This action was commenced on December 6, 2006 by Plaintiffs Claire Ambrosini, Vincent Ambrosini, Jose Cotton, Marine Cotton, Laura Cox, George Depradine, Frank Mercugliano, Diane Smith, and Russell Smith (collectively, Plaintiffs), all of whom are Affordable Unit Owners residing in the Clarendon/Warren Condominium (the Condominium) located at 78 Warren Avenue in Boston, Massachusetts. The action was precipitated by the imposition on the unit owners of significant special assessments for renovations to the roofs and roof decks of the two buildings which comprise the Condominium, the use of which only the owners of the market-rate units enjoy pursuant to deed restrictions. Plaintiffs contend that the assessments are disproportionately, if not solely, for the benefit of the market-rate units, and that relative square footage is not a proper measure of calculating each units undivided percentage interest in the common areas when the resale price of certain units is restricted by the terms of their deeds.
Plaintiffs filed an Amended Complaint on January 17, 2007 seeking a declaratory judgment pursuant to G. L. c. 231A that the Condominium developer erred in establishing the respective undivided percentage interests in the common area and facilities for each unit, and further praying that the Court enter an order directing the Trustees to reform the Condominium Master Deed such that the undivided percentage interests in the common areas and facilities for each unit reflects the fair value of all units as of the date of the Master Deed rather than reflecting the proportion which the square footage of each unit bears to the whole, as is currently the case. Named as Defendants were the Trustees of the Condominium Trust, all owners of unrestricted units, and mortgagees and lien holders (collectively, the Defendants).
The case came to be heard on Motions to Dismiss filed by several of the Defendants contending that the action was time barred, that the Court lacked jurisdiction because Plaintiffs were seeking money damages, that the Plaintiffs lacked standing because they had failed to pay their fees under protest, and that they had failed to name and serve former owners who, in the opinion of the Defendants, were indispensable parties. On July 3, 2008, the Court entered an Order Denying Defendants Motion to Dismiss. Defendants Motion for Reconsideration was denied in an Order dated September 3, 2008.
On October 29, 2009, Plaintiffs moved for summary judgment, along with supporting affidavits and memoranda. Oppositions to Plaintiffs motion and cross-motions were filed by several of the Defendants. The motions and cross-motions were fully briefed and argued before the Court and taken under advisement on February 9, 2010. Supplemental memoranda were filed by the parties following the Decision of the Supreme Judicial Court on May of this year in the case of Scully, Trustee v. Tillery, Trustee, 456 Mass. 758 (2010). A Decision has entered today. In accordance with that Decision, it is
ORDERED, ADJUDGED and DECLARED that the Master Deed of the Condominium is valid and enforceable in accordance with its terms and those set forth in the Covenant. It is further
ORDERED, ADJUDGED and DECLARED that the Declaration of Trust is valid and enforceable in accordance with its terms. It is further
ORDERED that Plaintiffs Motion for Summary Judgment is DENIED and Defendants Motions for Summary Judgment are ALLOWED.
By the Court (Trombly, J.)
Attest:
Deborah J. Patterson
Recorder
Dated: October 7, 2010
CLAIRE AMBROSINI, VINCENT AMBROSINI, JOSE COTTON, MARINE COTTON, LAURA MAE COX, GEORGE B. DEPRADINE, FRANK L. MERCULGLIANO, DIANE SMITH and RUSSELL SMITH v. MAUREEN CAWLEY, CYNTHIA LAIDLAW, THOMAS LOUCAS, MELISSA SCHER, and ROGER E. TACKEFF, as they are Trustees of the CLARENDON-WARREN CONDOMINIUM TRUST, KEVIN AHERN, BCT REALTY LLC, MICHAEL BEAN, CARLOS BHOLA, VICKI J. BROWN, JOHN CUNNEY, JR., BEATRICE FISHER, FRANKLIN GALINA, JONATHAN HIRSCH, SCOTT JONES, MICHAEL L. KAPLAN, CAROLINE C. KASPARIAN, JOHN KILROY, CYNTHIA LAIDLAW, THOMAS LAIDLAW, MARK LERNER, JEFF LEUPOLD, WILLIAM LIM, Trustee of the WILLIAM LIM TRUST, LORI LOTURCO, CAROLYN LOUCAS, THOMAS LOUCAS, JEFFREY J. MYLER, SCOTT POKRYWA, JON PRUNIER, SUSAN REIGEL, MELISSA SCHER, SHAWN T. TUMPNEY, SUSAN VAN DAM and STANLEY ZHOU, Unit Owners; and ABND AMRO MORTGAGE GROUP, INC., BANK OF AMERICA, NA, BOSTON FEDERAL SAVINGS BANK, CHEVY CHASE BANK, CITIZENS BANK OF MASSACHUSETTS, EMIGRANT MORTGAGE CO., INC., FIRST TRADE UNION BANK, JP MORGAN CHASE & CO., MASSACHUSETTS HOUSING FINANCE AGENCY, MELLON TRUST OF NEW ENGLAND, OLD KENT MORTGAGE CO., SHERWOOD MORTGAGE GROUP, INC., SUMMIT MORTGAGE, LLC, STATE STREET BANK AND TRUST CO., TD BANKNORTH, INC., and WASHINGTON MUTUAL BANK, FA, Mortgagees and Lien Holders