COMMERCIAL WHARF EAST CONDOMINIUM ASSOCIATION v. YOVETTE MUMFORD, individually and as a member of MGM Commercial Wharf LLC, MGM COMMERCIAL WHARF LLC, BOSTON YACHT HAVEN MARINA LLC, COMMERCIAL WHARF MARINA LLC, and GARRON MARKEY, individually and as manager of MGM Commercial Wharf LLC

Introduction

In this action, plaintiff Commercial Wharf East Condominium Association (the “Condominium” or the “Condominium Association”), located on Commercial Wharf in Boston (the “wharf”), seeks injunctive relief and compensatory damages for the alleged violation of use, access and parking restrictions by the individuals and entities who own, operate and/or control the Boston Yacht Haven Marina (the “marina”), which abuts the Condominium on the wharf. [Note 1] These individuals and entities are defendants Yovette Mumford (also known as Yovette Mumford-Markey), both individually and as a member of defendant MGM Commercial Wharf LLC (“MGM”), MGM, Boston Yacht Haven Marina LLC (“BYHM”), Commercial Wharf Marina LLC (“CWM”) and Garron Markey, both individually and as manager of MGM. [Note 2]

The restrictions at issue are contained in (1) three written and recorded agreements (hereafter, the “Deed Restrictions,” the “Declaration,” and the “Declaration Amendment”) between the Condominium and the defendants’ grantor and immediate predecessor in title, Modern Continental Marine Co. (“Modern Continental”), [Note 3] each of which is described as appurtenant to and benefiting the Condominium land and encumbering and running with Lot 1; [Note 4] and (2) the Variance and Conditional Use Permit Decision issued by the Boston Board of Appeal for the marina. [Note 5] The agreements and the Variance and Conditional Use Permit were each in place, a matter of record, and known to the defendants at the time they purchased the marina on Sept. 9, 2005. [Note 6]

In addition, the plaintiff alleges that the defendants have overburdened the marina’s access easement over the Condominium’s property and it seeks injunctive relief and damages on this claim as well. The access easement is contained in the Commercial Wharf East Condominium Declaration of Covenants and Easements (the “Easement”), which is a matter of record. Easement (Aug. 8, 1978), recorded in the Suffolk County Registry of Deeds in Book 9083, Page 300. The Easement leads from Atlantic Avenue, past the Condominium residences, and through the Condominium’s parking lot to the marina’s entrance at the far end of the wharf. See Ex. 1.

The defendants deny that they have overburdened the Easement and deny that they have violated the restrictions. They also have filed counterclaims, alleging that the Condominium has breached an obligation to provide twenty-six parking spaces on Condominium land and improperly restricted the defendants to six parking spaces on Lot 1. The defendants also seek a declaration that the restrictions are “illegal, void and unenforceable.” Answer and Counterclaim of the Defendants at 27, ¶ 43 (Jul. 27, 2006).

In response to these counterclaims, the Condominium denies that it is in breach of any of its obligations to the defendants and contends that the restrictions are clear, valid, and enforceable as written. The Condominium has “move[d] for partial summary judgment . . . with respect to the issue of liability on its claims that defendants deliberately violated the recorded usage, access and parking restrictions that burden their property on Commercial Wharf in Boston . . . and overburdened the common parking and driveway easement granting them access over [the Condominium’s] property . . . .” Commercial Wharf’s Motion for Partial Summary Judgment at 1 (Jul. 12, 2007). That question of liability has four parts: (1) the legal validity of the restrictions; (2) their meaning; (3) whether they have been violated and, if so, by which defendants; and (4) if this court finds that the defendants violated the restrictions, whether Ms. Mumford and Garron Markey have any personal liability for their alleged actions.

All of the defendants have cross-moved for summary judgment, seeking dismissal of Counts I and II of the Condominium’s Complaint (breach and specific performance of the restrictions) based on their contentions that the restrictions are unenforceable and, even if enforceable, the defendants have not breached them. Only defendants Ms. Mumford and Garron Markey seek summary judgment on Count III (the alleged overburdening of the Easement). They also have moved for the dismissal of all claims against Ms. Mumford and Mr. Markey on the ground that they have no personal liability for their actions.

For the reasons set forth below, the defendants’ cross-motion is DENIED in its entirety and the Condominium’s motion is ALLOWED to the extent set forth below. [Note 7] The restrictions and the Easement are clear, valid and binding on the marina and enforceable by the Condominium against each of the defendants. The restrictions and the Easement have the meanings set forth in the court’s prior rulings regarding the preliminary injunction and as summarized again below. The restrictions have been violated, warranting continued injunctive relief against each of the defendants. [Note 8] The preliminary injunction currently in place shall continue and, to the extent the defendants’ cross-motion is a request to dissolve or modify that injunction, that request is DENIED. The Condominium’s damages from these violations cannot be adjudicated on summary judgment and thus remain for trial. Likewise, there are material issues of fact in dispute regarding the plaintiff’s claim that the defendants have overburdened the Easement and this issue thus remains for trial.

The defendants’ motion to dismiss the Condominium’s claims against Ms. Mumford and Mr. Markey is DENIED. There is no basis to dismiss those claims insofar as they seek injunctive relief and there are material facts genuinely in dispute that, if determined in the Condominium’s favor, would result in Ms. Mumford’s and Mr. Markey’s personal liability for some or all of the Condominium’s damages. Moreover, Ms. Mumford and Mr. Markey are financially liable in contempt for their personal violations of the preliminary injunction. [Note 9] See Manchester v. Dep’t of Environmental Quality Engineering, 381 Mass. 208 , 215-216 (1980) (damages for civil contempt include “actual loss to the complainant caused by contemnor’s violation of the order in the main case, plus the complainant’s reasonable expenses in enforcing his rights”).

The Summary Judgment Standard

The parties have raised a number of objections to various submissions in connection with the motions for summary judgment. I therefore begin by setting out the legal and evidentiary standards for summary judgment in detail.

Summary judgment is appropriate when, after reviewing the record taken as a whole, “there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c); see also Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976). The burden of proving both the absence of a genuinely contested issue of material fact and entitlement to judgment as a matter of law is on the party seeking summary judgment. Pederson v. Time, Inc., 404 Mass. 14 , 17 (1989). This burden may also be met by demonstrating “that the party opposing the motion has no reasonable expectation of proving an essential element of that party’s case” at trial. Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 716 (1991); see also Flesner v. Tech. Commc’n Corp., 410 Mass. 805 , 809 (1991).

A fact is genuinely in dispute only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Reardon v. Parisi, 63 Mass. App. Ct. 39 , 40 (2005) (factual disputes must be based on a “rational view of the evidence”); Goulart v. Canton Hous. Auth., 57 Mass. App. Ct. 440 , 441 (2003) (same) and cases cited therein. Material facts are “those that might affect the outcome of the suit under the governing law. . . .” Anderson, 477 U.S. at 248; see also Hogan v. Riemer, 35 Mass. App. Ct. 360 , 364 (1993).

Factual matters can only be considered if shown by admissible evidence. That evidence can come from “pleadings, [Note 10] depositions, answers to interrogatories, and responses to requests for admissions under Rule 36, together with the affidavits, if any . . . .” Mass. R. Civ. P. 56(c). The court may also consider matters subject to judicial notice, concessions made by counsel on the record, testimony received in court (whether in the case at issue or in a former trial), and, if appropriate, letters, criminal cases involving a party, and facts “gleaned from the documents relied on by the parties.” Correllas v. Viveiros, 410 Mass. 314 , 317-18 & n.3 (1991) (and cases cited therein); Cannata v. Berkshire Natural Resources Council, Inc., 73 Mass. App. Ct. 789 , 793 (2009).

“[A]ffidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served [with that affidavit].” Mass. R. Civ. P. 56(e). “Affidavits fail to comply with the Rule when they are not made on personal knowledge, contain impermissible speculation or conclusory language, do not show affirmatively that the witness is competent to testify to the matters stated, or otherwise fail to set forth facts which would be admissible in evidence.” Apex Constr. Co., Inc. v. United States, 719 F. Supp. 1144, 1151 (D. Mass. 1989) (citations omitted); see also Shapiro Equip. Corp. v. Morris & Son Constr. Corp., 369 Mass. 968 , 968 (1976); Madsen v. Erwin, 395 Mass. 715 , 721 (1985). Moreover, “the non-moving party cannot create a material issue of fact and defeat summary judgment simply by submitting affidavits that contradict its previously sworn statements.” Ng Bros. Constr. Inc. v. Cranney, 436 Mass. 638 , 648 (2002). Likewise, affidavits “raise[] no genuine issue of material fact” when they seek to contradict “documentary evidence” (e.g., internal records and correspondence). [Note 11] Id. These same admissibility requirements apply to interrogatory responses and deposition testimony. Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456 , 465 n.10 (1997) (deponent’s mere “feeling that the testator” was unaware of what he was signing was inadequate to create “a genuine issue of material fact”); Mitchell v. TAC Technical Services, Inc., 50 Mass. App. Ct. 90 , 91-92 n.3 (2000) (a hearsay statement that was merely deponent’s opinion was “unacceptable to defeat summary judgment”); Glaz v. Ralston Purina Co., 24 Mass. App. Ct. 386 , 387 (1987) (“The judge properly disregarded these deposition excerpts which were conclusory in nature and based on hearsay.”); Sweda Int’l, Inc. v. Donut Maker, Inc., 13 Mass. App. Ct. 914 , 914 (1982) (answers to interrogatories did not meet the Rule 56(e) requirements).

