MISC 119210

September 5, 1991

Barnstable, ss.



This action involves alleged encroachments by two buildings ("Unit 643" and "Unit 671", respectively) into appurtenant easements in Maushop Village ("Maushop Village") in the New Seabury section of Mashpee. Each Plaintiff is an owner of a Unit in one of the Condominiums of Maushop Village. Count I of the Complaint is for trespass and demands the removal of the encroachments and damages. Count II is for negligence as to the establishment and maintenance of the encroachments and also demands their removal and damages. Count III alleges breach of contract by Defendant New Seabury Corporation ("NSC") by virtue of an alleged misuse of certain office space.

NSC counterclaimed for interference with contract rights as to a frustrated sale of Unit 643 and for abuse of process. Maushop Associates Limited Partnership was dismissed as a Defendant by stipulation May 23, 1986. The Defendants Heinstein, Howell, Howell, Palan, Dermarderosian, Kibbe, McQuillan, Hartigan, Shoener and Banner were included as Defendants as they are Trustees of various Condominium Trusts referred to hereinafter. On February 23, 1989, the various LaPlantes, as current owners of Unit 643, the Bekensteins, as current owners of unit 671, and Nancy L. Burden, as mortgagee of both Units 643 and 671, were added as Defendants as to Count I of the Complaint. On June 30, 1989 the named Trustees amended their Answer to include a cross-claim against NSC for indemnity and breach of contract. Plaintiffs' motion for partial summary judgement was denied February 21, 1991.

By agreement the trial was scheduled in two stages, the first limited to the allegations that Units 643 and 671 encroach upon easement areas benefitting Plaintiffs. The remaining matters were reserved for a second stage, if necessary. Prior to trial, Plaintiffs waived any claim for damages as to Count I, being content to seek removal of the alleged encroachments.

The first stage trial was held on May 7 and May 8, 1991, at which a stenographer was appointed to record and transcribe the testimony. Exhibits numbered 1 through 49 were introduced into evidence (except that #26 was withdrawn, so that there were 48 Exhibits in all), all of which are incorporated in this Decision for purposes of any appeal. The Court took a view on May 20, 1991. The following witnesses testified: Plaintiff, Bradley J. Enegren; Michel F. LaPlante (one of the Defendants); Christopher Burden (President of NSC) ; and Peter Ogren (a principal of Hayes Engineering, Inc., which prepared various plans for Mauhop Village). The parties submitted a "Joint Stipulation of Facts for Stage I of the Trial" (filed December 13, 1989). An "Additional Stipulation of Facts for Stage I of the Trial". was filed May 7, 1991; that was signed by all the parties, including Michel F. LaPlante, but not the other LaPlantes, who by that time were appearing pro-se. Counsel for Plaintiffs reserved the right to object to the relevancy of the material covered by the "Additional Stipulation".

The contested issues were:

a) Whether Plaintiffs (as opposed to the respective Condominium Trustees) have standing to raise the issue of the alleged encroachments. I find they do not;

b) Whether trespass is an appropriate remedy. I find it is;

c) Whether the alleged encroachments were authorized under the relevant documents. I find they were; and

d) Whether the encroachments (if not authorized) should be ordered removed. I find they should not.

More particularly, I find and rule as follows:

1. NSC, at all times relevant to this action, was a Massachusetts corporation, with a principal place of business in Mashpee. In April 1980, NSC created five condominiums, called Maushop Village Condominiums 3a, 3b, 3c, 3d and 3e, respectively, on registered land in Mashpee, then owned by NSC. Maushop Village is an attractive, well developed, residential condominium complex located in the New Seabury section of Mashpee overlooking Nantucket Sound. Each Condominium includes free-standing Units, duplex Units and appurtenant facilities. These facilities include a beach, located at the bottom of a 30 foot embankment from the buildings comprising Maushop Village. Master Deeds for the Condominiums were registered with the Barnstable Registry District of the Land Court (all registration references in this Decision are to that Registry District) as Documents 266616, 266618, 266620, 266622 and 266624, respectively (Exhibits 9 through 13, respectively) ("the Master Deeds").

2. Each Condominium Unit owner owns an undivided interest in the "Common Elements" (described below, but essentially the common areas and appurtenances) of the Condominium in which the Unit is located. In addition, each Unit in each of the five Condominiums has an easement over the Common Elements of the other four Condominiums for "recreational uses", subject to "reasonable rules and regulations", as provided in a "Grant of Easements-Maushop Village", described below.

