MISC 06-335165

October 13, 2011


Long, J.



Plaintiffs, the trustees of Maushop Village Trust (the “Village Trustees”) and a majority of the trustees of the Maushop Village Condominium Trust 3c (a sub-village of Maushop Village) (the “3c Trustees”), brought this action to permanently enjoin defendants John and Lydia Berksza (the “Berkszas”) from reconstructing their condominium unit in excess of the boundaries of their original, now-demolished cottage condominium unit at Maushop Village in Mashpee. The Berkszas physically demolished their original unit, a one-story, stand-alone cottage of approximately 579.5 square feet set on concrete blocks, and had plans to replace it with a new two-story structure with a full basement.

The Berkszas received approval for this reconstruction from Maushop Village’s Architectural Review Committee (the “ARC”) and a building permit for the new unit from the Town of Mashpee. However, the Berkszas have not received approval from the Village Trustees or 3c Trustees. The plaintiffs contend that approval from the Village Trustees is required for any rebuilding or expansion of a condominium unit that will encroach into the Common Elements of the condominium, in addition to the ARC’s approval and a building permit from the Town of Mashpee. The Berkszas claim that their proposed rebuilding will not affect the condominium’s Common Elements, and moreover, they claim that the ARC approval supersedes the Village Trustees’ approval authority.

The case was tried before me, jury-waived. Based on the testimony and exhibits admitted into evidence at trial, my assessment of the credibility, weight, and inferences to be drawn from that evidence, and as more fully set forth below, I find and rule that the Berkszas’ proposed rebuilding will encroach into the Common Elements of the condominium. As such, the Village Trustees have final approval authority. Having failed to obtain the Village Trustees’ approval, the Berkszas are permanently enjoined from construction or reconstruction of their unit to anything other than its former structural design and dimensions without approval from the Village Trustees.


Maushop Village and Applicable Condominium Documents

Maushop Village is a group of five physically contiguous residential condominiums in Mashpee, all of which are on registered land. [Note 1] Those five are Maushop Village Condominiums 3a, 3b, 3c, 3d, and 3e, comprising a total of 183 units situated on approximately 15.31 acres of land. [Note 2] The complaint describes “the document structure governing Maushop Village” as “complex,” and this is an understatement. [Note 3] Each of the five condominiums has its own Master Deed and Declaration of Trust. [Note 4] Each condominium has its own board of condominium trustees. Each condominium is benefited and burdened by the Maushop Village Declaration, which covers roads, open space, landscaping, maintenance, and requires prior written approval from the Architectural Review Committee for any construction, excavation, or landscaping. [Note 5] Each condominium is benefited and burdened by a Grant of Easements from the developer, New Seabury Corporation, for such things as utilities, roads, beach use, sewage disposal, parking, and pedestrian access. [Note 6] Each condominium is benefited by and subject to the overall Maushop Village Declaration of Trust, which established a board of trustees (the Village Trustees, each of whom must also be a condominium trustee) with responsibility for the operation, care, upkeep, and maintenance of the common elements of all five condominiums, and which grants the Village Trustees all powers and duties associated with that responsibility. [Note 7]

Maushop Village Condominium Structure and Maintenance of Common Elements

The parties agree that the Berkszas’ renovation is a “structure” or “alteration” within the meaning of the Village documents and that its proposed basement will require an “excavation.” As such, the parties do not dispute that the proposal requires the approval of the Architectural Review Committee (“ARC”), as described in the Maushop Village Declaration. [Note 8] The Maushop Village Declaration outlines the “Procedure for Committee Approvals,” and notes that “[i]f the Committee fails either to approve or disapprove a request for approval properly submitted to it pursuant to this Paragraph 4.7 within 6 months after such request has been submitted to it, it shall be conclusively presumed that the Committee has approved such request.” [Note 9] As described above, the Berkszas received ARC approval, as well as a building permit from the Town of Mashpee.