Once the facts have been properly established, “the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing [summary] judgment.” Attorney Gen. v. Bailey, 386 Mass. 367 , 371 (1982) (citations omitted). “[T]he court does not pass upon the credibility of witnesses or the weight of the evidence [or] make [its] own decision of facts.” Id. at 370 (quotations and citations omitted, alterations in original). However, the inferences drawn must be reasonable ones. Goulart, 57 Mass. App. Ct. at 441. “Even in cases where elusive concepts such as motive and intent are at issue, summary judgment may be appropriate if the nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation.” Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990); see also Goulart, 57 Mass. App. Ct. at 441 (an issue may be decided as a matter of law when “no rational view of the evidence permits a finding” to the contrary); Key Capital Corp. v. M & S Liquidating Corp., 27 Mass. App. Ct. 721 , 727-28 (1989) (“bare assertions and conclusions,” unsupported by specific facts, cannot “withstand a well pleaded motion for summary judgment”). When a properly supported summary judgment motion has been made, “an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” Mass. R. Civ. P. 56(e) (emphasis added); see also Land Court Rule 4; Pederson, 404 Mass. at 17; Woo v. Moy, 17 Mass. App. Ct. 949 , 949-50 (1983) (“Summary judgment is not a casual procedure. It is a proceeding that bids fair to be dispositive of the case and casual or supine reaction to a moving party’s affidavits is not a minor error.”).

The facts set forth in this memorandum were determined in accordance with these principles and are either undisputed, not genuinely in dispute or, if properly supported by admissible evidence or reasonable inferences from such evidence, are stated in the light most favorable to the defendants (with respect to the Condominium’s claims) and in the light most favorable to the Condominium (with respect to Ms. Mumford and Mr. Markey’s request to be dismissed from the case). [Note 12]

Facts

The Development of Commercial Wharf and the Origin of the Easement

Commercial Wharf is a narrow, confined area containing the Condominium (94 residences and several first-floor commercial units that occupy the large granite building at the center of the wharf and the driveway and parking lots surrounding that building), two restaurants on the Atlantic Avenue edge of the wharf, small office buildings on the south side of the wharf, and the marina at the end of the wharf, all in close proximity to each other. See Exs. 1 & 2. Cars, trucks and delivery vehicles can only get onto, around, and off the wharf by using the narrow driveway (owned by the Condominium) that circles the Condominium building. Id. Both traffic (including its volume, entry, exit and circulation on the wharf) and parking are thus of great importance to the Condominium and its residents. [Note 13]

Commercial Wharf has been in existence since at least the 1830s, [Note 14] but its current configuration began with its purchase, in considerably dilapidated condition, by the Blue Water Trust in 1967. Commercial Wharf East Condo. Ass’n, 407 Mass. at 125. The Trust rehabilitated the granite block warehouse in the center of the wharf and, in 1978, turned the warehouse into condominium units and established the Condominium. Id. The Trust “originally intended to put only the granite building into condominium ownership and to retain the remainder of the wharf in its own name, but learned, however, that such a plan would violate the floor-area requirements of the Boston Zoning Code.” Id. Accordingly, to address this issue, the Trust granted the Condominium both the granite building and the driveway and parking area immediately surrounding the building and it retained the balance of the wharf for itself. Id. The retained portion of the wharf (the “retained land”) could only be accessed by going over the Condominium’s parking and driveway area. Id. at 127; Ex. 1. The Trust therefore created and recorded the Easement for such access immediately prior to recording the Condominium master deed. Commercial Wharf East Condo. Ass’n, 407 Mass. at 125.

The Easement expressly benefits all of the retained land (including Lot 1) and states that the Condominium Land shall be subject to the following:

the non exclusive right and easement to use the Condominium Land for vehicular and pedestrian access to the Retained Land for all purposes over the area shown as “Parking and Driveway”. . . including the right . . . to control and collect fees for the parking of vehicles in such area, subject to the right reserved to the owners of the Condominium Land to have adequate vehicular and pedestrian access to the Condominium building.

Easement at 1, ¶ 1(a). In 1990, the Supreme Judicial Court interpreted the scope of the rights retained by the Trust pursuant to that Easement and held that they included the right to manage and control the parking and driveway area and the power “to control and collect fees.” Commercial Wharf East Condo Ass’n, 407 Mass. at 132-36.

Subsequent to the recording of the Easement and the establishment of the Condominium, the Trust subdivided and sold the retained land as individual lots, including Lot 1. Id. at 126-27. Lots 4, 5 and 6, together with the right to control parking in the parking and driveway area (the Easement’s “management rights”), were sold to Waterfront Park Limited Partnership. Id. at 126, 132. The Condominium subsequently purchased Lots 4 and 5 and the Easement’s management rights from Waterfront and owns them today. Deed from Waterfront Park Limited Partnership to the Condominium (Apr. 23, 1999), recorded in the Suffolk County Registry of Deeds in Book 23682, Page 88. Pursuant to the Easement, the owners of Lot 1 and the other lots of the retained land have the right to pass and repass over the parking and driveway portion of the Condominium Land, subject to the Condominium’s right to manage and control the parking and driveway area and collect fees for its use. Commercial Wharf East Condo Ass’n, 407 Mass. at 132-36.

The Variance and Conditional Use Permit, the 1997 Settlement Agreement and Restrictions, and the Construction of the Marina as it Exists Today

Modern Continental purchased Lot 1 in December 1991 [Note 15] and, shortly thereafter, proposed extensive renovations to “improve and expand the existing marina facility.” Variance and Conditional Use Permit Decision at 2-3. These renovations involved the removal of two existing piers and an 11,000-square-foot, metal-framed building (the “steel building” referenced in note 1, supra) and the construction of a new pier, a new marina service building, and new pile-held floating docks. Id. Doing this required a Variance and Conditional Use Permit from the City of Boston, [Note 16] Article 31 approval from the Boston Redevelopment Authority (“BRA”), [Note 17] and a Chapter 91 license from the Department of Environmental Protection (“DEP”). Id.; see also Mumford Aff. at 5, ¶¶ 10-11. The Condominium, concerned about the impacts of the proposed uses of the renovated marina and its new service building, [Note 18] was closely involved in each of these proceedings, including filing a formal opposition to the DEP license application and a subsequent adjudicatory appeal.

The issuance of the Variance and Conditional Use Permit required a number of explicit findings by the Boston Board of Appeal, including the findings “[t]hat the granting of the variance will be in harmony with the general purpose and intent of [the Boston Zoning] Code and will not be injurious to the neighborhood or otherwise detrimental to the public welfare,” “[t]he specific site is an appropriate location for such use,” “[t]he use will not adversely affect the neighborhood,” “[t]here will be no serious hazard to vehicles or pedestrians from the use,” and “[n]o nuisance will be created by the use.” Variance and Conditional Use Permit Decision at 4-5. The Board was careful to describe the subsidiary facts on which it based these findings including, most importantly, the parameters of the project as represented by Modern Continental and relied upon by the Board. These included the following findings:

A new two-story building . . . will be constructed on the new pier to provide support services for the marina facility. The building will contain a marina chandlery and supply store, marina office, captain’s quarters, showers, laundry facilities, restrooms, and a marina food service facility. . . .

The marina will be accessed predominately by boat via the harbor, or by pedestrian access from Atlantic Avenue. A vehicle turn-around and parking area will be provided at the landward end of the new pier adjacent to the building as an accessory use for the convenience of marina users. Marina users will drop off guests and supplies at the pier and park off-site. Six parking spaces will be provided on the pier for transient and employee parking related to marina services.

Id. at 2-3 (emphasis added). Prior to the defendants’ purchase of the marina, there were only six parking spaces on Lot 1. Mumford Aff. at 14, ¶ 24.

Negotiations between the Condominium and Modern Continental regarding the marina continued even after the issuance of the Variance and Conditional Use Permit [Note 19] and the two ultimately negotiated a Letter of Intent (“LOI”) and a “Declaration, Covenant and Notice of Private Restriction” regarding the marina’s uses, both of which formed the basis of a settlement agreement between the Condominium, Modern Continental and the DEP (the “1997 Settlement Agreement”). The Condominium then withdrew its DEP appeal in accordance with that settlement and the DEP permit was issued in October 1997. Modern Continental began the renovations in 1998. The marina service building, as constructed and as it exists today, contains a reception desk, ten small guest rooms, a kitchen area, a first floor business conference room, a laundry room, men’s and women’s crew lockers and restrooms, and staff space. See Ex. 3A-C.

The 1999 Land Court Litigation, Modern Continental’s Agreement to the Deed Restrictions and Declaration in Settlement of that Litigation, and the Defendants’ Purchase of the Marina with Knowledge of, and Subject to, those Restrictions

On December 14, 1999, alleging that Modern Continental had repeatedly breached the terms of the 1997 Settlement Agreement in its construction and operation of the new marina building, the Condominium brought suit against Modern Continental in the Land Court and sought enforcement of the terms of the agreement and other relief. See n.18, supra. That case was ultimately settled and a stipulation of dismissal was filed in accordance with an agreement between the parties. 1999 Land Court Litigation, Stipulation of Dismissal (Nov. 24, 2003); Supp. Antonelli Aff. at Ex. 14, Agreement between Modern Continental and the Condominium (Nov. 5, 2003) (the “2003 Settlement Agreement”). Central to the 2003 Settlement Agreement was the termination of the LOI and the Declaration, Covenant and Notice of Private Restriction and their replacement by the current Deed Restrictions and Declaration, both of which were exhibits to the 2003 Settlement Agreement. 2003 Settlement Agreement at 1-26, Exs. G &H. Both the Deed Restrictions and the Declaration were signed by the Condominium and Modern Continental, both recited that they “shall be appurtenant to and benefit the Condominium Land and shall encumber and run with Lot 1 [the marina],” and both were duly recorded at the Suffolk County Registry of Deeds. [Note 20] See n. 3-4, supra. The Deed Restrictions, the Declaration, and the Declaration Amendment (which also encumbered and ran with Lot 1) were all known to the defendants at the time they purchased the marina. See n. 3, 4 & 6, supra. Moreover, the deed from Modern Continental to MGM expressly states that “[t]he Property [Lot 1] is conveyed subject to and with the benefit of all easements, restrictions, covenants and other instruments of record to the extent the same are applicable and in force and effect.” Defendants’ Deed at 1.

