MISC 10-421713

September 8, 2010


Trombly, J.


This case came before the court on May 20, 2010 on Defendants’ Motion to Dismiss, on a motion by Plaintiff, Fenmore Associates, LLC (“FAL” or “Fenmore”) for Partial Summary Judgment as to Counts I and Count II of it’s Complaint, on Fenmore’s Motion for Lis Pendens, on Fenmore’s Motion for a Preliminary Injunction, and on Defendants’ request that they be granted Summary Judgment on all counts. The Motion for Lis Pendens and the Motion for Preliminary Injunction have been resolved by the issuance of an agreed upon order and a certificate pursuant to G. L. c. 183A, § 6D. This order will therefore concern the other motions and requests, namely Plaintiff’s Motion for Partial Summary Judgment, Defendant’s Motion to Dismiss, and Defendant’s request for entry of judgment in its favor on all counts.

In this action, filed February 3, 2010, Plaintiff seeks a declaration that it can convey or lease the parking spaces in the parking lot of the Fenmore Condominium, without restriction, and that certain votes by the Condominium Trustees purporting to prohibit commercial vehicles from parking in the spaces and restricting use of the spaces to unit-owners within the condominium were, and remain, invalid. A brief recitation of the events leading up to this controversy and hearing will be helpful.

This five count complaint filed by FAL seeks declaratory judgment that FAL may separately convey or lease the parking spaces to any person or entity of its choice (Count I), declaratory judgment that actions of the Trust and agent Lundgren purporting to restrict Fenmore’s use of the parking spaces are void (Count II), damages as a result of Defendants’ acts that detrimentally affected parking space sales (Count III), a declaration that FAL acquired the parking lot land by adverse possession (Count IV), and a preliminary and permanent injunction enjoining the Defendants from interfering with FAL’s rights to convey or lease the spaces without restriction (Count V).

The docket sheet on the case discloses the following history:

* * * * * * * * * * * *

After careful review of the facts as set forth in the substantial summary judgment record, this Court finds the following facts are not in dispute:

1) Plaintiff, Fenmore Associates, LLC (“Fenmore”) is a Delaware limited liability company with a principal place of business at 39 Brighton Ave., Boston, MA.

2) Defendants, Russell Brough, Mark Medlinksky, Mary Michaels, Sheila O’Neill and Josh Medeiros (the “Trustees”), are trustees of the Fenmore Condominium Trust (the “Trust”), and are the members of the governing body of the Trust.

3) Defendant, Lundgren Management Group, Inc. (“LMG”) is a Massachusetts Corporation that acts as the management agent for the Trustees and the Trust.

4) The Trust is the organization of unit owners of the Fenmore Condominium (the “Condominium”), which consists of the land and residential buildings located at 1109-1111 Boylston Street and 50-64 Charlesgate East in Boston. There are over 210 residential units contained in the several buildings.

5) The Condominium was established by a Master Deed, dated December 17, 1985, and recorded at the Suffolk County Registry of Deeds in Book 12208, Page 22. [Note 1] The master deed was amended in 1985 by a document recorded at Book 12764, Page 14. A confirmatory amendment to the master deed was recorded in Book 13182, Page 7, and a further amendment was recorded in Book 13182, Page 18.

6) The Master Deed was recorded with the Registry of Deeds on January 15, 1986 along with the Declaration of Trust for the Condominium. None of the plans included with the Master Deed, at the time it was recorded, depicted parking spaces. On February 14, 1986, a more detailed site plan depicting numbered parking spaces was recorded without a Master Deed Amendment.

7) Prior to the creation and recording of the Master Deed, the Declarant, Michael Perry, Trustee of the Fenmore Realty Trust, granted a mortgage to Harold Brown in the amount of $1.4 million, dated September 26, 1985 and recorded on September 30, 1985 at Book 11928, Page 267. Perry granted a second mortgage to Brown in the amount of $9,250,000.00, recorded at Book 11928, Page 276, and also granted a wrap-around mortgage, recorded at Book 11928, Page 286, to Harold Brown and Philip Nexon, as Trustees of the Fenmore Trust. Both the second and the wrap-around mortgage were recorded on September 30, 1986.