3. The five Condominiums are administered by the "Maushop Village Trust", the beneficiaries of which are the Trustees of each individual Condominium. The Maushop Village Trust is not itself a condominium.

4. Plaintiff, Bradley J. Enegren is the owner of Unit No. 781 in Condominium 3d; he purchased the unit in or about November, 1983.

5. Plaintiff, Vincent A. Bucci is the owner of Unit No. 709 in Condominium 3a. He purchased his unit in or about May, 1985; prior to that, he owned Unit No. 791 in Condominium 3d.

6. The Condominium documents described below established areas for the location of individual Units and their showers and patios. I will refer to the area initially allowed for a Unit (the total of its building area, patio area, expansion area and shower area, as set forth in its Master Deed, see below) as the Unit's "Phase I Footprint". The land area of each Condominium less the Phase I Footprints of the Units in the Condominium comprises (together with other common facilities and easements) the "Common Elements" of the Condominium. Unit 643 as it now stands (including the cottage itself, a shed and patio) strays outside its Phase I Footprint, and thus encroaches upon the Common Elements of Condominium 3b, by about 27 square feet. On the other hand, Unit 643 (including cottage, shed and patio area) as it now stands does not occupy approximately 23 square feet of its Phase I Footprint, i.e., land it could have occupied. (I will refer to such an area of unoccupied Phase I Footprint as "Give-Back Area"). The encroachment less Give-Back Area thus yields a net encroachment of approximately 4 square feet, which is 0.004 percent of the area (about 93,000 square feet) of the Common Elements of Condominium 3b.

7. Unit 671 as it now stands (including cottage, shed and patio area) encroaches upon the Common Elements of Condominium 3c by about 544 square feet, but produces about 618 square feet of Give-Back Area, yielding no net encroachment but a net Give-Back Area. The area of the Common Elements of Condominium 3c is about 152,500 square feet.

8. Thirty-eight of the condominium Units at Maushop Village (including Units 643 and 671) originated from free-standing single­family residential cottages which existed before the property was subdivided into condominiums in 1980. These cottages were in poor condition and several were located dangerously near an eroding cliff overlooking Nantucket Sound. Buyers of many of these Units, including Units 643 and 671, were required by the local building inspector to completely rebuild them. In addition, the Conservation Commission ordered Unit 671 moved back from its position near the edge of the cliff and required certain drainage work to be done to control further erosion near the original site of the cottage. The reconstructions of Units 643 and 671 were undertaken by NSC as developer. NSC owned Units 643 and 671 when this action was begun. In addition to the Units originating from cottages, Maushop Village includes many new structures, not at issue here.

9. The first instrument of record relevant here is a "Grant of Easements Maushop Village" dated April 16, 1980 (Exhibit 19), registered as Document 266613 (the "Grant of Easements"). This recites that NSC is owner of the five lots and is establishing the five Condominiums. It establishes reciprocal easements in utilities, leaching fields, roads, the beach on Nantucket Sound, and parking facilities, benefitting each of the Condominium lots.

10. Paragraph 4.5 of the Grant of Easements then provides as follows (the "Recreation Easement"):

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.

11. The term "Common Elements" is defined in paragraph 4.1 of the Master Deeds for each of the five Condominiums and that definition is incorporated into the Grant of Easements by its paragraph 3. The definition is:

4.1 Common Elements. Until the amendment or amendments of the Master Deed creating a Subsequent Phase or Phases, the common areas and facilities of the Condominium (herein called the "Common Elements") shall consist of the Property, as defined above, exclusive of the Phase I Units. Upon the filing of any such amendment and the creation of additional Units within what was theretofore Common Elements, the area of air space of the Common Elements shall be reduced by the area of the Units included in such amendment.

12. The Grant of Easements provides expressly that its easements benefit future Phases of the Condominiums and bind and enure to the benefit of the successors and assigns of the "Benefitted Owners" and the "Burdened owners", which terms mean the owners of the respective Condominium lots.

13. Paragraph 7(b) of the Grant of Easements provides that the Recreation Easement is:

(b) Relocation. Subject to the rights of the Burdened Owners from time to time to relocate the easements granted, established and declared herein, provided that in each case the relocated easement is:

(i) substantially as convenient to the Benefitted Owners as the area for which substitution was made;

(ii) finished at the expense of such Burdened Owner to substantially the same standard as that for which substitution was made; and

(iii) established by grant and plan duly filed at such Burdened Owner's expense. Upon each substitution the Benefitted Owner or Owners shall on request execute appropriate instruments prepared by the Burdened owner acknowledging such substitution and releasing all rights in the portions for which such substitution was made.