Beyond the Maushop Village Declaration, a separate document, the Maushop Village Declaration of Trust, established the Maushop Village Trust (the “Village Trust”), with five Village Trustees. The “Beneficiaries” of the Village Trust are defined as the “Condominium Trustees of each of the five Maushop Village Condominiums.” The five Village Trustees, each of whom is also a trustee of a Maushop Village Condominium (a “condominium trustee”), retain the “powers and duties” for the “operation, care, upkeep and maintenance of the Common Elements of the five Maushop Village Condominiums.” [Note 10] The Village Trustees are responsible for “[a]ll maintenance of and repairs and replacements to the Common Elements” and “[c]ompliance with governmental laws, regulations, rules, requirements and the like relating to the Common Elements of the five Maushop Village Condominiums.” [Note 11], [Note 12] Finally, in carrying out each of its delineated responsibilities, the Village Trustees have the power and duty for “doing anything and everything else necessary and proper for the sound management and operation of the Common Elements.” [Note 13]

The Village Trustees are to receive a copy of all requests for construction, alteration, or excavation submitted to the ARC. If the ARC fails to act on the request within the six month review period, the Village Trustees must subject the “work or item in question” to an approval process “in the same manner and on the same terms and conditions as provided for in the Maushop Declaration except that the said six month ‘review period’ shall be three months.” [Note 14]

The condominium trustees of each of the five condominiums, 3a, 3b, 3c, 3d, and 3e, represent the final sub-layer of the Maushop Village structure. The 3c Condominium Trustees (the “3c Trustees” or “Condominium Trustees”) retain the “powers and duties” to “monitor the performance by the Village Trustees” of their responsibilities for “maintenance of the Common Elements, compliance with laws applicable thereto, and obtaining and maintaining insurance on the Common Elements and Units.” [Note 15] Moreover, “[i]f the Village Trustees fail to perform any of their duties . . . within a reasonable time after written notice by the Condominium Trustees, then the Condominium Trustees shall have the power and duty to perform such duty or duties.” [Note 16] The 3c Trustees maintain the power and duty for “[m]anaging and otherwise dealing with the Common Elements provided, however, that such power shall be exercised in a manner consistent with the powers of the Village Trustees . . . .” [Note 17]

The Maushop Village Declaration defines “Common Area” as “the Land, exclusive of the [condominium] units.” [Note 18] The Master Deed of the Maushop Village Condominium 3c (the “Master Deed”) labels the “common areas and facilities of the Condominium” as the “Common Elements,” and defines them as all space that is not part of a unit. [Note 19] Here, “air space” is specifically referenced as a Common Element. [Note 20] The Master Deed refers to the units as being within the buildings “shown on the Condominium Plan.” [Note 21] It goes on to say that each unit’s dimensions are intended to be co-extensive with those of the buildings, exclusive of the buildings’ foundations; thus, the unit is defined as extending downward to the plane of the lower surface of the flooring and upward to the plane of the upper surface of the roofing. [Note 22] Finally, as to the exterior building walls, doors, and windows, the Master Deed defines the unit boundary as the exterior surfaces of each. [Note 23] To remove any doubt, the Master Deed concludes by noting that the units are shown on the floor plans filed as part of the condominium documents, and Exhibit A to the Master Deed specifically states that the Berkszas’ Unit 749 (the “Unit”) comprises one floor, approximately 579.5 square feet, a kitchen, a living room, two bedrooms, a bathroom, and a sun porch. [Note 24] Exhibit A also notes that Unit 749’s patio is an “immediate common element[s] accessible to Unit.” The plan on file at the Registry for Unit 749 even gives the precise footprint dimensions of that Unit and notes that it is a one-story building.

Exhibit B of the Master Deed sets forth the percentage undivided interest of each unit in the Common Elements. [Note 25] The Village Trustees retain the power and duty to collect “Village Charges,” for the performance of their powers and duties, including the operation, care, upkeep and maintenance of the Common Elements of the five Maushop Village Condominiums. [Note 26] Likewise, the 3c Trustees retain the power and duty to collect “Common Charges” for the performance of their powers and duties, including assistance to the Village Trustees in maintenance of the Common Elements. [Note 27] These charges are assessed to the unit owners according to their respective undivided interests in the Common Elements. [Note 28]

