CARTER W. ELTZROTH vs. MARY ANNE DWYER.

The plaintiff has brought this action to enforce certain restrictions which limit the defendant's use of a courtyard in a condominium located at 61 Mount Vernon Street, Boston. The defendant has questioned the plaintiff's standing as an individual unit owner to bring suit against another individual unit owner to enforce certain provisions of the condominium by-law. While G.L. c. 183A, §10(4) and the condominium by-law appear to support the defendant's contention, I will, for reasons of judicial economy, treat this matter as a request for a declaration of the rights of the parties pursuant to the restrictions in question. Accordingly, after hearing arguments of counsel and reviewing the affidavits and pleadings, I find that there are no genuine issue of material fact; therefore, this matter is ripe for summary judgment pursuant to Rule 56, Mass. R. Civ. P.; Community National Bank v. Dawes, 369 Mass. 550 (1976).

I find the following facts to be pertinent and uncontested:

1. The plaintiff is the owner of Unit A and the defendant is the owner of Unit G of 61 Mount Vernon Street, Boston, a condominium created by a master deed recorded September 29, 1970 in Book 8392, Page 123 at Suffolk County Registry of Deeds.

2. Unit A is located on the first floor; Unit G and the access to the courtyard and terrace, the subject of this controversy, are located on the basement floor.

3. A restriction appears in the First Deed of Units as follows:

Said Unit A is conveyed with the benefit of the exclusive right to use for recreational purposes the area crosshatched and labeled "Terrace" on the plan recorded with said Master Deed and encitled "Existing Basement Plan, 61 Mt. Vernon St. . ."; it being agreed that no other part of the courtyard of which said terrace is a part shall be used for recreational purposes by anyone.

This restriction is repeated in each deed in the chain of title for Unit A and/or referenced in each deed in the chain of title for Unit G.

4. On July 11, 1984, a restrictive covenant executed by Richard G. Nilo, a predecessor-in-title to the defendant, was recorded in Book 11021, Page 338 providing that:

Nilo hereby agrees for himself and his heirs, executors, administrators, successors and assigns, that he will not use any portion of the Courtyard [of the Condominium] for any purposes whatsoever from and after the date hereof, except as may be absolutely necessary in case of emergency, and except to clean, maintain or repair as may be reasonably necessary any portion of said Unit G adjoining the Courtyard, including, without limitation, the windows of said Unit. [T]his restriction shall run with and burden the title to Unit G and shall run with and benefit the title to Unit A.

The defendant's deed recites that it is subject to the restrictive covenant "to the extent that such covenant is valid and enforceable."

5. The defendant maintains that the foregoing restrictions are invalid and refuses to abide by them.

6. The foregoing restrictive language is not contained in the master deed or the by-law as recorded.

7. The common areas are set forth in the master deed as follows:

The common areas and facilities of the condominium shall include such areas and items listed in Section 1 of said Chapter 183A and, without limiting the foregoing, all areas and facilities of the condominium as are not within a unit of the condominium, shall be common areas and facilities of the condominium.

G.L. c. 183A, §1 defines, in pertinent part, common areas and facilities as:

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

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

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

8. The master deed also contains the following language:

Unit owners may be granted pursuant to the By-Laws the exclusive right to use designated balconies and terraces to which their particular units have convenient access. . . .

Similar language appears in the by-law at Section 15 of Article V:

Section 15. Balconies and Terraces. The Managing Board may grant to unit owners the exclusive right to use the balconies and terraces to which their particular units have access . . . all in accordance with the rules and regulations referred to in Section 16 of this Article V.

Section 16. Rules of Conduct. Rules and regulations concerning the use of units and the common uses and facilities may be promulgated and amended by the Managing Board with the approval by vote of a majority of the unit owners.

G.L. c. 183A, §S(c) states in part:

(c) The common areas and facilities shall remain undivided and no unit owner or any other person shall bring any action for partition or division of any part thereof except as provided in sections 17, 18 and 19. Any covenant or provision to the contrary shall be null and void.

9. G.L. c. 183A, §5(d) states:

Each unit owner may use the common areas and facilities in accordance with their intended purposes without being deemed thereby to be hindering or encroaching upon the lawful rights of the other unit owners.

The following sections of the by-law are pertinent to the use of the common areas:

Article V, Section 10. Restriction on Use of Units.

(b) The common areas and facilities shall be used only for the furnishing of the services and facilities for which they are reasonably suited and which are incident to the use and occupancy of the units.

Section 13. Use of Common Areas and Facilities. A unit owner shall not place or cause to be placed in the stairways or other common areas or facilities, other than the areas designated as storage areas, any furniture, packages, or objects of any kind. The entry passages, stairways, corridors, and halls, shall be used for no purpose other than for normal transit through them.

10. The terrace is located at the end of an area shown on the "Existing Basement Plan" as "courtyard." Access to the terrace from Unit A is down a flight of stairs, apparently in common use with all other units, except possibly Unit G, through a door into the courtyard and onto the terrace.

11. At the time of recording the "First Deed of Units," James H. Currens, as trustee of 61 Mount Vernon Street Trust, was sole owner of all condominium units and also the sole member of the Managing Board.

The question herein is whether a portion of a common area may be reserved for the exclusive use of one unit and, if so, whether it was properly done.

There is no question that both the courtyard and the terrace are common areas (finding 7 above). It appears furthermore that Currens, the original grantor, could have amended the master deed to include the terrace with Unit A. As the master deed was not so amended, we must then look to that instrument itself as well as the by-law to determine what authority, if any, Currens had to grant the alleged exclusive covenant to Unit A.

As found in paragraph 8, the Managing Board may grant unit owners exclusive rights to use balconies and terraces to which their particular units have access (the master deed states convenient access). I note that the "First Deed of Units" creating the grant of the "terrace" is the deed of James H. Currens as trustee of 61 Mount Vernon Street Trust and not as the Managing Board. As trustee, he had no authority to convey the easement and accordingly, the terrace remains a common area.

The defendant argues that the clear meaning of access is direct access to and from the particular unit. I do not agree; had the by-law or master deed so intended, it well could have used the term direct, or exclusive access. The definition of "convenient" is, in fact, "near at hand." In this instance, it appears all the units have access to the terrace.

The plaintiff has argued that, in any event, the "Nilo" covenant (finding 4) grants an exclusive easement at least between Units A and G. Such agreement, in light of the foregoing, is in violation of G.L. c. 183, §5(c) and accordingly, is void.

While the terrace is a common area subject to various uses by the unit owners, the by-laws are clear that "no unit owner shall place or cause to be placed in . . . common areas . . . any furniture, packages, or objects of any kind." Such restrictions are to be enforced by the association of unit owners. Moreover, the Managing Board may, if it wishes, grant to any unit owner the exclusive rights to use the terrace subject to provisions of the master deed or by-law.

Accordingly, I find and rule that the plaintiff does not have an exclusive easement over the terrace as described herein and further, that the plaintiff as a unit owner is not a proper party to bring suit to enforce provisions of the condominium by-law. I further find and rule that no one has a right to place or cause to be placed in the courtyard any furniture, packages or objects of any kind.

Judgment accordingly.