgment best suggests is that the disputed transaction was the product of mistake on the part of all participants in it–mistake about the ability, under the condominium documents, of Mr. Lesburg to sell the unit to the Najjars and keep the parking right for himself.

That Mr. Lesburg thought he had that right is obvious. And his mistake is somewhat understandable. He was continuing to live in the building. He resided in a unit there with his wife who, as trustee of a trust in which he had beneficial ownership, was the record owner. This situation still exists, albeit as to a different unit, today. The reasonable inference from the record is that if Mr. Lesburg had appreciated this issue any better, prior to giving his deed he would have taken steps to make himself a person qualified to hold the parking right--either by becoming a record owner of the unit owned by his wife as trustee, or by entering into a lease of some sort with her.

Mr. Lesburg’s failure to secure the prior authorization of the condominium trustees is a bit less excusable. The obligation to get that approval is clearly set out in the condominium declaration of trust. Yet, this provision is not one which gives the trustees much opportunity to turn down such a request. It is explicit that their approval “may be withheld only if in the judgment of the Board of Trustees the granting of such approval will not be in the best interest of the Condominium Trust and Unit Owners; otherwise, such approval shall not be unreasonably withheld or delayed.” Had Mr. Lesburg understood the need to secure prior approval (and structured his transaction in a manner which met the strict requirements of the declaration) the trustees would have had to struggle to provide a reason to turn down the request.

There is little doubt as well that the Najjars were unaware of the noncompliance with these provisions of the declaration which took place when they bought Unit 36 from Mr. Lesburg in 2002. The deed could not have been clearer that the parking space was not passing to them. The record shows that the Najjars contentedly accepted title to the unit without any qualm about the lack of right to park in space four, and continued to live in the unit for several years without complaint about not being able to park in the garage space. Only when the outside parking which the Najjars had arranged to use when they moved in later became unavailable to them, did they awaken to their current position--that they had received the disputed garage space right back in 2002, by way of a deed which expressly announced that no parking whatsoever came as part of the conveyance.

Under the circumstances presented in this case, the court is troubled by the prospect that the disputed parking space should pass to the Najjars, given the somewhat technical nature of the failure by Mr. Lesburg to accomplish properly the result he and the Najjars apparently understood would come about when the deed passed between them in 2002. The record establishes that the parking garage right at issue here is something of considerable value. It would be inequitable for there to be a forfeiture of that valuable right.

Conferring the parking right on the condominium trustees also would be heading in the direction of inequity. Their position--that they, as opposed to either the grantor or the grantees in the 2002 deed, should succeed to the right, in effect by default--ignores both the apparently technical nature of the failures by Mr. Lesburg to structure the transaction adequately, and the trustees’ likely obligation to have granted approval to a properly structured arrangement, had one been proposed. Allowing the parking space right to revert to the condominium organization under these circumstances, given the long history of it as being available exclusively to a particular unit and not to the owners in general, and especially given the significant value it would command if sold, would raise concern that the trustees would receive a windfall.

The decision of the remainder of the case requires the court to venture outside of the facts, set forth above, which are shown in the record to be uncontested. Particularly where questions of parties’ intentions are involved, summary judgment often is an unattractive, if not unavailable, procedure by which to determine cases. And the parties should be granted the opportunity to put on evidence going to the question of the fair and equitable remedy the court ought fashion. The judgment that will enter at the conclusion of the case will declare that the challenged transaction in 2002 was not invalid as a matter of general principles of real property law. It also will declare that the challenged transaction was ineffective because of the failure to comply with applicable provisions of the condominium declaration of trust. The remaining issues in the case will be resolved after trial. The parties, by their counsel, are to confer promptly. Within thirty days of this Order, they are to submit a detailed joint written report setting forth their respective or collective views about their readiness for trial and the specific issues as to which they will present evidence at trial. Based on the report the court receives, it will schedule either a status conference or a pre-trial conference.

It is

ORDERED that partial summary judgment is granted as set forth in this Order and is otherwise denied. It is further

ORDERED that within thirty days of this Order, the parties, by their counsel, submit the joint written report called for in this Order.

So Ordered.

By the Court. (Piper, J.).


Deborah J. Patterson


Dated: July 7, 2009.