8) On December 16, 1996, Brown conveyed his interest in the first, second and wrap-around mortgages to Stephen Blum, as Trustee of Moring Nominee Trust. A Confirmatory Assignment was recorded March 26, 1997 to correct a scrivener’s error in the 1996 assignment.

9) On September 3, 1997, Blum (as assignee) and Brown (as assignor) together executed and recorded an instrument titled “Subordination to Condominium” which purported to subordinate the mortgages to the provisions of G. L. c 183A and the Condominium Master Deed, with the following specific exception for the parking easements:

“Notwithstanding the foregoing, the lien of the Mortgage shall not be subordinate to, but rather shall be superior to, those certain easement and construction easements including but not limited to rights and easements relative to parking spaces reserved by the declarant of the Master Deed in said Master Deed.” (Emphasis added). [Note 2]

10) Perry subsequently defaulted on the mortgage, and Fenmore, through a foreclosure sale, acquired all of Perry’s right, title and interest in the Condominium and the parking spaces as evidenced by a foreclosure deed, dated June 5, 2002 and recorded June 6, 2002 in Book 28687, Page 296. The foreclosure deed purported to convey to Fenmore title to sixty-seven (67) units and thirty-six (36) parking spaces. [Note 3] Defendant Condominium does not agree that the parking space easements were conveyed by this deed.

11) On October 3, 1989, prior to the foreclosure, Perry had signed an instrument transferring all of the parking easements to Mark J. Linksy, Trustee of the Brighton Acquisition Realty Trust (“BAT”). The following year, in 1990, BAT transferred easements for spaces 15 and 18 to Linda Truslow, known now as Linda Hurd, and Christopher Macina, respectively. On May 11, 1994, BAT transferred the remaining parking easements to Allyson Perry, Trustee of the Rebecca Realty Trust and EFY Coporation.

12) On August 12, 1998, the Condominium Trustees, with at least 51% of the unit owners in support, filed an Amendment to the Fenmore Condominium Trust that purported to restrict the class of vehicles allowed to be parked in the lot to non-commercial vehicles only. On March 19, 2010, the Trustees, accompanied by the written consent of more than seventy-five percent (75%) of the unit owners, executed an Amendment to the Master Deed which restricted the conveyance and/or rentals of parking spaces to unit owners only, and prohibited conveyance or rental to non-unit owners.

13) A dispute has arisen between FAL and the Condominium Trust as to the ownership and control of the parking spaces, resulting in the filing of this action. Plaintiff contends the parking easements were conveyed to it in the foreclosure deed. Defendant Condominium disagrees, contending that the parking easements were extinguished by the foreclosure, that the spaces were or became part of the condominium common area, and that they are thus under the control of the condominium trustees.


Summary judgment is granted where there are no issues of material fact and when the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976). The moving party bears the burden of demonstrating affirmatively the absence of a triable issue, and its entitlement to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14 , 16-17 (1989). In viewing the record before it, the court reviews “the evidence in the light most favorable to the nonmoving party.” Donaldson v. Farrakhan, 436 Mass. 94 , 96 (2002).

In weighing the merits of a summary judgment motion, the court must address two questions: (1) whether the factual disputes are genuine, and (2) whether a fact genuinely in dispute is material. Town of Norwood v. Adams-Russell Co., Inc., 401 Mass. 677 , 683 (1988) (citing Anderson v. Liberty, 477 U.S. 242, 247-48 (1986)). “As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248, cited in Carey v. New England Organ Bank, 446 Mass. 270 , 278 (2006); Molly A. v. Comm’r of the Dept. Of Mental Retardation, 69 Mass. App. Ct. 267 , 268 n.5 (2007). In order to determine if a dispute about a material fact is genuine, the court must decide whether “the evidence is such that a reasonable [fact finder] could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248.

With respect to any claim on which the party moving for summary judgment does not have the burden of proof at trial, it may demonstrate the absence of a triable issue either by submitting affirmative evidence that negates an essential element of the opponent’s case, or “by demonstrating that proof of that element is unlikely to be forthcoming at trial.” Flesner v. Technical Comm’ns Corp., 410 Mass. 805 , 809 (1991). 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 (1976). Where appropriate, summary judgment may enter against the moving party. Mass. R. Civ. P. 56(c).