The Berksza Unit and Proposed Reconstruction

The Berkszas own Unit 749 (the “Unit”) in Maushop Village Condominium 3c, which they have physically demolished. [Note 29] Prior to its destruction, Unit 749 was a one-story, stand-alone cottage of approximately 579.5 square feet, including two bedrooms, which sat on concrete blocks. The Berkszas propose to replace the cottage with a two-story, two-bedroom structure with a full basement and approximately three times the original square footage in living area. [Note 30]

On October 5, 2004, the Berkszas presented the preliminary sketches of their tear-down and rebuild proposal to the ARC, and the ARC approved these sketches. [Note 31] The Berkszas first reviewed those same plans with the Village Trustees on October 16, 2004, more than two years prior to the demolition in December 2006. [Note 32] As part of this discussion, the Village Trustees requested from Mr. Berksza the dimensions of the proposed building, including the proposed new height as compared to the height of the original building, a detail omitted from the new Unit sketch plan. [Note 33] On February 4, 2005, having yet to receive the requested dimension information, the Village Trustees wrote to Mr. Berksza requesting “a definitive answer to the question regarding the height of your cottage as it stands and what the new height will be.” [Note 34] Approximately ten days later, the ARC informed the Trustees in writing that the ARC had approved preliminary sketches presented in October 2004 and invited questions from the Trustees. [Note 35] On that same day, shortly after the Village Trustees’ February meeting, the Trustees sent Mr. Berksza their disapproval of increasing the Unit height. [Note 36] In or around March 2005, following a site visit with the Berkszas, the Trustees learned the Berkszas intended their new home to measure 25 feet in height, whereas their current cottage measured 13 feet. [Note 37] During the remainder of 2005 and most of 2006, the Berkszas did not resubmit their proposal to the Village Trustees with the requested dimensions. [Note 38]

The Trustees sent a cease-and-desist demand to the Berkszas on October 2, 2006, allegedly based on information of the Berkszas’ plan to demolish their home and replace it with a larger unit. [Note 39] Nonetheless, in December 2006, the Berkszas raised their original cottage, including the concrete blocks, and installed a new foundation. Although the Berkszas received approval for their new Unit design from the Maushop Village Architectural Review Committee and a building permit from the Town of Mashpee, to date they have received permission from neither the Village Trustees nor the 3c Trustees. [Note 40] The Village Trustees oppose the new structure on a variety of grounds, including encroachment into the Common Elements and the additional strain this increased Unit capacity will place on the Village septic system and parking facilities.


The Village Trustees and 3c Trustees assert that the Berkszas have no lawful right to construct a Unit larger than the original Unit, which would effectively encroach into the Common Elements. More specifically, the plaintiffs assert that the Berkszas failed to conform to the requirements of the Condominium Act, M.G.L.A. c. 183A, failed to conform to the requirements of the Master Deed and other condominium documents, and have already destroyed a portion of the Common Elements by demolishing their original concrete block foundation. As noted above, the Berkszas claim that their demolition and proposal does not affect the Common Elements, and that in any case the ARC approval was both necessary and sufficient for lawfully completing the proposed reconstruction. I address each of the Berkszas’ contentions in turn.

Condominium Ownership and Encroachment onto the Common Elements

Condominiums are a communal form of organization, entitling the owner to both “exclusive ownership and possession of his unit, G.L. c. 183A, § 4, and . . . an undivided interest [as tenant in common together with all the other unit owners] in the common areas . . . .” Noble v. Murphy, 34 Mass. App. Ct. 452 , 455-56 (1993) (citing Kaplan v. Boudreaux, 410 Mass. 435 , 438 (1991)). “A person’s ownership of a condominium unit includes an exclusive fee interest in the individual unit, but is subject to limitations set forth in the master deed and the condominium by-laws. G.L. c. 183A, § 4.” Lallo v. Szabo, 75 Mass. App. Ct. 1 , 4 (2009). Accordingly, “condominium ownership is generally characterized by the relinquishment of some ‘personal choice’ in exchange for the benefits that may be derived from associating with other property owners.” Id.

