MISC 130320

January 5, 1989

Suffolk, ss.



The plaintiffs, Kenneth F. Kames and Edythe Kames, owners of a unit in Phase III of the Cabot Estate Condominium, situated on Perkins Street in Boston and Brookline, filed a motion for summary judgment on Count I of their complaint which was heard by the Court on December 14, 1988. The defendants and plaintiff-in-crossclaim, Andrew Warshaw, Lawrence Shulman and Eugene Lyne, Trustees of the Cabot Estate Condominium Trust, similarly filed a motion for summary judgment which was argued by counsel for the parties at the same hearing. This Order grants both the plaintiffs' motion and that brought by the defendant Trustees.

This matter has followed a tortuous course through the Trial Court. The complaint originally was filed in the Superior Court. However, the plaintiffs transferred the action to the Housing Court Department prior to making service and subsequently, on application by the defendant Trustees of the Cabot Estate Condominium Trust to the Supreme Judicial Court, the matter was transferred to this Department.

There is no dispute as to the material facts which form the basis of the complaint and the crossclaim. There are factual issues presented by the other counts in the complaint, but those need not be reached at this stage of the proceeding and do not bar the granting of the plaintiffs' motion for partial summary judgment. For purposes of clarity, I have outlined the nature of the controversy and the facts which are not in dispute.

1. The master deed of Cabot Estate Condominium was dated July 30, 1976 and duly recorded with Suffolk Deeds.

2. The declarants in the master deed were Pasquale Franchi and Bernard J. Corsi , Trustees of Cabot Development Trust. For reasons not here material, the declarants' interest subsequently was transferred to Milpo, Inc. and then to Cabot Estate Development Company. The master deed provided for development of the condominium in four phases which ultimately was not done chronologically since Phase IV preceded Phase III. The present controversy arises from the construction of the two mid-rise buildings, Clusters C and D in Phase III, and more specifically to actions taken in connection with the building in Cluster D.

3. The master deed includes in paragraph 5(c) as a common area "storage areas, but not basements for basements are part of a Unit." It further provides in paragraph 8.2 for the addition by amendment of Phase III and "the common areas and facilities shall include all the same elements of the buildings and grounds which are described in section 5."

4. By amendment dated May 16, 1983 and recorded with Suffolk Deeds Book 10342, Page 116, Phase III was added to the Cabot Estate Condominium. The amendment specifically provides that in Phase III there were two building clusters with Cluster C containing 29 residential units and Cluster D 19 residential units. Each unit is described in Exhibit A thereto and Exhibit B sets forth its appropriate interest in the common areas. The amendment provides that the common areas and facilities include the same elements, factors and facilities of the buildings and grounds as are described in Section 5 of the master deed as common areas and facilities. Therefore, storage areas fall within the classification of common areas. There also are special common areas and facilities in Phase III relating to certain factors not included in Phases I and IV, but they are not material to this decision.

5. At the time in question the defendants Harold Theran and Donald Paige were the developer-appointed members of the Cabot Estate Condominium Trust, the governing body of the condominium; the third member was Eugene Lyne who took no part in the action to which the plaintiffs and plaintiffs­in-crossclaim object. By instrument dated March 26, 1987 and recorded with said Deeds in Book 13526, Page 215, the defendants Theran and Paige, as trustees as aforesaid, assigned to Harold A. Theran, the owner of Condominium D-602 "the storage space which is adjacent to the north corner and the basement of Condominium Unit D-405." The assignment further provides "this storage area may be used for any 'purpose' permitted by the zoning laws of the City of Boston." Theran alleges that he paid to the developer of which he was an important principal, the sum of $25,000 as consideration for the assignment although the grant came from the Condominium Trust. Nothing was paid to the latter organization.

6. There is no provision in either the master deed or in the amendment thereto which permits the grant of exclusive easements to use the storage areas, nor is there any authority reserved therein to convert a portion of the common areas and facilities of the Condominium into an additional residential unit. Such a creation necessarily would require alteration of the unit owners' interest in the common areas and would require consent pursuant to the provisions of G.L. c. 183A , §5, most recently amended by St. 1987, c. 87. [Note 1] After the assignment to defendant Theran of the storage area, he caused it to be converted into a residential unit which was occupied by third parties. The area outside the storage area became a terrace from which the plaintiffs allege that it was possible to observe activities within their unit and more specifically in their bedroom. They further alleged that a residential unit so close to theirs constituted a nuisance insofar as the activities therein, such as loud noise and the like were concerned. Any question as to such a nuisance would be factually based, and it is not considered herein.