The Deed Restrictions

The Deed Restrictions place explicit limitations on the use of Lot 1, including the following in paragraph 1:

a. The current kitchen area on the first floor of the building on Lot 1 (the “Building”) may be used as a year round catering and commissary operation to provide food to registered guests of the guest rooms in the Building (the “Rooms”), Boston Yacht Haven boating customers and their guests (collectively, said registered guests, Boston Yacht Haven boating customers and their guests are referred to herein as the “Customers”) and for catering of off-site events. . . . The Declarant may provide catered meals, beverages, food, snacks, and room service to the Rooms, all of which may be prepared in the Building in conjunction with the operation of the Conference/Meeting/Office Center in the Building and the Rooms. The Rooms (the number of which will not exceed ten (10) on the second and third floor of the building) shall not be utilized by anyone for preparation or consumption of food for anyone other than the occupants. . . . Declarant [Note 21] further agrees that it will not apply for or exercise an entertainment license for the first floor of the Building or any other area on Lot 1. . . . The Declarant will not install tables on the existing pier on Lot 1 for consumption of food or beverages[.]

b. Lot 1 (including any building or structure thereon) shall not be used (i) as a function hall or (ii) for social events, such as, but not limited to, weddings, bar mitzvahs, school dances or holiday parties, provided however that up to four (4) special events per year open to privately invited guests or narrowly targeted audiences only may be conducted in the first floor and common areas of the building located on Lot 1 after notice to and approval of the Condominium Association (which approval shall not be unreasonably withheld or delayed) and which notice shall be delivered to the Condominium Association at least thirty (30) days prior to any such event. The Condominium Association agrees to notify the Declarant [defined as Modern Continental, together with its successors and assigns] of such approval or disapproval within ten (10) days after receipt of notice of such event. The Declarant agrees that the number of persons at such events shall not exceed the occupancy limits, in effect from time to time, of the first floor and common areas of the Building. . . .

c. Lot 1 (including any building or structure thereon) shall not be used for gambling or gaming activities except that any private, social game with no more than six participants will not be deemed a violation of these Covenants and Restrictions[.]

d. Lot 1 (including any building or structure thereon) shall not be used in any way, such as servicing, embarking, or disembarking, loading or unloading, for any of the following uses: (i) party/cruise/charter/excursion boats with a maximum capacity of thirty-five (35) people or more (party/cruise/charter/excursion boats being boats that offer access to a vessel, food, alcoholic beverages (including beer and wine) and service for a daily fee); (ii) boats with licenses to sell any alcoholic beverage, including beer and wine; (iii) boats that permit or provide gambling or gaming activities except for private, social games with no more than six participants; or (iv) ferries or any other boats or vessels providing transportation to the public (other than unscheduled water taxies carrying not more than four passengers); provided, however, that paragraphs (d)(i) through d(iv) shall not prohibit the storage of boats described therein so long as such boats are not used, operated or moored on Lot 1 for any use prohibited by the foregoing clauses (d)(i) through d(iv)[.]

e. All loading and unloading of routine commercial deliveries to Lot 1 shall occur on Lot 1 and not on the Condominium Land[.]

f. The Declarant and all persons and entities claiming by, through or under the Declarant shall comply, in the use of Lot 1 and access thereto through and over the Condominium Land, with all rules and regulations adopted from time to time by the Condominium Association concerning the administration of parking and traffic flow on the Condominium Land, which rules and regulations shall not impose greater fees, charges or obligations on, or grant lesser rights to, the Declarant and those persons and entities claiming by, through or under the Declarant than the fees, charges or obligations imposed on, or rights granted to, other commercial entities with access to or over the Condominium Land.

Deed Restrictions at 1-3.

Modern Continental (and its successors and assigns) [Note 22] “acknowledge[d] and agree[d] that the use restrictions and use limitations contained in [the Deed Restrictions] are of actual and substantial benefit to the Condominium Association,” that “any alleged breach of [the Deed Restrictions] or any other contract between the parties, or any alleged over burdening of any easement or right benefiting Lot 1 or the Condominium Land, as applicable, may be addressed by an action seeking monetary damages and/or injunctive relief,” that “[n]o failure by the Declarant or the Condominium Association to insist upon strict performance by the Declarant of the [Deed Restrictions] shall be deemed to be a waiver thereof,” and that “[t]he failure of the Declarant or the Condominium Association to exercise any right or remedy hereunder shall in no event be construed as a waiver or release thereof nor shall the choice of one remedy be deemed an election of remedies to the exclusions of other remedies.” Id. at 4 ¶¶ 4.a, 4.c; 5, ¶ 8.

For its part, “[t]he Condominium Association acknowledge[d] and agree[d] that [Modern Continental and its successors and assigns]’s right to park on, to have access across, and to install, utilize and maintain utilities in, on, under and through Lot 1 and the Condominium Land, as described in the [2003 Settlement Agreement], in recorded title documents, and in the [Declaration] are of actual and substantial benefit to Modern Continental.” Id. at 4, ¶ 4.b.

Importantly, “the Condominium Association and Modern Continental acknowledge[d] that parking on the Condominium Land and parking on Lot 1 will comply with applicable City of Boston and Commonwealth of Massachusetts ordinances and laws.” Id. at 5, ¶ 4.d. And, as previously noted, Modern Continental explicitly declared that “Lot 1 shall be held, transferred, sold, conveyed and occupied subject to and with the benefit of” all these restrictions and limitations. Id. at 1; see also id. at 4, ¶ 3 (Deed Restrictions “shall be appurtenant to and benefit the Condominium Land and shall encumber and run with Lot 1”).

The Declaration

The Declaration addresses the marina’s access and parking rights on both its own property (Lot 1) and Commercial Wharf generally, modifying all previous agreements except as expressly noted. Declaration at 1; 2, ¶ 2. Like the Deed Restrictions, it was entered into by the Condominium and Modern Continental “for themselves and their successors and assigns.” Id. at 1. The parties agreed that the Declaration “shall be appurtenant to and benefit the Condominium Land and shall encumber and run with Lot 1.” Id. at 6, ¶ 3. Also like the Deed Restrictions, the parties agreed “that parking on the Condominium Land and parking on Lot 1 will comply with applicable City of Boston and Commonwealth of Massachusetts ordinances and laws.” [Note 23] Id. at 7, ¶ 4.d.

The Declaration also outlined, in great detail, the following relevant rights and restrictions:

1. . . . . During any special event described in Paragraph 1(b) of the [Deed Restrictions] recorded herewith, [Note 24] Modern Continental will consult with the Condominium Association and provide appropriate traffic control and security on Lot 1 at its own expense as necessary. Modern Continental will comply with all rules and regulations adopted by the Condominium Association from time to time concerning administration of parking and traffic flow on the Condominium Land, which rules and regulations shall not impose greater fees, charges or obligations on, or grant lesser rights to, Modern Continental and those persons and entities claiming by, through or under Modern Continental, or conflict with the rights and obligations set forth herein, than the fees, charges or obligations imposed on, or rights granted to, other commercial entities with access to or over the Condominium Land.

2.a. Without intending to grant or create any new rights, the parties confirm and agree that the owner of Lot 1 has rights to nonexclusive licenses for eight parking spaces on the Condominium Land for the eight long term slip lessees commonly known as so-called “dockominium” owners and successor holders of these slip leases . . . and eighteen other nonexclusive licenses for parking spaces on the Condominium Land. . . . Subject to Paragraph 2(g) below, occupants of the guest rooms in the building on Lot 1 and other Boston Yacht Haven boating customers and their guests (collectively, such occupants of the guest rooms, Boston Yacht Haven boating customers and their guests are referred to herein as the “Customers”) will have the right to pass and repass, at no cost, over the Condominium Land and to park private passenger vehicles on Lot 1 as set forth herein. . . . The owner of Lot 1 will give a daily list of room occupants to the guard at the parking booth on the Condominium Land and those room occupants will be subject to the access system described in Paragraphs 2(b) and 2(d) below.

2.b. The Condominium Association hereby acknowledges that Modern Continental has the right to park vehicles on the surface of Lot 1 (of which four (4) vehicles may be vans, minivans, station wagons, SUV’s or automobiles used in connection with catering operation). In no event shall heavy construction equipment be parked on Lot 1 except as needed for repairs, reconstruction or renovation. Owners of service vehicles, repair vehicles and other vehicles related to uses permitted on Lot 1 shall not be required to pay any parking fee to the Condominium Association for said vehicles to access and park on Lot 1.