The relinquishment of personal choice is perhaps most pronounced in the context of a condominium’s common areas. General Laws c. 183A, § 1 defines “common areas and facilities” as follows:

“Common areas and facilities” shall, except as otherwise provided or stipulated in the master deed, mean and include:--

(1) The foundations, columns, girders, beams, supports, party walls, common walls, main walls, roofs, halls, corridors, lobbies, public stairs and stairways, fire escapes and entrances and exits of the building;

(2) Installations of central services such as power, light, gas, hot and cold water, heating, refrigeration, air conditioning and incinerating;

(3) The elevators, tanks, pumps, motors, fans, compressors, ducts, and in general all apparatus and installations existing for common use;

(4) The land on which the building is located, or the lessee's interest in any lease of such land which is submitted to the provisions of this chapter;

(5) The basements, yards, lawns, gardens, recreational facilities, parking areas and storage spaces;

(6) The premises for the lodging of custodian or persons in charge of the condominium;

(7) Such community and commercial facilities as may be provided for in the master deed as being owned in common.

(8) All other parts of the condominium necessary or convenient to its existence, maintenance and safety, or normally in common use.

G.L. c. 183A § 1. As discussed above, the Maushop Village condominium documents provide that the units are confined within the roof surface, interior floor surface, and interior walls, while the common areas (the “Common Elements”) comprise all areas exclusive of the units. [Note 41] Moreover, the Master Deed references “air space” as a Common Element. [Note 42] Nothing in the condominium documents or G.L. c. 183A supports the interpretation that a unit includes the foundation below, be it concrete blocks or a basement foundation, or the air space above. [Note 43] Rather, G.L c. 183A § 1(1) specifically provides that common areas include the “foundations,” “supports,” and “roofs . . . of the building.”

Any work that encroaches onto the Common Elements, either horizontally or vertically, or both, not only reduces the common open space and architectural harmony, but may also affect the condominium septic system, the intensity of road and beach use, and potentially the allocation of beneficial interest in the condominium. [Note 44] Although the Berkszas propose to replace their old cottage with another two-bedroom building, it is reasonable to conclude that the near tripling of floor space capacity will encourage higher levels of guest occupancy at one time, which may place a heavier burden on the septic system, roads and parking areas, beach, and other common amenities. [Note 45] In any event, regardless of its effect, the demolition of the original foundation was an unlawful destruction of common area, and the expansion in footprint, depth, and height of Unit 749 would be an encroachment into the Common Elements.

Authority to Approve and Deny New Construction

The Massachusetts condominium statute, and the condominium documents subject to G.L. c. 183A, assign the trustees responsibility “for the enforcement of rights and obligations in the common area.” Strauss v. Oyster River Condominium Trust, 417 Mass. 442 , 447 (1994). Here, the Village Trustees, with support from the 3c Trustees, retain the explicit “powers and duties” to maintain the common elements and do “anything and everything [else] necessary and proper for the sound management and operation of the Common Elements.” [Note 46] The Architectural Review Committee, on the other hand, plays an advisory role in the maintenance of architectural harmony within Maushop Village. Although the Berkszas take issue with the absence of an express statement in the condominium documents of the Village Trustees’ superseding authority over the ARC’s plan approvals, the overall scope and extent of the powers and duties of the Village Trustees as set forth in the condominium documents makes such a detail unnecessary. The Berkszas have also downplayed the role of the Village Trustees and confused the line of authority by asserting that the ARC’s failure to act is a “condition precedent” to the Village Trustees’ authority to act. Neither the ARC’s action nor failure to act is a condition precedent for the Village Trustees to exercise their authority. While the condominium documents provide that a timely considered proposal is reviewed and either approved or denied by the ARC, the ARC’s substantial delay on a proposal allows the Trustees to proceed with decision making without ARC participation. For these reasons, inasmuch as they propose to rebuild beyond the confines of their original cottage, the Berkszas may not substitute the ARC’s approval of their reconstruction design for that of the Village Trustees.

Assuming for sake of argument that the Village Trustees have the ultimate authority to approve or disapprove their reconstruction proposal, the Berkszas next contend that the Village Trustees “failed to act” on their proposal in a timely fashion and thus effectively granted “tacit approval” for the new building plans. However, as the history of the reconstruction proposal reveals, beginning in February 2005, if not before, the Trustees communicated their disapproval of increasing the Unit’s height. During their March 2005 meeting, and during a previous site visit with Mr. Berksza, the Village Trustees again discussed the Berkszas’ proposal. [Note 47] In November 2006, in response to the Berkszas’ submission of elevation plans, the Village Trustees maintained their position that they retained final approval authority over the proposal. [Note 48] The Village Trustees also reiterated their concern over the intended Unit height, and on December 2, 2006 they delivered the cease-and-desist letter. These facts do not support the conclusion that the Village Trustees ever granted tacit approval for the reconstruction plans.