When the court considers the materials accompanying a motion for summary judgment, the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion. Attorney Gen. v. Bailey, 386 Mass. 367 , 371 (1982). The 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. However, the court may only consider evidence which meets the requirements of Mass. R. Civ. P. 56(e). That evidence must come from “pleadings, [Note 4] depositions, answers to interrogatories, and responses to requests for admissions under rule 36, together with ... affidavits, if any.” Mass. R. Civ. P. 56(c).

In the instant matter, there are no genuine issues of material fact within the meaning of Mass. R. Civ. P. 56(c) and, therefore, this case is proper for summary judgment.


It is undisputed that a declarant may reserve an “interest in a common area, to which the master deed is expressly subject.” G.L.c. 183A §5. Fenmore claims to be Perry’s successor in interest with regard to the parking spaces, and also owns five residential units in the condominium. Paragraph 5 of the Master Deed defines the condominium’s “common areas” or “common elements” to exclude certain parking areas. Paragraph 5(b) states, for example, that certain units “shall have as appurtenant to them the exclusive right and easement to use the parking space or spaces, if any as shown on the site plan”. By definition, an “exclusive use” area cannot be a part of the common area. Paragraph 5(e) is more specific and further excludes certain parking areas from the common area.

Paragraph 6(a) is even more specific, stating that

“Notwithstanding any other provision of the Master Deed, Declarant, for himself and his successors and assigns, reserves easements for the exclusive use of all of the parking spaces, if any, located on the land as shown on the Condominium Site Plan hereinafter referred to, and reserves, with respect to each of said parking spaces, the right to convey such exclusive easement to Unit Owners, (either in Unit Deeds from the Declarant or by separate instrument(s) or to the Trustees of Fenmore Condominium Trust (hereinafter sometimes referred to as the “trustees”), or to non Unit Owners, and the Declarant, for himself, his successors and assigns, reserves until so conveyed, to the extent permitted by law, the right to rent all or any of same to any person, including without limitation, a person who is neither an occupant nor an owner of a unit in this Condominium, on such terms and conditions as Declarant or his successors or assigns shall deem appropriate. All sums paid therefore, (with respect both to rentals and to sales), shall belong to Declarant.” (Emphasis added.)

Fenmore claims the right to convey exclusive easements in the parking spaces to just about anyone - unit owners or strangers - and that it is even empowered to convey “rights of first refusal” therein. The present litigation was spawned when Fenmore notified the Condominium Trustees of its intention to convey or lease the parking spaces. It was at this time that the Trustees convened a meeting and attempted to amend the Master Deed to eliminate or restrict Fenmore’s right to separately convey the spaces by restricting use of the spaces to non-commercial vehicles and to provide that they could be conveyed only to unit-owners in the Condominium.

Defendants, notwithstanding the “reservation” mentioned previously, do not agree that the parking spaces are not part of the common area of the condominium. They also contend that the Parking Easements in question were never validly created because no parking spaces existed at the time of creation of the Condominium. They rely on the following language in the Master Deed in support of their argument:

“Notwithstanding any other provisions of this Master Deed, Declarant, for himself and his successors and assigns, reserves easements for the exclusive use of all of the parking spaces, if any, located on the land as shown on the Condominium Site Plan hereinafter referred to...”(emphasis added).

Defendants assert that because the fifteen plans that accompanied the Master Deed at the time of filing did not depict individual parking spaces, the easement grant did not identify the dominant and servient estates with reasonable particularity and sufficient detail, and therefore, relying on Mchale v. Treworgy, 325 Mass. 381 (1950), they contend that the grant of easement failed. Defendants further assert that the Site Plan showing the parking spaces, which was recorded without a Master Deed Amendment approximately one month after the Master Deed itself was recorded, could not create any easements without that Amendment. As Defendants put it, the plans were recorded “in a vacuum”.

This court is unconvinced that the failure to attach a plan depicting the parking spaces in question at the time of filing, and the subsequent filing of a more complete plan 20 days later, warrants a determination that the easements were never created. The grant of easements was sufficiently precise -- it granted easements to all parking spaces on the land to the Declarant or his successors and assigns. A “deed is to be construed to give effect to the intent of the parties as manifested by the words used, interpreted in light of the material circumstances and pertinent facts known to them at the time it was executed.” Bessey v. Ollman, 242 Mass. 89 , 91 (1922). It is also very clear from the language of the Master Deed that the Declarant, Perry, intended to create and reserve easements in gross for himself over the parking spaces on the Condominium land. The Declarant’s intent should be respected in spite of his failure to timely record a Site Plan. The Site Plan does not create the parking spaces. It merely depicts the parking spaces existing on the land. Recording the more complete Site Plan twenty (20) days later appears more as a remedy to a clerical error than a manifestation of an intent to modify the Master Deed.