14. The Grant of Easements is followed by a "Declaration-Maushop Village" dated April 16, 1980, registered as Document 266614 by NSC as Owner. That establishes appurtenant rights in roads in the complex and, at paragraph 4, establishes various restrictions, in effect until January 2, 2000, but extendable for an additional forty years. These restrictions cover new construction, alterations of existing structures, landscaping and the like and require the consent of an "Architectural Review Committee". Paragraph 9.1 "Development Privileges" reserves the following rights, ("Declarant" being NSC):

9.1 Development Privileges.

Nothing in the restrictions set forth in Paragraph 4 shall apply to the Declarant or any person, firm or corporation while acting on behalf of the Declarant, or any successor in title during the course of the development of Maushop Village. Without restricting the generality of the foregoing, the right is reserved to excavate and grade, erect permanent (including, without limitation, the additional Units included in the second phases of the condominiums referred to in Paragraph 1.4) or temporary structures, including trailers, model homes, and offices, and do all things which in the Declarant's sole judgment are for the best interests of the development of Maushop Village.

15. Next is the "Maushop Village Declaration of Trust", dated April 16, 1980 and registered as Document 266615. This provides for "Village Trustees" who collectively handle certain matters relating generally to the five Condominiums. These include the upkeep of the Common Elements, allocating and regulating the use of parking spaces and adopting and amending rules and regulations governing use of the roads and parking facilities and "Doing anything and everything else necessary and proper for the sound management and operation of the Common Elements".

16. Next follow the Master Deeds, described above. These describe the cottages then on the land and provide for the construction of additional Units in up to two subsequent phases. Additional phasing was to be accomplished by amendments to the Master Deeds by NSC by virtue of a right of unilateral amendment reserved to it.

17. Paragraph 8.1 of the Master Deeds provides as follows:

8.1 Encroachments. If any portion of the Common Elements now encroaches upon any Unit, or if any Unit now encroaches upon any other Unit or upon any portion of the Common Elements, or if any such encroachment shall occur hereafter as a result of (a) alteration or repair to the Common Elements made by or with the consent of the Condominium Trustees, or (b) settling of all or any portion of the Buildings, or (c) repair or restoration of the Buildings or any Unit after damage by fire or other casualty, or (d) condemnation or eminent domain proceedings, a valid easement shall exist for such encroachment and for the maintenance of the same so long as the Buildings and the Subsequent Phases Buildings stand.

18. The Master Deeds also provide, at paragraph 8.2, for easements, exclusive to the Units involved, over patio, shower and expansion areas shown on the Condominium plans. The expansion easements permit the construction of additions or expansions to the existing units; the patio easements permit use for residential and related recreational uses; and the outdoor showers are to be used for residential uses. Both Units 643 and 671 have all three of these exclusive easement areas. There is also provision, at paragraph 13 for exclusive "Replacement Areas" allowing the construction of a new unit close by to an existing cottage, in place thereof, but there are no "Replacement Areas" associated with Units 643 and 671.

19. There is also for each Condominium a "Condominium Declaration of Trust", providing for an organization of Unit Owners for the Condominium in question. These Declarations provide, among other things, for powers in the Condominium Trustees to adopt and amend Rules and Regulations concerning the use of Units and Common Elements, (subject to over-ride by a majority vote of the Unit Owners).

20. The development of Maushop Village was accomplished in phases, involving the renovation, expansion, relocation, and in some instances the complete reconstruction, of the existing cottages and the addition of new units. Consistent with this concept of ongoing development, the Condominium documents provided that the Recreation Easement was subject to change, by in at least the following mechanisms: First, the easement itself may be relocated by the owners of the Burdened Land; see paragraph 13 above. Also see paragraph 4.5 (b) of the Grant of Easements (paragraph 10 above), which makes the use of the Recreation Easement subject to reasonable rules and regulations. Second, a change in the Common Elements may be effectuated, which in turn, by definition, changes the Recreational Easement. See paragraphs 4.1 and 13 of each Master Deeds (paragraphs 11 and 18 above), which contemplate new construction on what had theretofore been Common Elements and authorize the corresponding removal of such area from the Condominium's Common Elements. Also see paragraph 9.1 of the "Declaration-Maushop Village" (paragraph 14 above), which reserves to NSC among other things, the right during the course of development to erect permanent structures, not limited to phase two and phase three units. Third, a segment of the Common Elements may technically remain as Common Elements but become subject to the exclusive use of a unit, and thereby be removed from the Recreation Easement: see paragraph 8.1 of the Master Deeds (paragraph 17 above), which grants an easement authorizing various encroachments by a Unit onto the Condominium's Common Elements and paragraph 8.2 of the Master Deeds (paragraph 18 above), which grants to Units various exclusive easements.