Finally, the Berkszas contend that, even if the Village Trustees retained ultimate approval authority and acted in timely fashion, their denial of the Berkszas’ proposal nonetheless represents selective enforcement and should be overridden for that reason. I disagree. The Berkszas cite previous reconstructions, including two vertical expansions in particular, as evidence of selective enforcement in the present case. In the first case, it appears the Village Trustees were preoccupied with lateral encroachments beyond the footprint of the unit and did not protest the addition of at least one-half to one full story either during or after reconstruction. [Note 49] This looks to have been an oversight or, at best, a one-time exercise of discretion, not a binding determination for all time in all circumstances. In the second case, the Village Trustees approved the addition of an eight inch block foundation to correct drainage and structural issues with the unit, accompanied by a grant of limited common area for the increase in overall height as well as the addition of a subterranean foundation under the sun porch to connect to the existing foundation underneath the main building area. [Note 50] This is a far different situation than the one at bar, which does not involve any health, safety, drainage, or structural violations. [Note 51] Moreover, the Village Trustees have denied at least two other previous proposals for vertical expansion, and in those cases communicated their view that “any significant vertical expansion of a cottage or condo structure in Maushop Village is inherently an encroachment upon the scale and character of the Village, as well as a violation of the understandings and expectations of all the owners . . . .” [Note 52]

In any event, I decline to hold that condominium trustees are forever bound by all previous outcomes in proposals impacting common areas. Not only would such a rule threaten the value of condominium ownership and the duties of the organization of unit owners, but it would also implicate the mandates of G.L. c. 183A. [Note 53] The two-year history of the Berkszas’ proposal brought to the foreground the Village Trustees’ concern over height extensions as well as other effects on common areas. The Berkszas understood the Village Trustees were concerned about this aspect from the time the Trustees first reviewed the preliminary sketches. And prior to the demolition, the Village Trustees gave their final clear signal of disapproval. The Berkszas’ cannot credibly claim any sort of justifiable detrimental reliance. Rather, they proceeded at their own risk.


Injunctive relief for the plaintiffs, the Village Trustees and 3c Trustees, should be denied only where the encroachment is innocent, the cost of removal is greatly disproportionate to injury, and the plaintiff’s rights can be protected without an injunction. Xifaras v. Andrade, 59 Mass. App. Ct. 789 , 794-95 (2003). Such is not the case here. The Berkszas have already destroyed a Common Element by demolishing the concrete block foundation, and any construction beyond the original bounds of Unit 749 would be an encroachment into the Common Elements.

The plaintiffs concede that rebuilding the cottage according to Massachusetts Building Code will require a more proper foundation. As such, the plaintiffs agree that a grant of limited common area is an appropriate method for proceeding with the reconstruction of the Berkszas unit, and are willing to do so.


For the reasons set forth above, the Berkszas are hereby enjoined from rebuilding their Unit beyond the boundaries of their original cottage. To the extent that rebuilding requires a more appropriate foundation to satisfy Massachusetts Building Code requirements, the plaintiffs have indicated their willingness to give that approval, and such approval is SO ORDERED. Judgment shall enter accordingly.


Keith C. Long, Justice

Dated: 13 October 2011


[Note 1] Trial Ex. 1, vol. 1, p. 4, Land Court Plan 11408 - 115.

[Note 2] See id. Condominiums 3a (“lot 1192”), 3b (“lot 1191”), 3c (“lot 1190”), 3d (“lot 1189”), and 3e (“lot 1193”) are notated with encircled text along the far left and far right of Land Court Plan 11408-115.

[Note 3] Complaint at 3.

[Note 4] Trial Exs. 5, Master Deed Maushop Village Condominium 3c, and 6, Maushop Village Condominium 3c Declaration of Trust, vol. 1, pp. 55-71 and 73-104. The Master Deed to Condominium 3c has been amended at least twice, pursuant to Phases II and III of Condominium 3c, included as Trial Exs. 8 and 9, vol. 1, pp. 110-19 and 121-30.