2.g. In addition to its deeded rights to nonexclusive licenses for parking on Condominium Land, Modern Continental may utilize its right of access to Lot 1 over Condominium Land to the following extent and such use shall be subject to the following limitations: (i) not more than one commercial pick up and delivery at any one time plus not more than four catering vehicles (which may be vans, minivans, station wagons, SUV’s or other automobiles) plus Federal Express, United Parcel Service, United States Post Office or similar delivery vehicles, (ii) for pick up and drop off of or by Customers but not to exceed six drop offs or pick ups at any one time, (iii) for rubbish removal from Lot 1, and (iv) subject to the above limitations, for other necessary purposes in connection with its operation, maintenance or ownership of Lot 1 and the improvements thereon and the minor maintenance of vessels berthed at Lot 1. Such drop offs, pickups and deliveries under subpart (ii) hereof shall not, however, remain on Lot 1 for longer than thirty (30) minutes. . . . With respect to any deliveries as permitted herein, no deliveries will be made before 8:00 a.m. on weekdays or before 9:00 a.m. on weekends and legal holidays enumerated in the Condominium Association’s rules and regulations and, except in emergencies, no commercial deliveries will be made on Sunday. The parties agree to revisit and discuss the number of pick ups and drop offs allowed at any one time (six) under subpart (ii) to see if, given experience over time, such number should be increased or reduced.

Id. at 2-5 (emphasis added).

In substantially identical fashion to the Deed Restrictions, Modern Continental “acknowledge[d] and agree[d] that the use restrictions and use limitations contained in [the] Declaration are of actual and substantial benefit to the Condominium Association,” that “any alleged breach of [the Declaration] or any other contract between the parties, or any alleged over burdening of any easement or right benefiting Lot 1 or the Condominium Land, as applicable, may be addressed by an action seeking monetary damages and/or injunctive relief,” that “[n]o failure by Modern Continental or the Condominium Association to insist upon strict performance of [the] Declaration shall be deemed to be a waiver thereof,” and that “[t]he failure of Modern Continental or the Condominium Association to exercise any right or remedy hereunder shall in no event be construed as a waiver or release thereof nor shall the choice of one remedy be deemed an election of remedies to the exclusions of other remedies.” Id. at 6, ¶ 4.a; 7, ¶¶ 4.c, 8. Again, for its part, the Condominium “acknowledge[d] and agree[d] that Modern Continental’s right to park on, to have access across, and to install, utilize and maintain utilities in, on, under and through Lot 1 and the Condominium Land, as described in the [2003 Settlement Agreement], in recorded title documents, and in the [Deed Restrictions] are of actual and substantial benefit to Modern Continental.” Id. at 6, ¶ 4.b.

The Declaration Amendment

As noted above, the Declaration contained a provision that allowed Modern Continental to purchase up to ten daily coupons for its customers to park in the Condominium’s lots. Id. at 3, ¶ 2.c. That provision was amended by the Declaration Amendment, which provided that, “[u]pon the sale of Lot 1 by Modern Continental to anyone other than an entity owned, in whole or in part, directly or indirectly, by Modern Continental Construction Co., Inc. or Modern Continental, Section 2(c) of the Declaration shall no longer be binding upon the Condominium Association.” Declaration Amendment at 1, ¶ 2. The remainder of the Declaration was “ratified, confirmed and approved in all respects.” Id. at 1, ¶ 4. The defendants were not only aware of this amendment, but specifically agreed that it could be “execute[d], deliver[d] and record[ed]” as an additional “Permitted Encumbrance[]” on the property. Defendants’ P&S Agreement at 2, ¶ 5. Therefore, when Modern Continental sold the marina to the defendants, the Condominium’s obligation to sell these daily coupons ceased. Declaration Amendment at 1, ¶ 2.

The Defendants’ Purchase and Operation of the Marina

The defendants acquired the marina from Modern Continental on September 9, 2005, “subject to and with the benefit of all easements, restrictions, covenants and other instruments of record to the extent the same are applicable and in force and effect.” Defendants’ Deed at 1. The marina was titled in the name of MGM. Id. The other defendants’ relationships to the marina have previously been described in note 2, supra.

Since the time of their purchase, the defendants have held events, parked vehicles, and otherwise operated the marina in ways that the Condominium alleges are in clear violation of the restrictions. These include repeatedly parking more than six vehicles on the marina lot, holding wedding receptions, parties, corporate and law firm functions, and other events at the marina without first seeking or obtaining the Condominium’s assent, and holding more events than the four per year the restrictions permit if assent is obtained. The facts regarding many of these are not genuinely in dispute and are set forth below. Other facts relevant to the matters at issue in these motions, to the extent they are either undisputed or not genuinely in dispute, are also set forth below.

Analysis

The Restrictions Are Valid and Enforceable against the Defendants

The defendants challenge the meaning, interpretation and applicability of the various restrictions at issue in this case, arguments that will be addressed below, but their first and primary assertion is that the Deed Restrictions, the Declaration, and the Declaration Amendment currently have no force or effect whatsoever. This assertion is based on two arguments, neither of which has merit.

The defendants’ first argument starts with the premise that the restrictions were signed by a “mere licensee” of Lot 1 (Modern Continental). Based upon that, they then argue that without the approval and signatures of the BRA (asserted to be the true owner of Lot 1) and the DEP (alleged to be “the delegee of the Legislature assigned to protect the public’s rights under the public trust doctrine”), the restrictions are “invalid and unenforceable.” Memorandum in Opposition to Plaintiff’s Motion for Summary Judgment and In Support of Defendants’ Cross-Motion for Summary Judgment at 6-7 (Aug. 23, 2007) (“Defendants’ Mem.”). These arguments are incorrect.

To begin with, Modern Continental was not a “mere licensee,” but rather was the fee simple owner of Lot 1 subject to a condition subsequent that the Lot be used in accordance with the purpose expressed in St. 1832, c. 51; St. 1837, c. 229; and St. 1839, c. 25. [Note 25] See Boston Waterfront Development Corp. v. Commonwealth, 378 Mass. 629 , 631 (1979). Neither the Commonwealth nor the BRA has invoked this condition subsequent, so presumably they are satisfied it has not been violated and Lot 1 has been used consistent with the statutory purpose. In any event, the defendants do not have standing to invoke it. Fee simple title thus existed and remains. Moreover, the defendants’ assertion that neither they nor Modern Continental ever owned Lot 1 is not only an odd one given their payment of $11,748,000 for the Lot, Defendants’ Deed at 1, but it also is directly contrary to their explicit and unambiguous statements of such ownership in their pleadings. [Note 26] Such an admission binds them in this litigation. [Note 27] G.L. c. 231, § 87. In addition, the defendants’ argument that they do not own the marina is in direct contradiction to the decisions in Boston Waterfront Development Corp., 378 Mass. at 631 (construing legislative grants of wharf properties in Boston in the 1830s and concluding that they conveyed “fee simple” to the wharves subject to a condition subsequent) and Commercial Wharf East Condominium Ass’n, 407 Mass. at 126-27 (statement that Lot 1 and the surrounding marinas were owned by defendants’ predecessor in title, East Commercial Wharf).

In addition, the ownership of the tidelands underneath Lot 1 is immaterial to the enforceability of restrictions regarding the use of the wharf. At the very least, both Modern Continental and its successors clearly own the wharf and its structures above those tidelands pursuant to the legislative grants referenced above. Those legislative grants were not a mere license, but instead were explicitly a fee simple grant capable of conveyance. St. 1832, c. 51 (“and said company shall have and enjoy the right . . . to grant, sell, and alien, in fee simple, or otherwise convey their corporate property or any part thereof”). Thus, the holders and successors of those grants could place appurtenant restrictions on the use of those wharves and structures (the land so burdened) and bind their successors. Commercial Wharf East Condominium Ass’n, 407 Mass. at 133-34 (recognizing the appurtenant and binding effect of easements affecting the entirety of Commercial Wharf, including Lot 1); see also Stop & Shop Supermarket Co. v. Urstadt Biddle Properties, Inc., 433 Mass. 285 , 288 (2001) (landowners free to “burden or benefit their land with use restrictions”).

The defendants’ second argument is that the public interest somehow acts to invalidate these restrictions. This argument fails because the restrictions at issue do not conflict with the public interest, the private parties involved were free to agree and be bound by them, and the defendants do not have standing to raise a public interest objection. See Patterson v. Paul, 448 Mass. 658 , 665 (2007) (“The terms and conditions under which an easement may be created and the manner of its exercise are within the control of the parties so long as no forbidding principle of law is violated”); Hertz v. Secretary of the Executive Office of Energy and Environmental Affairs, 73 Mass. App. Ct. 770 , 771-76 (2009) (abutters lacked standing “to assert claims of harm to their private property” under harbor plan and trust lands regulations). The public interest in tidelands is “to use tidelands for lawful purposes [fishing, fowling and navigation], and to preserve any public rights of access that are associated with such use. . . .” Id. at 772 n. 6 (citing 301 Code Mass. Regs. § 23.05 (2)(a)(2)). More generally, those rights include “the right of the people to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and aesthetic qualities of their environment under Article XCVII of the Massachusetts Constitution.” Id. at 773 n. 7 (citing 301 CMR § 23.01(2)).