21. As changes were made during the course of development of Maushop Village, they were reflected in the Condominium plans registered in conjunction with the creation of phases two and three of each Condominium. Accordingly, while the Condominium plans filed in 1980 show the buildings as they existed before reconstruction, expansion, and relocation, the final set of Condominium plans for Phase III of each Condominium show the buildings as built after all reconstruction, expansion, and relocation was completed (except that patios are not shown). The essence of Plaintiffs' case is that Units 643 and 671, as so located, stray outside the Phase I Footprints provided therefor and that those strayings (the encroachments on Common Elements) are not authorized by any of the mechanisms referred to in paragraph 20 above.

22. NSC argues that Plaintiffs have no standing to sue, stating that the power to litigate non-contractual disputes concerning the common areas of a condominium belongs exclusively to the condominium unit owners' association, and not to individual unit owners, citing M.G.L. c. 183A, §l0 (b) (4) and Cigal v. Leader Development Corporation, 408 Mass. 212 , 217-218 (1990).

23. In Cigal, various counts were brought by individual unit owners against the developer and the foundation subcontractor of a condominium. The Supreme Judicial Court permitted unit owners to bring contract actions against the developer for improper construction of common areas. On the other hand, the Court held that a negligence claim against the foundation sub-contractor had to be brought by the condominium association. The Court stated that the breach of contract claim had an "individual character"; the developer could have promised different things to different prospective unit buyers. As to the negligence claim, the injury was common to all unit owners and G.L. c. 183A, §l0 (b) was designed to forestall piecemeal litigation in such a situation.

24. Cigal and Golub v. Milpo, Inc., 402 Mass. 397 (1988) distinguish between a complaint which seeks to assert an individual right (the right of one or more unit owners) and the assertion of a common right (all unit owners).

25. It is true that the right asserted under the Recreation Easement is of earlier registration than the Master Deeds and that the Recreation Easement expressly benefits successors and assigns of NSC as it was "Benefitted Owner" of each Condominium Lot. Why, one may ask, should this be different from an easement benefitting a large tract of land later subdivided? The owner of any one lot in the subdivision would have the right to enforce the easement. Surely each Plaintiff is an assignee of NSC. The difference is precisely that in this instance the land was subjected to the Condominium regime before the Master Deeds out of NSC; the unit owners were assignees of NSC but they came into the world impressed with condominium status.

26. We do not have here Unit owners arguing over rights in their own common areas, in the usual sense. This is not Condominium 3b Unit Owners arguing over a swimming pool located in Condominium 3b, for instance. We have outsiders (Plaintiff Enegren is a Unit Owner in Condominium 3d and Plaintiff Bucci is from 3a) asserting a right over Condominium 3b. From that viewpoint, this is no different than, for instance, a utility company asserting its rights under an easement long pre-dating the establishment of the Condominium. But there is a difference.

27. The Recreation Easement over any given one of the Condominiums in Maushop Village is, as to the other four Condominiums, part of their "Common Elements". That is so as a matter of logic, but also under the express language of each Master Deed. Each Master Deed submits to the Condominium regime: "said land, . . . together with. . . all easements, rights and appurtenances belonging thereto (all the foregoing being hereinafter collectively called the 'Property')". Each Master Deed defines "Common Elements", in turn as the "Property" exclusive of the Phase I Units (the pre-existing cottages); therefore "Common Elements" include all appurtenant easements, including the Recreation Easement.

28. The assertion of the Recreation Easement is, therefore, the assertion of a common right and neither Plaintiff has standing to do that. Such an action is properly brought by the Condominium Trustees of Condominium 3a or 3d, as the case may be, or at best by Plaintiffs through a derivative action under Mass. R. Civ. P. 23.1, as suggested by the Supreme Judicial Court in Cigal at page 218.