[Note 5] Trial Ex. 3, vol. 1, pp. 17-28, Maushop Village Declaration.

[Note 6] Trial Ex. 2, vol. 1, pp. 7-15, Grant of Easements.

[Note 7] Trial Ex. 4, vol. 1, pp. 30-53, Maushop Village Declaration of Trust.

[Note 8] The Maushop Village Declaration states in its section on “Restrictions:”

4.1 New Construction. No structure, whether residence, accessory building, shed, swimming pool, mail or newspaper box or other improvement (a “Structure”), and no new landscaping or grounds treatment shall be constructed or made upon Maushop Village without the prior written approval of the [Architectural Review] Committee given pursuant to Paragraph 4.7.

4.2 Alterations. No awning, screen, antenna, sign, banner or other device, and no exterior change, alteration, addition, projection, decoration or other feature shall be erected or placed upon or attached to any Unit, building or any part thereof; no addition to or change or replacement (except, so far as practicable, with identical kind) of any exterior light, or other exterior hardware, exterior door, or door frames shall be made; no painting, staining or other decoration shall be done on any exterior part or surface of any Unit nor on the interior surface of any window without the prior written approval of the [Architectural Review] Committee given pursuant to Paragraph of 4.7. Notwithstanding the foregoing, Unit Owners shall have the right to otherwise decorate the interiors of their Units as they may desire.

4.3 Excavation. No excavation of stone, gravel, sand or earth shall be made, and no landscaping work shall be done on Maushop Village without the prior written approval of the [Architectural Review] Committee given pursuant to Paragraph 4.5 [sic: 4.7?].

See also Maushop Village Declaration of Trust, ¶ 9; Master Deed of the Maushop Village Condominium 3c, ¶ 12.

[Note 9] Trial Ex. 3, vol. 1, p. 20.

[Note 10] Trial Ex. 4, vol. 1, pp. 30-53, Maushop Village Declaration of Trust, ¶ 4.4 (1).

[Note 11] Id.

[Note 12] Id., ¶ 4.4 (2).

[Note 13] Id., ¶ 4.4 (13).

[Note 14] Id., ¶ 9. Should the Village Trustees fail to act within three months after the ARC’s six-month window expires, the power to give such approvals then passes to the 3c Condominium Trustees. See Trial Exhibit 5, Master Deed of the Maushop Village Condominium 3c, ¶ 12.

[Note 15] Trial Ex. 6, Maushop Village Condominium 3c Declaration of Trust, ¶ 4.4 (1).

[Note 16] Id.

[Note 17] Id. ¶ 4.4 (6).

[Note 18] The Maushop Village Declaration, ¶ 1.4, states, “the Land, exclusive of the Units, is herein referred to as the ‘Common Area,’ ” and, upon filing the Master Deed and Declaration of Trust, this term “shall have the same meaning herein as in such instruments.” The “Land” refers to that owned by New Seabury Corporation, the Declarant and developer, shown as Lots 1183, 1184, 1185, 1186, 1187, 1188, 1189, 1190, 1191, 1192, 1193, 1194, 1195, and 1196 on Land Court Plan 11408-115, and improved with a total of 46 [dwelling] units at the time of the Declaration. It also includes the areas added in subsequent enlargements. Id. at ¶ 7.

The Grant of Easements for Maushop Village, ¶ 4.5 states:

4.5 Common Elements.

(a) Each Condominium Lot and each Single Family Lot shall have an easement for recreational uses over the Common Elements of the other Condominium Lots and over presently existing or future unimproved areas of the other Single Family Lots.

(b) Use of the Common Elements by those with easement rights therein shall be subject to such reasonable rules and regulations as to the time and manner of use, and other matters, as may be promulgated by the Village Trustees, it being expressly declared that the Village Trustees retain the right to promulgate such rules and regulations. (emphasis added).