7. The plaintiffs are the grantees named in a condominium unit deed from Harold A. Theran, et al, Trustees of Perkins Realty Trust, which deed conveys Unit D-304 at 241 Perkins Street for consideration of $345,000.00, is dated July 8, 1986 and was duly recorded with said Deeds. In addition to conveying the above numbered unit the deed also conveyed an undivided 1.09% interest appurtenant to said unit in the common areas and facilities of said condominium, and to get her with the rights and easements appurtenant to said unit as set forth in the master deed. There is no specific provision therein granting the plaintiffs any easement in the storage areas. There is, however, the standard language required by the statute as to the verified statement of a registered architect which includes a certification that the plans fully and accurately depict "a layout of the Unit hereby conveyed, its location, dimensions, approximate area, main interests and immediate common areas to which it has access, as built."

G.L. c. 183A, §5 provides for the ownership by the owner of each condominium unit of an undivided interest in the common areas and facilities of the condominium, and the unit owner's percentage in the common area cannot be changed without the consent of all unit owners whose percentage of the undivided interest is affected, St. 1987 c. 87 amending paragraph (b) of section 5. Without a provision in the master deed permitting the granting of exclusive easements to use storage areas, the assignment by the trustees to the defendant Theran was a breach of their fiduciary duty as trustees of the condominium trust and was voidable both by their successors and perhaps by the indivdual unit owners particularly affected. Theran points to other grants of exclusive easements in storage areas to third parties, and the trustees represented at the hearing on the motions for summary judgment that the records thereof have now been obtained. This situation can be remedied by an amendment of the master deed to authorize the grant of exclusive easements or by the institution of some administrative routine by which the storage areas can be used in common. As the records now stand, however, there can be no grant of an exclusive easement in the common area without the consent of the unit owners. While Beaconsfield Towne House Condominium Trust v. Zussman, 401 Mass. 480 (1988) did not specifically so decide since it was concerned with the question of statute of limitations, it seems clear that this is the law of the Commonwealth. The problem on which decisions have focused and which was one of the issues in Commercial Wharf v. Waterfront Parking, Land Court Miscellaneous Case No. 117161 (October 19, 1988) concerns the validity of easements affecting the condominium premises prior to the execution of the master deed. I believe there is no dispute within the legal community that easements granted by the trustees after the execution of the master deed without authority having been reserved in the master deed are unenforceable. In addition, neither the powers granted to the trustees by the delaration of trust, nor those set forth in c. 183A, §108 (1) (2) are broad enough to include the grant made by the trustees. What the trustees did in the present case was not even the grant of the exclusive easement but an abortive attempt to assign all interest in the storage area, clearly beyond their competence without even reaching the question of self dealing.

The case is even clearer when we turn to the conversion of the storage area into a residential area. The master deed, as amended, provides only for a certain number of residential units in Phase D. The conversion by the defendant Theran of the storage area to a living unit falls without any powers inclued in either the statute or the master deed. It is true that the assignment authorized the assignee to use the common area for any purpose authorized by the City of Boston, but such a grant was clearly without the powers of the trustees and does violation to the whole concept of the condominium. It is not the action that might be expected from a party so well versed in the laws of condominiums and one of the leading developers in the condominium field within Boston and its environs.

The defendants have raised the question as to the standing of the plaintiffs to complain about the actions set forth herein. The defendants argue that the deed to the plaintiffs does not grant to them any exclusive easement in the storage area in question and that the plaintiffs have misread the provisions in their deed. I agree. However, it does not follow that the plaintiffs in view of the location of their unit to the storage area in question do not have a particular interest which they can enforce in these proceedings even though generally the organization of unit owners represents the condominium in any dispute involving the use thereof. I do not read Golub v. Milpo Inc., 402 Mass. 397 (1988) (which involved the same condominium) as holding that individual unit owners with a special interest in the common areas do not have standing to bring an action like the present, but rather that a unit owner whose individual unit is damaged by actions of third parties, as apart from damage to the common areas, is not barred from the recovery of damage to the unit by a settlement reached by the organization of unit owners with the third party. In any event, it is clear that the plaintiffs-in-crossclaim have standing to raise the question as to the validity of the assignment to the defendant Theran and the conversion by him of the storage area to a residential unit.

For the reasons set forth herein, I hereby grant the plaintiffs' motion for summary judgment on Count I and the motion of the plaintiffs-in­crossclaim for summary judgment and I order that the area in dispute, including the terrace, be restored to the condition it was in prior to the assignment by the defendants Theran and Paige, or either of them. I further find and rule that the assignment by the trustees of the storage area was voidable since it was without the powers of the trustees, that the conversion of the storage area to a residential unit was a violation of the provisions of the master deed and of c. 183A and that the violation cannot continue.

By the Court


[Note 1] The 1987 amendment which is not applicable here, would not lead to a different result.