Furthermore, the Trustees have filed verified complaints with the Suffolk County Superior Court in 1998 and 1999, and an Amended version of the 1999 Complaint in 2001. In each of those complaints, the Trustees in some fashion acknowledged the validity of the parking easements. The 1998 verified complaint states that “the Plaintiffs (Trustees) have carefully measured the parking lot, painted lines on the parking lot in conformity with the (Site) Plan and clearly identified the spaces on which the Defendants own easement rights.” (Emphasis added.) . The 1999 Verified Complaint stated, in part, that

“Section 6(a) of the Master Deed reserves to the Declarant, and the successors and assigns thereof, an exclusive easement, in perpetuity, for all of the parking spaces designated with the prefix “P” on the Condominium Site Plan which was attached to the Master Deed. There were 37 parking spaces identified on the Plan,”

The 2001 Amended Verified Complaint retains the language from the 1999 Verified Complaint as quoted above and further states that “The Defendants are the owners and holders of the parking space easements of the Fenmore Condominium and have not contributed their pro rata share of expenses for the maintenance, repair and upkeep of the parking lot”. Clearly, the Trustees knew about Fenmore’s claim to the parking spaces. It is notable that when the Trustees were seeking parking space owners’ “pro rata share(s)” of the expenses for maintenance, repair and upkeep of the parking lot, they accepted and, indeed, relied on the validity of the creation of the easements, though they now assert the opposite.


G. L. c. 183 A (1) provides a definition of the Common Areas except as otherwise provided or stipulated in the master deed. “In G.L. c. 183A, § 10( b )(1), the Legislature has proclaimed that the Association, as the owner of the possessory interest in the condominium land, has the power to manage and control that land. But nothing prevents the simultaneous existence of a non-ownership interest in the same land.” Commercial Wharf East Condominium Ass'n v. Waterfront Parking Corp, 407 Mass. 123 (1990). In the present case, the Declarant, in the Master Deed, clearly reserved to himself and his successors in interest, an exclusive easement with respect to certain outdoor parking spaces. These rights included the right to rent or convey to owners and non-owners alike, on such terms as “Declarant or his successors or assigns shall deem appropriate.” In Commercial Wharf East Condominium Ass’n v. Waterfront Parking Corp., the Supreme Judicial Court held that such a reserved “interest in a common area, to which the master deed is expressly subject, is not part of the common area” even though the condominium retains the fee interest. Id. at 130. It follows, therefore, that the defendant condominium trustees may not interfere with or seek to limit or restrict the rights of Fenmore or its assignees in and to the exclusive easement.

It does not even matter whether the reservation is contained in the master deed itself, or if it is contained in another instrument. While the owners association or trust may have some powers in the reserved area - for example those enumerated in G. L. c. 183A, § 10(b)(1) - the trust “cannot utilize that authority in such a way as to interfere with the rights retained by the developer.” Id. at 129. Even assuming, arguendo, that the parking spaces are within the common area and are subject to a certain measure of control by the Condominium’s governing body, it does not follow that Plaintiff’s right to convey or lease parking spaces is no longer existent. As noted earlier, any attempt to regulate what goes on in the parking area cannot interfere with the Declarant’s reserved rights therein.


The Trustees contend that the parking easements, even if they were validly created and reserved by the Master Deed, were nevertheless extinguished when the mortgage was foreclosed by Blum and the land sold to Fenmore. For this argument, they assert that the mortgage was not subordinated to the condominium, and that since Massachusetts is a “title theory” state, the owners of land encumbered by a mortgage has no legal right to “even grant easements over the encumbered land unless the mortgagee joins in the grant.” In the present circumstance, they claim that the foreclosure extinguished any easement which might have existed because the owner of the mortgaged property (Perry) did not join in the agreement whereby Harold Brown and Blum subordinated the mortgage to the easements. In the case at bar, citing Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 100 , 106 (1933), Defendants argue that “[a]fter the giving of a mortgage deed the mortgagor cannot create any easement in the land conveyed and thus diminish the estate granted to the mortgagee...”. Generally, they aver, “an easement is lost by the foreclosure of a mortgage or trust deed on the servient tenement, where such mortgage or trust deed was executed prior to the creation of the easement.” AmJur Easements § 104 and cases cited.