The restrictions at issue regulate vehicular access and parking on Commercial Wharf, limit the type and number of functions that the defendants can have at their privately-owned marina, and prohibit the use of the marina by commercial party, excursion and ferry boats. As already noted, the Supreme Judicial Court has already held that access and parking on the wharf may be subject to private restrictions. Commercial Wharf East Condominium Ass’n, 407 Mass. at 135-36. Furthermore, none of these restrictions infringe upon public rights. None of the restrictions affect public access to the waterfront. None affect the public’s right to fish, fowl or navigate. None violates any provision of the Boston Zoning Code, the Variance and Conditional Use Permit, the DEP licenses, or the BRA Chapter 31 approval. [Note 28] And none affects (except positively) “the right of the people to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and aesthetic qualities of their environment.” Hertz, 73 Mass. App. Ct. at 773 n. 7 (citing 301 CMR § 23.01(2)). More importantly, the defendants do not have standing to raise the public interest as grounds for a challenge to their private obligations. Hertz, 73 Mass. App. Ct. at 771-776; see also Commercial Wharf East Condominium Ass’n v. Mumford, Appeals Court Case 06-J-451, Order denying G.L. c. 231, § 118 (first par.) petition from the preliminary injunction entered in this case (Aug. 31, 2006) (“What I see, as did the motion judge, is the defendants wrapping themselves in the flag of the public interest provisions of G.L. c. 91 and G.L. c. 184, § 30 in order to protect a private commercial venture carried on in violation of enforceable deed and permit restrictions.”). The defendants are not the Commonwealth of Massachusetts, the City of Boston, the DEP, or the BRA and the rights affected by the restrictions are solely the defendants’ private, commercial ones.

To the extent there is a public interest at stake in this litigation, it is the public interest in enforcing contractual obligations, property rights, and the settlement of lawsuits. Since the defendants derive all of their rights in Lot 1 from Modern Continental and were fully aware of the appurtenant nature of the restrictions at the time of their purchase, they are fully bound by those restrictions. Commercial Wharf East Condominium Ass’n, 407 Mass. at 131-39 (construing and enforcing private access and parking easement affecting the entirety of Commercial Wharf, including Lot 1);Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85 , 90-99 (1979) (covenants recognized as enforceable against successor owners under both “real covenant” and “contract” analyses); Emmons v. White, 58 Mass. App. Ct. 54 , 60-62 (2003) (successor owner, on actual notice of predecessor’s release of easement rights, bound by that release). This is particularly so in this case where the restrictions were the result of the settlement of a lawsuit challenging the right to build the very structure (the marina service building) whose use is now at issue. That lawsuit was dismissed and the Condominium’s opposition to the construction of the marina building was withdrawn in direct reliance on the covenants restricting the future use of that structure and its associated parking (the restrictions at issue here) and the parties’ agreement that those covenants would be appurtenant and bind all of their successors. The marina building has now been built. To allow it to be used free and clear of the restrictions would completely undercut that carefully negotiated settlement.

Accordingly, the Deed Restrictions, the Declaration, the Declaration Amendment, the Easement and the Variance and Conditional Use Permit are all valid, appurtenant to Lot 1, and enforceable against the defendants. [Note 29]

The Meaning and Scope of the Deed Restrictions, the Declaration, the Declaration Amendment, the Easement, and the Variance and Conditional Use Permit

The meaning and scope of the Deed Restrictions, the Declaration, the Declaration Amendment, the Easement, and the Variance and Conditional Use Permit have been extensively litigated and discussed in connection with the preliminary injunction. [Note 30] They are clear, they mean exactly what they say, and they can be summarized as follows:

• The marina building may not have more than ten guest rooms. Deed Restrictions at 1-2, ¶ 1.a.

• The kitchen area in the marina building may only be used to prepare and provide food to (a) “registered guests of the guest rooms,” [Note 31] (b) boating customers, (c) the guests of those boating customers, and (d) for catering off-site events. Id.

• No food may be prepared in the guest rooms. Id.

• No one may consume food in the guest rooms unless they are “occupants” of those rooms. [Note 32] Id.

• An entertainment license may not be sought or exercised for any part of Lot 1. Id.

• No tables may be installed on Lot 1’s pier for consumption of food or beverages. Id.

• Lot 1 and any building or structure on that Lot shall not be used for the following:

o as a function hall, or

o for social events, “such as, but not limited to, weddings, bar mitzvahs, school dances [or] holiday parties,” with only one narrow exception: “up to four (4) special events per year open to privately invited guests or narrowly targeted audiences only may be conducted in the first floor and common areas of the building located on Lot 1 [the marina building].” Id. at 2, ¶ 1.b. However, such events can occur only “after notice to and approval of the Condominium Association (which approval shall not be unreasonably withheld or delayed) and which notice shall be delivered to the Condominium Association at least thirty (30) days prior to any such event.” Id. The Condominium is required to give notice of its approval or disapproval no later than ten days after it receives notice of the proposed event. Id. at 2-3, ¶ 1.b. Attendance at these “special events” may not exceed the occupancy limits of the first floor and common areas. Id. at 3, ¶ 1.b. For each of these four “special events,” the owner of Lot 1 is to “provide appropriate traffic control and security on Lot 1 at its own expense as necessary.” Declaration at 2, ¶ 1.

• No gambling or gaming is permitted anywhere on Lot 1 except for “private, social game[s] with no more than six participants.” Deed Restrictions at 3, ¶ 1.c.

• There can be no more than six parking spaces on Lot 1. Variance and Conditional Use Permit Decision at 3-5; [Note 33] Deed Restrictions at 5, ¶ 4.d (parking on Lot 1 to comply with applicable City of Boston ordinances and laws); Declaration at 7, ¶ 4.d (same).

• Lot 1’s owners, the occupants of its guest rooms, its boat owners, the guests of those boat owners, and Lot 1’s rubbish removers and repair persons have the right to pass and repass at no cost over the Condominium land to get to Lot 1. Declaration at 2, ¶ 2.a; 5, ¶ 2.g; Easement at 1, ¶ 1.a. However, such access is subject to the following limitations:

o A daily list of guest room occupants must be provided to the guard at the Condominium’s parking booth. Declaration at 3, ¶ 2.a.

o There can be no more than one commercial pick up and delivery, four catering vehicles, and whatever Federal Express, United Parcel Service, United States Post Office or similar delivery vehicles are engaged in making deliveries, on Lot 1 at any one time. Id. at 5, ¶ 2.g. Note, however, that the total number of these vehicles parked on Lot 1 cannot exceed six at any given time due to the parking space restriction noted above.

o There can be no more than six customer drop-offs or pick-ups on Lot 1 at any one time and none of those drop-off or pick-up vehicles can remain on the Lot for more than thirty minutes. Id.

o No deliveries can be made before 8:00 a.m. on weekdays or before 9:00 a.m. on weekends and holidays and, except in emergencies, no commercial deliveries can be made on Sundays. Id.

• Access to Lot 1 through the Condominium’s driveway and parking lot and the use of parking spaces on Condominium property by those associated with the marina must comply with the Condominium’s rules and regulations regarding parking and traffic flow on the Condominium land. However, the fees, charges and obligations so imposed may not be greater than the fees, charges and obligations imposed on other commercial entities with access to or over Condominium land. Deed Restrictions at 3, ¶ 1.f.; Declaration at 2, ¶ 1.

• “All loading and unloading of routine commercial deliveries to Lot 1 shall occur on Lot 1 and not on the Condominium land.” Deed Restrictions at 3, ¶ 1.e (emphasis added).

• Up to four of the vehicles that are allowed to be parked on Lot 1 “may be vans, minivans, station wagons, SUV’s or automobiles used in connection with [Lot 1’s] catering operation.” Declaration at 3, ¶ 2.b. Heavy construction vehicles are prohibited “except as needed for repairs, reconstruction or renovation” on Lot 1. Id.

• Neither Lot 1 nor any building or structure on the Lot may “be used in any way, such as servicing, embarking, or disembarking, loading or unloading, for and of the following uses: (i) party/cruise/charter/excursion boats with a maximum capacity of thirty-five (35) people or more ([such boats] being boats that offer access to a vessel, food, alcoholic beverages (including beer and wine), and service for a daily fee); (ii) boats with licenses to sell any alcoholic beverages, including beer and wine; (iii) boats that permit or provide gambling or gaming activities except for private, social games with no more than six participants; or (iv) ferries or any other boats or vessels providing transportation to the public (other than unscheduled water taxis carrying not more than four passengers); provided, however, that paragraphs (d)(i) through (d)(iv) shall not prohibit the storage of boats described therein so long as such boats are not used, operated or moored on Lot 1 for any use prohibited by the foregoing clauses (d)(i) through (d)(iv).” Deed Restrictions at 3, ¶ 1.d.

The defendants do not contest my interpretation of the bulk of these restrictions (set forth at length in the court’s injunctive orders), [Note 34] but instead quarrel only with two. First, they contend that my interpretation is “overbroad in constraining the use of the food services.” Defendants’ Mem. at 21-26. Second, they contend that they are not limited to six parking spaces on Lot 1. I disagree with both contentions.