[Note 19] Trial Ex. 5, Master Deed of the Maushop Village Condominium 3c, ¶ 4.1. The Maushop Village Condominium 3c Declaration of Trust, ¶ 1.6 defines “Common Elements” as “the common areas and facilities of the Condominium as so described and designated from time to time in the Master Deed.” As these definitions, cross-references, and uses of the terms “Common Area” and “Common Elements” suggest, the terms are used interchangeably throughout the condominium documents to refer to the same space “exclusive of the units.”

[Note 20] The Master Deed, ¶ 4.1, provides that upon the creation of additional Units during subsequent phases of the condominium, the “area of air space of the Common Elements shall be reduced by the area of the Units included” in each phase.

[Note 21] Id., ¶ 2.

[Note 22] Id., ¶ 3.

[Note 23] Id.

[Note 24] Id., Exhibit A.

[Note 25] Id., Exhibit B.

[Note 26] Trial Ex. 4, Maushop Village Declaration of Trust, ¶ 7.1.

[Note 27] Trial Ex. 6, Maushop Village Condominium 3c Declaration of Trust, ¶ 7.1.

[Note 28] The Village Charges are assessed by the Village Trustees among the condominium trustees of each of the five condominiums (the “Beneficiaries” of the Maushop Village Trust), according to their respective beneficial interests, whereas the Common Charges, including such amounts required to pay the Village Charges, are assessed by the condominium trustees among the unit owners according to their respective undivided interests.

[Note 29] Trial Ex. 12, vol. 1, p. 136, 3c Phase III, Land Court Plan 11408 – 117 – 3 (Lot “1190C”). Trial Ex. 10, vol. 1, p. 132, depicts Phase I of Condominium 3c (Lot “1190A”), whereas Trial Ex. 11, vol. 1, p. 134, depicts Phase II of Condominium 3c (Lot “1190 B”).

[Note 30] Trial Ex. 14, vol. 1, pp. 142-45, Berksza Plans.

[Note 31] Trial Ex. 63, vol. 7, p. 109; Trial Testimony, vol. 2, p. 110.

[Note 32] Trial Ex. 63, vol. 7, p. 72-76; Trial Testimony, vol. 2, p. 132. The Minutes of the October 16, 2004 meeting of the Village Trustees, include in part, “Berksza (762) Cottage – It is proposed to remove and reconstruct the existing cottage as shown on the attached plans, pending the resolution of the design detail issues currently being addressed by the architect. Height to the building being adding [sic] is 6’ to 8’ overall. Footprint not the same, patio to dining room. Two bedrooms will stay two bedrooms. The Village Trustees will visit the site.”

[Note 33] Trial Testimony, vol. 2, p. 133.

[Note 34] Trial Ex. 63, vol. 7, p. 108; Trial Testimony, vol. 1, p. 136. The February 4, 2005 letter further requests, “Please have your architect show the current height and the proposed height on the set of plans.”

[Note 35] Trial Ex. 63, vol. 7, p. 109; Trial Testimony, vol. 1, pp. 163-64.

[Note 36] Trial Ex. 63, vol. 7, p. 83; Trial Testimony, vol. 1, pp. 137-38. The February 15, 2005 letter states, “The Village Trustees reviewed your request to increase the height of your cottage. This part of your request has been denied due to the lack of assurance that the height will not increase above the current height of the cottage. Please resubmit a plan showing current height of the cottage and proposed replacement cottage at the same height.”

[Note 37] Trial Ex. 63, vol. 7, p. 86; Trial Testimony, vol. 1, p. 142; Trial Testimony, vol. 2, p. 138.

[Note 38] Trial Testimony, vol. 1, pp. 142-43.

[Note 39] Trial Ex. 16, vol. 1, pp. 150-53; Trial Testimony, vol. 2, p. 145.

[Note 40] Trial Ex. 49, vol.5, pp. 94 and 119; Trial Testimony, vol. 1, pp. 164-65 and vol. 2, pp. 112-14 and 145-46.

[Note 41] See Maushop Village Declaration ¶ 1.4 and Master Deed of the Maushop Village Condominium 3c, ¶ 4.1;

[Note 42] Id.

[Note 43] See, e.g., Lallo v. Szabo, 75 Mass. App. Ct. 1 , 4-5 (2009) (holding that a similar unit expansion proposal, which included the extension of the back roof line, installation of dormers, a roof deck, and a new roof, would have affected the condominium’s common areas, thereby changing the percentage of undivided interest in the common areas and requiring unanimous consent of all unit owners).