29. Defendants suggest that trespass cannot be maintained against NSC because NSC had (at the time the Complaint was filed) an undivided interest in the burdened land, citing New England Box Co. v. C & R Construction Co., 313 Mass. 696 (1943). That case involved the question whether trespass could be maintained against a wrongdoer by one whose rights in the land in question were perhaps only those of a trespasser itself. Its reasoning is simply not applicable to this action. Surely NSC had a fee interest in the land, but so does every landowner who blocks an easement. Is the holder of the easement to have no recourse? The Supreme Judicial Court has ruled to the contrary, Turkowska v. Dielendick, 321 Mass. 754 (1947).

30. NSC argues that the encroachments are authorized, first by paragraph 7(b) of the Grant of Easements, see paragraph 13 above. I have no difficulty with the requirement that the relocated easement be substantially as convenient to the Benefitted Owners as the area for which the substitution was made. In the first place, the areas involved are small. But more important, the Benefitted Owners have an easement "for recreational uses" over the entire Condominium areas less the areas occupied by the Units themselves (as they may have been expanded into their allowed expansion areas and including in the Units their patios areas and showers). This means, literally and as conceded by Counsel, that an owner from a distant part of Maushop Village could in the exercise of the Recreation Easement set up his or her deck chair, cooler and boom box right outside the window of someone's Unit (as long as he or she wasn't in the Unit's patio area).

31. Happily, according to Counsel, that or similar intrusions have not occurred, and were they to do so, would be dealt with by prohibitory regulation. As a practical matter, the Recreation Easement means primarily that the Benefitted Owners can make their way to the beach through the common areas of Maushop Village, hopefully on the paths that are laid out for the purpose. The idea that a Benefitted Owner could, would, or would even want to, utilize the tiny areas in dispute here, located as they are - for instance a 2' by 4' area now occupied by a trash shed jutting out from the wall of Unit 643 - is preposterous or, in the case of Unit 671, at least incredible. I find that the structures as now standing, especially in light of the Give-Back areas, provide relocated easements substantially as convenient, within the requirements of the Grant of Easements.

32. The relocated easements were finished at NSC's expense to substantially the same standard as that for which substitution was made. The substance of the requirements of paragraph 7(b) (iii) has been met by the Phase III plans on file at the Registry District (the relocated patio areas do not appear on those plans, but that omission is not significant).

33. But, Plaintiffs ask, who has or had the right of relocation? The Grant of Easements places that in the "Burdened Owners", which is defined as the "fee owner of the Condominium Lot which is subject" to the easement. Since Maushop Village was made a condominium, or rather five condominiums, immediately after the registration of the Grant of Easements, the fee ownership of the land in each Condominium, including its Common Elements - and thus the right of relocation - was in the owners of the Units in each Condominium. Until the initial conveyances out of NSC, it owned the entire percentage interest in the land and could effect the relocation. The record does not indicate whether that was the case.

34. If the relocation occurred after a deed or deeds out, the right of relocation was in the Unit Owners, who could act by unanimous consent or, failing that, by the Condominium Trustees of the Condominium in question pursuant to G.L. c. 183A, Section l0 (b) (1). Since, because of my alternative findings and rulings, this action does not turn solely on whether the correct "Burdened Owner" relocated the Recreation Easement, I leave this point, finding that relocation in accordance with Section 7(b) of the Grant of Easements has been made, confident that if ratification by the Unit Owners of Condominium 3b and 3c, or their Condominium Trustees, is necessary and has not been obtained, it will be.

35. NSC also points to its Development Privileges quoted at paragraph 14 above. Those are certainly broad enough to permit NSC to construct the encroachments of which Plaintiffs complain. I find that in making the encroachments NSC was acting in what it genuinely perceived to be the best interests of Maushop Village. In particular, the addition of trash sheds was to provide for the more sightly storage of trash; the enlargement of bedroom areas was to accommodate a Health Department requirement for indoor showers, and the moving of Unit 671 was in accordance with Conservation Commission requirements.

36. It is true, as Plaintiffs assert, that the "Development Privileges" are stated as being (only) an exemption from the restrictions set forth in the "Declaration-Maushop Village", and not a general exemption. However, reading all the documents together, Plaintiffs' contention that action under the Development Privileges cannot affect any of the Common Elements - would negate the Development Privileges. If exercise of rights under the Development Privileges caused a significant and unexpected erosion of Common Elements, Plaintiffs' contentions on this point would bear further analysis, but on the facts we have, I rule that the encroachments of which Plaintiffs complain are authorized by the Development Privileges.