I begin with “basic principle[s].” Patterson v. Paul, 448 Mass. at 665. As noted above, the restrictions are covenants appurtenant to and running with the land. [Note 35] Commercial Wharf East Condominium Ass’n, 407 Mass. at 131-37; see also Whitinsville Plaza, Inc., 378 Mass. at 90-99. They are also contractual in nature, with terms that bind Modern Continental’s assignees, like the defendants, who have knowledge of the restrictions. Whitinsville Plaza, Inc., 378 Mass. at 99. As such, their interpretation is a question of law for the court to determine. See Massachusetts Municipal Wholesale Electric Co. v. City of Springfield, 49 Mass. App. Ct. 108 , 111 (2000); Sullivan v. Southland Life Ins. Co., 67 Mass. App. Ct. 439 , 442 (2006). The rules governing such interpretation are clear. “A restriction, like a deed, is to be construed so as to give effect to the intent of the parties as manifested by the words used, interpreted in the light of the material circumstances and pertinent facts known to them at the time it was executed.” Weston Forest and Trail Association, Inc. v. Fishman, 66 Mass. App. Ct. 654 , 661 (2006) (internal citations and quotations omitted); see also Patterson, 448 Mass. at 665 (meaning to be “ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances”). “In addition, the restriction must be construed beneficially, according to the apparent purpose of protection or advantage . . . it was intended to secure or promote.” Weston Forest, 66 Mass. App. Ct. at 661 (internal citations and quotations omitted, alteration in original). Words are given “their plain meaning if they are unambiguous,” but “[a]n ambiguity is not created simply because a controversy exists between the parties. . . . Nor does the mere existence of multiple definitions of a word, without more, suffice to create an ambiguity, for most words have multiple definitions. Furthermore, difficulty in comprehension does not equate with ambiguity.” Sullivan, 67 Mass. App. Ct. at 442-43 (citations and quotations omitted). Therefore, in interpreting the restrictions, the words are to be given “the fair meaning of the language used, as applied to the subject matter,” construed in the context of “the contract as a whole, in a reasonable and practical way, consistent with its language, background and purpose” and “to give reasonable effect to each of its provisions.” Id. at 442 (quotations and citations omitted, emphasis added); see also Patterson, 448 Mass. at 665 (“the grant or reservation must be construed with reference to all its terms and the then existing conditions so far as they are illuminating,” emphasis added, internal quotations and citations omitted).

Two preliminary points are beyond any possible controversy and provide context to my interpretations of the restrictions. First, the restrictions are considered vitally important by the Condominium and its residents. They have long been concerned with the potential use of the marina as a restaurant or function facility and the impacts of such uses on the Condominium. [Note 36] They would not have dismissed the 1999 Land Court Litigation without signing and recording the Deed Restrictions and the Declaration. 2003 Settlement Agreement at 3-4. Indeed, both the Deed Restrictions and the Declaration contain the acknowledgement and agreement that “the use restrictions and use limitations contained [therein] are of actual and substantial benefit to the Condominium Association.” Declaration at 6, ¶ 4.a (emphasis added); Deed Restrictions at 4, ¶ 4.a (same). Second, there was an express agreement that any breach of the restrictions and any overburdening of the Easement “may be addressed by an action seeking monetary damages and/or injunctive relief.” Declaration at 7, ¶ 4.c; Deed Restrictions at 4, ¶ 4.c.

Keeping this background in mind and applying the above-outlined principles, the restrictions are as follows. The restrictions prohibit the use of “Lot 1 (including any building or structure thereon) . . . (i) as a function hall or (ii) for social events. . . .” Deed Restrictions at 2, ¶ 1.b. There is only one exception to this very clear prohibition. There can be “up to four (4) special events per year open to privately invited guests or narrowly targeted audiences only . . . .” Id. Further, these four events must first be approved by the Condominium before they can take place. Id. All of the other restrictions must be read in harmony with this prohibition.

The restrictions limit the permissible use of the marina’s kitchen, which may be used only “to provide food to registered guests of the guest rooms in the Building (the ‘Rooms’), Boston Yacht Haven boating customers and their guests (collectively, said registered guests, Boston Yacht Haven boating customers and their guests are referred to herein as the ‘Customers’) and for catering off-site events.” Id. at 1-2, ¶ 1.a. The defendants argue that food may be provided to both “registered guests of the guest rooms” and the guests of those guests, but their interpretation is clearly wrong.

First, it is wrong as a matter of textual analysis. If “and their guests” modified both “Boston Yacht Haven Boating customers” and “registered guests of the guest rooms,” it would have a comma before it to show its independence from “boating customers.” To the extent there is any ambiguity in this textual reading, it is eliminated by a later sentence in the same paragraph which allows the sale of sundries [Note 37] to “guests of the Rooms and . . . the Customers,” showing that “guests of the Rooms” (i.e., guests of the registered guests of those rooms) are not within the definition of “Customers” (registered guests of the rooms and boating customers and their guests) to whom food may be served. Id. at 2, ¶ 1.a. (emphasis added).

Second, the remainder of paragraph 1.a corroborates this reading and shows that “registered guests” and “occupants” are used as equivalent terms. As it states, “[t]he Rooms (the number of which will not exceed ten (10) on the second and third floor of the building) shall not be utilized by anyone for preparation or consumption of food for anyone other than the occupants. No kitchens will be permitted in the Rooms, but a coffee maker, microwave, hot plate, mini-refrigerator and mini bar and other similar amenities customarily provided in hotel guest rooms may be installed for use by the occupants of the Rooms.” Id. (emphasis added). Coffee makers, microwaves, and so forth are customarily provided solely for the persons sleeping in that room, thus showing the intent to confine the meaning of the term “occupants” to those persons.

Third, and most importantly, allowing “guests of the guests” to be served in the rooms manipulates and evades the clear restrictions on function hall and social events (a maximum of four per year, provided prior permission has been obtained). If the defendants’ interpretation was correct, an unlimited number of such events could be held at the marina simply by locating them in the guest rooms and crowding in as many people as the rooms can hold. As noted above, this would be a direct violation of paragraph 1.b and thus cannot be so. There can be no doubt of this. Again, paragraph 1.b prohibits the use of any part of the marina as a “function hall” and limits the number of “social events” at the marina to a maximum of four per year, provided they are pre-approved by the Condominium. “Social events” are defined very broadly to include, but not be limited to, “weddings, bar mitzvahs, school dances or holiday parties . . . .” Deed Restrictions at 2, ¶ 1.b. Many, if not all, of the events that the defendants seek to exclude from falling within the restrictions on the grounds that the prohibitions do not apply to events held in the guest rooms are clearly wedding or holiday-type parties and thus fall within the definition of “social events” or function.

The defendants seek to avoid these clear limitations by arguing that the 2003 Settlement Agreement (which they argue should control) allows for a more expansive food service. In effect, they argue it allows them to hold an unlimited number of private parties and corporate/law firm events at the marina so long as they are held upstairs. They base this argument on Section 2A of the 2003 Settlement Agreement, which states that “Modern Continental agrees that the First Floor Space shall not be used for any of the uses prohibited by this Agreement or in Exhibit H hereto, for cocktail parties or, as a function hall, or to hold social events . . .” and the lack of any parallel language in Section 7B (Rooms). 2003 Settlement Agreement at 6 (emphasis added). In contrast, the Deed Restrictions are not limited to the First Floor Space, but instead apply to the entirety of “Lot 1 (including any building or structure thereon)” and thus to the entirety of the marina building, including its upstairs guest rooms. Deed Restrictions at 2, ¶ 1.b.

As an initial matter, any discrepancy between the 2003 Settlement Agreement and the restrictions is resolved in favor of the restrictions. This is so for three reasons. First, specific and more restrictive terms govern over general, less restrictive language. Lembo v. Waters, 1 Mass. App. Ct. 227 , 233 (1973) (“If the apparent inconsistency is between a clause that is general and broadly inclusive in its character and one that is more limited and specific in its coverage, the latter should generally be held to operate as a modification and pro tanto nullification of the former.” (quoting Corbin, Contracts § 547 at 176)). Clearly the Deed Restriction’s inclusion of the restriction on functions and social events for the entirety of Lot 1 was deliberate. Second, the fact that the restrictions were recorded and the 2003 Settlement Agreement was not recorded shows a clear intent for the restrictions to prevail. Third, the 2003 Settlement Agreement was between only Modern Continental and the Condominium. In contrast, the restrictions were explicitly made appurtenant and binding on Modern Continental, the Condominium and their successors.

Read “as a whole, in a reasonable and practical way, consistent with its language, background and purpose” and “to give reasonable effect to each of its provisions,” Sullivan, 67 Mass. App. Ct. at 442, the 2003 Settlement Agreement’s failure to include parallel language for the rooms cannot fairly be interpreted as an intentional exception for those rooms. Section 3 of the Settlement Agreement makes clear that Modern Continental intended to hold all of its events in the First Floor Space and common areas only. Section 7B (Rooms) similarly makes it explicit that the Rooms were to be used “as guest rooms,” not as party space. 2003 Settlement Agreement at 8, 11 (emphasis added). There was thus no need for parallel language in Section 7B because the parties never intended for the Rooms to be used as anything other than guest rooms. In any event, the Deed Restrictions, signed by the same parties at the same time, removed any possible ambiguity.

The defendants’ objection to the limitation of six parking spaces on Lot 1 is easily answered. The Variance and Conditional Use Permit Decision requires it, the Deed Restrictions and Declaration both incorporate it by reference (giving the Condominium standing to enforce it directly), and the six-space restriction was fully honored at all times up until the defendants sought to evade it. There is no legitimate basis for such evasion and the defendants are bound by the restriction.

Repeated, Indisputable Violations of the Restrictions Have Occurred

Not only were the defendants fully aware of the restrictions at the time they began their operation of the marina, the Condominium has also given notice to the defendants of their violations from the beginning. Complaint at Ex. 16 (letter from Condominium to Yovette Mumford (May 3, 2006); Aff. of Jeffrey Federspiel at Exs. C, E (Jul. 6, 2006) (letters from the Condominium to Yovette Mumford, dated Oct. 4, 2005 and Dec. 16, 2005). There can thus be no question that the defendants’ conduct was knowing, deliberate and intentional. That conduct includes the following: [Note 38]

• June 24, 2006. A wedding reception was held without seeking or obtaining the Condominium’s prior assent. Aff. of Cheryl Delgreco (June 30, 2006). This was a violation of the Deed Restrictions at 1-3, ¶¶ 1.a and 1.b.