This Court does not agree that the parking easements were extinguished by the foreclosure. As recently reiterated in Faneuil Investors Group, Limited Partnership v. Board of Selectmen of Dennis, 75 Mass. App. Ct. 260 , 264-265 (2009), “under our title theory of mortgages, ‘A mortgage is a conveyance of the title or of some interest therein defeasible upon the payment of money or the performance of some other condition.” Had the mortgagor performed in full under the mortgage, the legal and equitable title would have merged in Perry. That did not occur in this instance. Instead, Perry defaulted and the mortgage was foreclosed. The legal notice given to Perry and published for three successive weeks in the Boston Herald gave notice that the property was to be sold at auction “together with the exclusive right and easement to use ......parking spaces” , and that the condominium units and parking spaces being sold “are a part of a condominium known as Fenmore Condominium...created by Master Deed dated January 15, 1986...”.

The foreclosure sale did not extinguish the easement. Both parties to the mortgage knew that the spaces were now owned by Fenmore, and the Trustees almost immediately brought suit against Fenmore to collect maintenance fees, thereby evidencing that they knew too.


As an alternative legal theory, Plaintiff claims title to the parking spaces under the doctrine of adverse possession. Having already ruled that Plaintiffs are record owners of the parking easements at issue, I need not rule on its adverse possession claim except to point out that possession of a parcel of land on which one has an easement cannot be adverse; they have a right to be there so any entry thereon is not adverse.


Plaintiff, in Count III, seeks the award of damages against the trustees and The Lundgren Management Group, Inc. (“Lundgren”) based on its actions which, plaintiff claims, have interfered with its efforts to sell or lease parking spaces. Fenmore avers that the actions of Lundgren have made it almost impossible to complete sales or rentals because potential customers, once they learn of the present controversy, either defer or decline to complete the transaction.

Defendants correctly point out that this is a contractual issue also involving a possible tort case. For that reason, they seek to have the count dismissed. This Court agrees. Under Mass. R. Civ. P. Rule 12(b)(1) a complaint may be dismissed for lack of subject matter jurisdiction. The parties may not waive lack of jurisdiction or confer jurisdiction where it does not exist. In this instance, tort claims are clearly not listed in G. L. c. 185, § 1 as matters lying within the jurisdiction of the Land Court. Accordingly, Plaintiff’s claim for damages in Count III of its complaint is hereby dismissed.


For all the above reasons, this Court finds and rules that Plaintiff’s Cross- Motion for Partial Summary Judgment is ALLOWED and that Defendants’ Motion to Dismiss is DENIED in part. Defendants’ request for entry of judgment in its favor on all counts is also DENIED in part. The Parking Easement was validly created and reserved, survived the mortgage foreclosure, and is still the property of the Plaintiff and those, including those “interested parties” mentioned above, who have purchased or leased parking spaces. Defendant Trustees can take no actions which will interfere with those rights.

Judgement to enter accordingly.

Charles W. Trombly, Jr.


Dated: September 8, 2010


[Note 1] Unless otherwise indicated, all references to recorded deeds, plans, or other instruments refer to documents recorded at this Registry of Deeds.

[Note 2] It is not unusual to execute and record a subordination agreement when mortgaged property is placed into condominium status pursuant to G. L. c. 183A. This protects against the possibility that a later foreclosure of the mortgage would “wipe out” or extinguish the condominium.

[Note 3] The foreclosure deed and accompanying affidavit disclose that the highest bidder at the sale “failed to perform” and that Brown, as the second highest bidder, assigned his bid to Fenmore Associates, LLC, the eventual purchaser.

[Note 4] A motion for summary judgment can rest in whole or in part on facts set forth in the moving party's pleadings if, but only if, they are conceded in the opposing party's pleadings. Cmty. Nat'l Bank, 369 Mass. At 557 n.6. It may also rest on the allegations contained in the opposing party's pleadings. G. L. c. 231, § 87 ("in any civil action pleadings shall not be evidence on the trial, but the allegations therein shall bind the party making them").