37. I also find that the moving of Unit 671 was authorized by paragraph 8.1 of the Master Deeds (paragraph 17 above). Specifically, I find that the reconstruction of Unit 671 is as a result of Conservation Commission requirements occurring as a result of, and after, significant erosion of the embankment and I find that "other casualty" is broad enough to encompass that situation. There is no evidence that the Condominium Trustees formally consented to the encroachments (see clause [a] of paragraph 8.1 quoted above); were such consent to exist, clause (a) would be independent authorization for the encroachment by Unit 671 and would authorize the encroachment by Unit 643 as well.

38. I do not find in 4.5 (b) of the Grant of Easements, or in paragraph 4.1 of the Master Deeds, independent authority for the establishment of the encroachments. However, those provisions, together with the others mentioned in paragraph 20 above, dosubstantiate NSC's contention that from the beginning - and within the expectation of all concerned, including Plaintiff Enegren - it was clear that there would be changes to the Common Elements, and thus to the Recreation Easement.

39. NSC knew during reconstruction of Units 643 and 671 that it was likely that there would be some shifting of the units from the Phase I Footprints and that some common area would be covered by the addition of the trash shed and the small bedroom area at Unit 643. NSC believed that the condominium documents allowed such flexibility and that it was acting in good faith and in the best interests of the development of the community.

40. No evidence was presented to show how, if at all, Bucci has been injured by the encroachments or how the use of his Recreation Easement has been interfered with. Enegren was unaware that his Recreation Easement had been affected in any way until someone else told him about it. Enegren did not demonstrate that the encroachments interfere with any actual recreational activity or even with his ability to "invigorate, refresh, and revitalize his mind" (his testimony as to the meaning of recreation); or that the value of his Unit was adversely affected by the encroachments. Neither Unit 643 nor 671 is visible from the Units owned by the respective Plaintiffs.

41. I have ruled that the encroachments are authorized under the Condominium documents. If that is not the case, should I order the removal of the encroachments? There is a clear predisposition in the cases to order the removal of encroachments. However, removal is not automatic. Each case depends on its own circumstances, Starkie v. Richmond, 155 Mass. 188 (1892), where the Court stated, at pages 195-196:

It is not every case of a permanent obstruction in the use of an easement that entitles the aggrieved party to a restoration of the former situation. Each case depends on its own circumstances. It is for the court, in the exercise of a sound discretion, to determine in such instances whether a mandatory injunction shall issue. It will not be issued when it appears that it will operate inequitably and oppressively, nor when it appears that there has been unreasonable delay by the party seeking it in the enforcement of his rights, nor when the injury complained of is not serious or substantial, and may be readily compensated in damages, while to restore things as they were before the acts complained of would subject the other party to great inconvenience and loss.

42. I note also that removal is ordered "more cautiously, where the plaintiff's interest in the land is an easement only", Gray v. Howell, 292 Mass. 400 (1935).

43. Mr. Burden of NSC testified that the cost of removing the encroachments at Unit 643 would be about $32,000 and I find that a credible estimate. He testified that Unit 671 could not be returned to its original location because of the Conservation Commission's order to remove it from that location and that a removal order as to that Unit essentially would mean its demolition and a loss of its current fair market value (a figure in excess of $300,000). Perhaps the Commission might relent, but in any event, I find that removing the encroachment as to Unit 671 would entail expense greater than that involved as to Unit 643.

44. I will not order removal. The infringement of Plaintiffs' rights is microscopic in square footage terms and non-existent in terms of practicality (it is non-existent even in square footage terms if the aggregate of the Give-Backs is taken into account). The cost of removal would be substantial. NSC in causing the encroachment was acting in the good faith belief that it had a right to do what it did. A removal order would operate inequitably and oppressively, to no recognizable good end. In light of the discretion permitted in these circumstances, as suggested in the Starkie case, and based on the considerations just mentioned, I will not order removal.

45. It may well be that the insignificance of the encroachments provides grounds in itself to refuse removal, even without considering NSC's costs and belief in its authorization. There are indications in some of the cases that the rule of de minimis is applicable. See for instance, Goldstein v. Beal, 317 Mass. 750 , 758 (1945); Tramonte v. Colarusso, 256 Mass. 299 , 301 (1926). I find that the encroachments are de minimis.

Judgement accordingly.