• July 28, 2006. A Keegan Werlin, LLP function was held with approximately twenty-eight people attending, seated at three, ten-person tables each set with tablecloths and candles. The Condominium’s assent was neither sought nor obtained. The marina kitchen provided full food service for the event, including clam chowder, steamed clams, lobster, chicken, potatoes, corn, baked beans, salad, mixed berry shortcake and beverages. Keegan Werlin, LLP stocked the open bar and the defendants provided the bartender and charging for “corkage.” [Note 39] Contempt Trial Transcript, Vol. IV at 200-05; Contempt Trial Ex. 51. This was a violation of the Deed Restrictions at 1-3, ¶¶ 1.a and 1.b.

• July 28, 2006. Thirteen motor vehicles were parked on Lot 1 for over forty-five minutes. Eleven were located in the front of the marina building and two were on the Harborwalk at the side of the building. Contempt Trial Transcript, Vol. III at 197-99 (Sept. 19, 2007). This was a violation of the Variance and Conditional Use Permit, the Deed Restrictions at 5, ¶ 4.d, and the Declaration at 4-5, ¶ 2.g and 7, ¶ 4.d.

• August 12, 2006. A wedding party for Phoebe Forman and Jeff Guevin was held with approximately twenty people attending. The Condominium’s assent was neither sought nor obtained. The event was held in the first floor business conference room (shown on Exhibit 3B as the room at the end of the main hallway between the kitchen and the marina office) [Note 40] and the Harborwalk on Lot 1. Ms. Forman and Mr. Guevin also rented two guest rooms, which were also used by the guests of the wedding. The marina kitchen provided full food service for the event, including “gazpacho, salad, sirloin, swordfish, asparagus, mashed potato, vegetable crudités and spinach dips, and soft drinks.” Defendants’ Interrogatory Answers at Answer No. 6.1; Contempt Trial Ex. 4, Letter to the court from defendants’ attorneys at 1 (Aug. 15, 2006). Tables were set with floral centerpieces, food was served by waiters and waitresses, and a bar served drinks. Aff. of Cheryl Delgreco Supporting Complaint for Contempt at 1-2, ¶¶ 2-6 (Aug. 30, 2006); see also Aff. of Brigitte Cazalis-Collins Supporting Complaint for Contempt (Sept. 7, 2006); Contempt Trial Exs. 42, 53; Contempt Trial Transcript, Vol. I at 61-79, 130-40 (Sept. 5, 2007); Contempt Trial Transcript, Vol. II at 232-36 (Sept. 6, 2007); Contempt Trial Transcript, Vol. III at 16-23, 222 (Sept. 19, 2007). This was a violation of the Deed Restrictions at 1-3, ¶¶ 1.a and 1.b.

• August 12, 2006. A birthday party hosted by Richard Mullen for Lisa Mullen was held with approximately thirty people attending. [Note 41] The Condominium’s assent was neither sought nor obtained. This event was held in the first floor business conference room, guest rooms rented by Mr. Mullen, and the Harborwalk on Lot 1. The Marina kitchen provided full food service for the event, including “roast beef, Dijon chicken, spinach salad, chowder, shrimp, oysters, sea scallops, crudités and dip, soft drinks, and birthday cake” and the Mullens provided an open bar. Defendants’ Interrogatory Answers at Answer No. 6.2; Contempt Trial Ex. 4 at 1-2; see also Contempt Trial Exs. 42, 54. This was a violation of the Deed Restrictions at 1-3, ¶¶ 1.a and 1.b.

• August 12, 2006. Thirteen motor vehicles were parked on Lot 1 for over an hour. Contempt Trial Transcript, Vol. III at 30-35. This was a violation of the Variance and Conditional Use Permit, the Deed Restrictions at 5, ¶ 4.d, and the Declaration at 4-5, ¶ 2.g and 7, ¶ 4.d.

• August 19, 2006. Twelve motor vehicles were parked on Lot 1 for over an hour. Contempt Trial transcript, Vol. III at 37-38. This was a violation of the Variance and Conditional Use Permit, the Deed Restrictions at 5, ¶ 4.d, and the Declaration at 4-5, ¶ 2.g and 7, ¶ 4.d.

• August 19-20, 2006. Thirteen motor vehicles were parked on Lot 1 overnight. Aff. of Robert Morgan Supporting Complaint for Contempt at 2, ¶¶ 7-8 (Sept. 8, 2006) (“Morgan Aff.”); Contempt Trial Transcript, Vol. III at 38-39. This was a violation of the Variance and Conditional Use Permit, the Deed Restrictions at 5, ¶ 4.d, and the Declaration at 4-5, ¶ 2.g and 7, ¶ 4.d.

• August 25, 2006. More than six motor vehicles were parked on Lot 1 for more than an hour. Contempt Trial Transcript, Vol. I at 151-52. This was a violation of the Variance and Conditional Use Permit, the Deed Restrictions at 5, ¶ 4.d, and the Declaration at 4-5, ¶ 2.g and 7, ¶ 4.d.

• August 26, 2006. A breakfast function hosted by Elaine Sarney was held with reservations for thirty people. The Condominium’s assent was neither sought nor obtained. The marina kitchen provided a full range of breakfast foods, including an omelette station. Breakfast was served in the marina’s front lobby. Ms. Sarney provided an open bar and the marina charged for a bartender and “corkage.” Contempt Trial Ex. 56; Contempt Trial Transcript, Vol. IV at 214-17. This was a violation of the Deed Restrictions at 1-3, ¶¶ 1.a and 1.b.

• August 26, 2006. Nine to fourteen motor vehicles were parked on Lot 1. Morgan Aff. at 2, ¶ 9; Contempt Trial Transcript, Vol. III at 41-42. This was a violation of the Variance and Conditional Use Permit, the Deed Restrictions at 5, ¶ 4.d, and the Declaration at 4-5, ¶ 2.g and 7, ¶ 4.d.

• August 27, 2006. Eight to ten motor vehicles were parked on Lot 1, eight of which were there for at least two hours. Morgan Aff. at 2-3; Contempt Trial Transcript, Vol. III at 44-46. This was a violation of the Variance and Conditional Use Permit, the Deed Restrictions at 5, ¶ 4.d, and the Declaration at 4-5, ¶ 2.g and 7, ¶ 4.d.

• August 30, 2006. Ten motor vehicles were parked on Lot 1, seven of which were there for over thirty minutes. Contempt Trial Transcript, Vol. III at 47-48. This was a violation of the Variance and Conditional Use Permit, the Deed Restrictions at 5, ¶ 4.d, and the Declaration at 4-5, ¶ 2.g and 7, ¶ 4.d.

• August 31, 2006. Eleven motor vehicles were parked on Lot 1, ten of which were there for over thirty minutes. Contempt Trial Transcript, Vol. III at 50. This was a violation of the Variance and Conditional Use Permit, the Deed Restrictions at 5, ¶ 4.d, and the Declaration at 4-5, ¶ 2.g and 7, ¶ 4.d.

• September 14, 2006. An event with eight people attending was held in a guest room. [Note 42] The Condominium’s assent was neither sought nor obtained. The marina kitchen “provided room service.” Defendants’ Interrogatory Answers at Answer No. 6.3. This was a violation of the Deed Restrictions at 1-3, ¶¶ 1.a and 1.b.

• September 14, 2006. A lunch buffet for the National Cowboy & Western Heritage Museum for twelve people was served in guest room 206, possibly with the furniture entirely removed and tables set up in their place. [Note 43] The Condominium’s assent was neither sought nor obtained. The marina kitchen provided full food service, including salad, schrod, sirloin beef tips, potatoes, vegetables and beverages. Contempt Trial Ex. 57; Contempt Trial Transcript, Vol. IV at 232-35. This was a violation of the Deed Restrictions at 1-3, ¶¶ 1.a and 1.b.

• December 2, 2006. A dinner function for CC Stephens & Co. for thirteen people was held in guest room 206. The Condominium’s assent was neither sought nor obtained. The “room [was] decorated for festivities” and one square table and thirteen chairs were provided. The marina kitchen provided full food service, including antipasto, prime rib, shrimp scampi, Dijon chicken, potatoes, vegetables, dessert and some beverages. CC Stephens also had its own beverage service and the marina charged for “set ups.” Contempt Trial Exs. 58 and 59. This was a violation of the Deed Restrictions at 1-3, ¶¶ 1.a and 1.b.

• December 2, 2006. Ten motor vehicles were parked on Lot 1, nine of which were there for over thirty minutes and eight were there for over an hour. Contempt Trial Transcript, Vol. III at 59-63. This was a violation of the Variance and Conditional Use Permit, the Deed Restrictions at 5, ¶ 4.d, and the Declaration at 4-5, ¶ 2.g and 7, ¶ 4.d.

• December 9, 2006. A dinner function for Stebbins-Duffy, Inc. for twenty-two people was held in guest room 206. The Condominium’s assent was neither sought nor obtained. The marina kitchen provided full food service, including hors d’oeuvres, shrimp, oysters, clams, tenderloin and sole with lobster buffet dinners. The marina also provided a bartender and floral centerpieces and charged a “corkage fee” of ten dollars per person. Contempt Trial Ex. 60. This was a violation of the Deed Restrictions at 1-3, ¶¶ 1.a and 1.b.