See also Xifaras v. Andrade, 59 Mass. App. Ct. 789 (2003) (finding unit owner’s enclosure of portico and stairwell extension into basement area unlawfully encroached into the common areas).

[Note 44] An expansion could occur that would not affect the percentage allocation of interests, but only through “the granting of an easement by the organization of unit owners, or the designation or allocation by the organization of unit owners of limited common areas and facilities, or the withdrawal of a portion of the common areas and facilities, all as provided for in [G.L. c. 183A, §§ 5 (b) and (c)].” G.L. c. 183A, § 5(b)(1). Note that these also require the assent of certain other unit owners and/or their first mortgagees. See G.L. c. 183A, §§ 5(b) and (c). No such grants, designations, allocations or withdrawals occurred here.

[Note 45] This is not a case of “condominium use restrictions,” which are limited to those matters reasonably related to the overall “health, happiness and peace of mind of the unit owners” and commonly reviewed under a standard of reasonableness. Noble v. Murphy, 34 Mass. App. Ct. 452 , 457-58 (1993) (quoting Hidden Harbour Estates, Inc. v. Basso, 393 So. 2d 637, 640 (Fla. Dist. Ct. App. 1981)) (internal quotations omitted). Rather, this case concerns encroachments into condominium common areas outside the individual units. The protection of common areas from individual owner encroachments is fundamental to the structure of condominiums and, as discussed above, is grounded in both G.L. c. 183A and the Maushop Village condominium documents.

[Note 46] Trial Ex. 4, vol. 1, Maushop Village Declaration of Trust, ¶ 4.4 (13).

[Note 47] Trial Ex. 63, vol. 7, p. 86; Trial Testimony, vol. 2, pp. 137-39.

[Note 48] See Trial Ex. 49, vol. 5, pp. 95-99; Trial Testimony, Vol. 2, pp. 142-44.

[Note 49] Trial Testimony, vol. 1, pp. 82, 97-99; Trial Ex. 46, vol. 4.

[Note 50] Trial Testimony, vol. 1, pp. 207-08, 213-25, vol. 2, pp. 32-37, 46-48; Trial Ex. 47, vol. 4, p. 184.

[Note 51] Enegren v. Heinstein, 1991 WL 11259385 (Mass. Land Ct.) (Kilborn, J.), cited by the Berkskas, is also inapposite to this case. It concerns encroachments into Maushop Village common areas resulting from the relocation of two cottages, one due to Conservation Commission requirements as a result of, and after, significant erosion of the Oceanside embankment, and the other to add trash sheds for the more sightly storage of trash and the enlargement of bedroom areas to accommodate a Health Department requirement for indoor showers. The first relocation resulted in no net encroachment, but instead a net “give back” to the Common Elements of Condominium 3c of 74 square feet. The second relocation, after “give back”, resulted in a net encroachment of only four square feet or .004 percent of the area (about 93,000 square feet) of the Common Elements of Condominium 3b. Moreover, and importantly, because both were done by the developer for health and safety reasons at the time Maushop Village was first developed, both were expressly authorized by the “Development Privileges” provisions of the condominium documents.

[Note 52] Trial Ex. 58, vol. 6, p. 113; See Trial Testimony, vol. 1, pp. 106-07; Trial Ex. 55, vol. 6, pp. 66-67.

[Note 53] See Strauss v. Oyster River Condominium Trust, 417 Mass. 442 , 447 (1994) (declining to bind unit owners to an unlawful master deed provision despite the owners’ notice of its existence at the time they acquired interests, because this would mean any master deed provision would “overrule the requirements of the condominium statute,” and “[t]he Legislature could not have intended that result.”)

Moreover, the reluctance to bind the public to earlier missteps by public entities is directly applicable to the condominium context. See Holahan v. Medford, 394 Mass. 186 , 191 (1985) (“In general, we are reluctant to apply principles of estoppel to public entities where to do so would negate requirements of law intended to protect the public interest.”) (internal citations and quotations omitted). For the same reason, condominium owners should not be handcuffed for all time by the past erroneous actions of their trustees.