• December 20, 2006. A lunch function for Foster Dykema Cabot & Co. for thirteen people was held in guest room 206 (described on the invoice as “luncheon room 206”). The Condominium’s assent was neither sought nor obtained. The marina kitchen provided full food service, including appetizers and $50 per person dinners, and charged a $10 per person “corkage fee.” Contempt Trial Ex. 95, Contempt Trial Transcript, Vol. V at 240-43, 252-53. This was a violation of the Deed Restrictions at 1-3, ¶¶ 1.a and 1.b.

• December 21, 2006. A dinner function for Alliance Rental Group LLC for fifteen people was held in guest room 206. The Condominium’s assent was neither sought nor obtained. The marina kitchen provided full food service, including hors d’oeuvres and a $25 per person “dinner menu.” Contempt Trial Ex. 61; Contempt Trial Transcript, Vol. V. at 345-46. This was a violation of the Deed Restrictions at 1-3, ¶¶ 1.a and 1.b.

• February 8, 2007. More than six motor vehicles were parked on Lot 1 for over an hour. Contempt Trial Transcript, Vol. I at 156-57. This was a violation of the Variance and Conditional Use Permit, the Deed Restrictions at 5, ¶ 4.d, and the Declaration at 4-5, ¶ 2.g and 7, ¶ 4.d.

• February 13, 2007. Seven motor vehicles were parked on Lot 1 for at least forty-four minutes. Contempt Trial Transcript, Vol. III at 64-65. This was a violation of the Variance and Conditional Use Permit, the Deed Restrictions at 5, ¶ 4.d, and the Declaration at 4-5, ¶ 2.g and 7, ¶ 4.d.

• April 26, 2007. More than six motor vehicles were parked on Lot 1 for over an hour. Contempt Trial Transcript, Vol. I at 162-63. A marina employee moved the orange cones that were restricting parking in order to allow the additional vehicles to park. Contempt Trial Transcript, Vol. II at 95-106. This was a violation of the Variance and Conditional Use Permit, the Deed Restrictions at 5, ¶ 4.d, and the Declaration at 4-5, ¶ 2.g and 7, ¶ 4.d.

• April 28, 2007. At least eight motor vehicles were parked on Lot 1 for over an hour. Contempt Trial Transcript, Vol. III at 53-59. This was a violation of the Variance and Conditional Use Permit, the Deed Restrictions at 5, ¶ 4.d, and the Declaration at 4-5, ¶ 2.g and 7, ¶ 4.d.

• April 29, 2007. Seven motor vehicles were parked on Lot 1 for over 1.75 hours. Contempt Trial Transcript, Vol. III at 70-71. This was a violation of the Variance and Conditional Use Permit, the Deed Restrictions at 5, ¶ 4.d, and the Declaration at 4-5, ¶ 2.g and 7, ¶ 4.d.

Material Facts Exist Regarding the Amount of the Plaintiff’s Monetary Damages and Which of the Defendants Are Liable for Them, Requiring Trial

The plaintiff does not seek summary judgment on the monetary amount of its damages, leaving such assessment to trial. This is the correct procedure for that issue. The damage assessment will not be a mechanical one (at least not in its entirety), but instead a matter of reasonable inference from disputed facts regarding the impact of the violations on the Condominium and its operations. Also, such damages may in some degree be duplicative of those awarded in connection with the contempt proceedings. At present, I need not and do not decide the issue of what damages, if any, the Condominium can recover for the impacts of the violations on its individual residents (as opposed to damages suffered by the Condominium Association alone) and leave that question for trial as well.

Given this, I need not and do not decide (as a matter of summary judgment) which of the defendants is liable for these monetary damages, how they are liable (individually or jointly and severally), or in what amounts. On the other hand, all of the defendants (as parties and as persons or entities involved with the marina operations) are properly subject, and continue to be subject, to this court’s orders enjoining violations of the restrictions. And, of course, each is subject, and continues to be subject, to monetary damages and other liability in contempt proceedings (determined and assessed as a matter of contempt, not summary judgment) for their violations of the court’s injunctive orders.

Material Facts Exist Regarding Whether the Easement Has Been Overburdened, Requiring Trial

Without question, the Deed Restrictions, the Declaration, and the parking limitation set forth in the Variance and Conditional Use Permit Decision (expressly incorporated into the Deed Restrictions and the Declaration) have been violated. Their terms are specific and explicit and violations are easily discerned. Whether (and to what extent) the Easement contains additional restrictions, whether (and to what extent) those additional restrictions have been violated, and whether (and to what extent) the Condominium has been damaged by those violations in ways not addressed by the damages recovered in connection with the restrictions are not easily discerned on a summary judgment record. I thus reserve those questions for trial as well. Phelps v. MacIntyre, 397 Mass. 459 , 461 (1986).

Ms. Mumford and Mr. Markey Are Subject to the Condominium’s Claims for Injunctive Relief and Material Facts Exist Regarding Their Personal Liability for Damages, Requiring Trial

Ms. Mumford and Mr. Markey have moved to be dismissed from the case on the grounds that the Deed Restrictions and the Declaration specifically absolve them from any personal liability arising from violations of those restrictions. For the following reasons, that motion is DENIED.

The relevant section of the Deed Restrictions states the following:

No officer, director, shareholder, trustee or manager of the Declarant [Note 44] or the Condominium Association, or any owner of a unit in the Condominium, shall have any personal liability pursuant to this Declaration.

Deed Restrictions at 5, ¶ 5. The Declaration is written more narrowly, covering only Modern Continental and the Condominium (i.e., not their successors or assigns), as follows:

No officer, director, shareholder, trustee or manager of Modern Continental or the Condominium Association, or any owner of a unit in the Condominium, shall have any personal liability pursuant to this Declaration.

Declaration at 7, ¶ 5.

Ms. Mumford and Mr. Markey argue that the sections cited above are “non-recourse provisions,” premised on the anticipation “that only injunctive relief would ever be sought” and thus “bargain[ing] away the opportunity to attempt to hold any individuals on either side liable.” Defendants’ Mem. at 29-30. This is incorrect. First, there is nothing in those provisions that waives or restricts injunctive relief against those individuals if injunctive relief is otherwise appropriate. Indeed, the defendants’ argument that the parties agreed to these provisions “likely anticipating that only injunctive relief would ever be sought” concedes this. Second, both the Deed Restrictions and the Declaration specifically contemplated that money damages would be an available remedy and the Declaration at least arguably still contemplates personal liability to successors and assigns. Declaration at 7, ¶ 4.c (“may be addressed by an action seeking monetary damages and/or injunctive relief”); Deed Restrictions at 4, ¶ 4.c (same). Third, they are not “non-recourse provisions” (the phrase “non-recourse” does not appear anywhere in either document) and they certainly are not in the absolute sense the defendants contend. Rather, as in all contracts, they presume “good faith and fair dealing,” i.e., “that neither party shall do anything that will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.” Anthony’s Pier Four, Inc. v. HBC Associates, 411 Mass. 451 , 471-72 (1991) (internal quotations and citations omitted); T.W. Nickerson, Inc. v. Fleet National Bank, 73 Mass. App. Ct. 434 , 447 (2009).

Viewing the evidence in the light most favorable to the Condominium, that implied covenant of good faith and fair dealing has repeatedly been breached at the instigation of Ms. Mumford and Mr. Markey for their personal benefit. By her own admission, Ms. Mumford is “personally involved in the operation of the marina.” Mumford Aff. at 1, ¶ 1. Mr. Markey is the “managing member” of MGM (the marina’s owner of record) and claims “personal knowledge” of its operations. [Note 45] Antonelli Aff. at Ex. 4, Aff. of Garron Markey (Dec. 22, 2005). Both personally have much to profit and much to lose depending on the marina’s cash flow. [Note 46] Both are fully familiar with the restrictions and can read their plain meaning. [Note 47] Both are fully aware of the Condominium’s enforcement efforts. From all this, it is a fair and reasonable inference that all of the violations of those restrictions were done with the knowledge and at the direction of Ms. Mumford and Mr. Markey. [Note 48] It is a fair and reasonable inference that both Ms. Mumford and Mr. Markey directed these violations in bad faith for direct personal gain. It is certainly a fair inference that no reasonable person would have thought that taking such actions, in clear and repeated violation of the restrictions, was in the best interests of the corporation since they have exposed the corporation to extensive litigation. The cited provisions in the Deed Restrictions and the Declaration thus would not insulate Ms. Mumford and Mr. Markey from personal liability. [Note 49] Anthony’s Pier Four, Inc., 411 Mass. at 471-72; T.W. Nickerson, Inc., 73 Mass. App. Ct. at 447; see also G.L. c. 156B, § 67 (corporation allowed to indemnify officers only if they have acted in good faith in the reasonable belief that their actions were in the best interest of the corporation); Gram v. Liberty Mutual Ins. Co., 384 Mass. 659 , 663-64 (1981); Laurendeau v. Kewaunee Scientific Equip. Corp., 17 Mass. App. Ct. 113 , 123 (1983) (personal liability of corporate officers who induce a corporation to breach a contract out of malice).

For these and other reasons, Ms. Mumford and Mr. Markey are clearly subject to the Condominium’s claims for injunctive relief and there are material issues of fact regarding the Condominium’s damage claims against them, which require a trial to resolve. Ms. Mumford’s and Mr. Markey’s motion for summary judgment dismissing the Condominium’s claims against them is thus DENIED. [Note 50]

Conclusion

For the foregoing reasons, the Condominium’s motion for partial summary judgment is ALLOWED to the extent described above and the defendants’ cross-motion for summary judgment is DENIED in its entirety. SO ORDERED.

By the court (Long, J.)

Attest:

Deborah J. Patterson, Recorder

Dated: 28 September 2009