MISC 148165

May 1, 1991

Worcester, ss.



In this action brought pursuant to M.G.L. c. 185, §l (k), plaintiffs seek to remove Condominium Units 3A and 3B from the Condominium known as Pinecrest Estates Condominium, Sterling, Massachusetts (the "Condominium"). The complaint alleges the following:

1. The Condominium consists of eight (8) units located two (2) each within four (4) duplex buildings. Each building is located on a separate building lot, shown as Lots 1, 3, 4 and 10, on a plan recorded with Worcester District Registry of Deeds.

2. Plaintiff David S. Tamaren ("Tamaren") is the owner of Unit 3A in the Condominium.

3. Plaintiff Citizens Savings Bank, FSB ("Citizens") is the holder of a mortgage on Unit 3A.

4. Defendants Michelle M. Marcotte and Vincent P. Leete are the owners of Unit 4B in the Condominium.

5. Defendant Commonwealth Mortgage Company, Inc. is the holder of a mortgage on Unit 4B.

6. Defendants Christine M. Cantone and John F. Giblin are the owners of Unit 3B in the Condominium on Lot 3.

7. Defendant Citicorp Mortgage, Inc. is the holder of a mortgage on Unit 3B.

8. Defendant Joanne M. Fraser, Trustee of Pinecrest Realty Trust ("Fraser") is the owner of record of Units lA, lB, 4A, l0A and l0B in the Condominium on Lots 1, 4 and 10 respectively.

9. Defendant First Service Bank for Savings is the holder of a mortgage on Lots lA, lB, l0A and l0B (apparently the mortgage does not extend to Unit 4A).

10. The Federal Deposit Insurance Corporation ("FDIC") is now operating First Service Bank for Savings and has assumed its assets and liabilities.

11. Defendant John P. Zelonis, Jr. is holder of a (presumably junior) mortgage on Units lA, lB, 4A, l0A and l0B.

12. Central Mass Land Survey in an attaching creditor as to Units lA, lB, 4A, l0A and l0B.

13. On or about October 15, 1988, the Pinecrest Estates Condominium Trust, Joanne M. Fraser, Trustee, ceased to collect condominium fees from any unit owner in the Condominium and further failed to perform any of the obligations of Pinecrest Estates Condominium Trust, which neglect has continued to date.

14. As a result of such failure, the Hazard and Liability Insurance covering said condominium units lapsed on or about October 15, 1988.

15. As a result of such failure, the common areas of the Condominium have deteriorated.

16. On or about April 6, 1990, Tamaren, on behalf of the condominium association, paid the sum of Four Thousand Two Hundred Fifty and 00/100 ($4,250.00) Dollars to reinstate the insurance on said condominium units.

17. Despite demand by Tamaren upon the other Unit Owners and FDIC for contribution towards the insurance premium, defendants have refused to contribute towards the insurance payment.

18. Despite request by Tamaren upon defendants, FDIC and Giblin to undertake legal action to dissolve the condominium pursuant to M.G.L. c. 183A, §19, they have refused to undertake such action.

19. As there exist no amenities in the Condominium each duplex building can exist as a separate, two (2) Unit Condominium.

20. The existence of such two (2) Unit Condominiums would create no zoning violation in the Town of Sterling.

21. Plaintiff has no adequate remedy at law.

Accordingly, plaintiffs requested the Court to order the following:

a) That Units 3A and 3B of the Condominium be forthwith removed from the condominium regime.

b) That Tamaren and Giblin as owners of Units 3A and 3B respectively execute a new set of condominium documents so as to create a separate condominium for the duplex building located on as Lot 3.

c) That plaintiff Citizens Savings Bank, FSB and defendant Citicorp Mortgage, Inc. assent to the creation of the new condominium on Lot 3 upon the grant of appropriate mortgages to them.

d) That each defendant pay a proportionate share of the Liability Insurance Policy paid by Tamaren.

e) That defendants pay a proportionate share of expenses incurred by Tamaren in bringing this action.

f) That defendants pay Tamaren's expenses of suit and such other damages as this Court deems proper.

Defendant FDIC, in its own capacity and in its capacity as liquidating agent for defendant First Service Bank For Savings, has moved for dismissal under Rule 12 (b) (6), failure to state a claim upon which relief can be granted. The motion was argued by counsel on April 19, 1991. I grant the motion.

Although the motion must address only the face of the complaint, in order to understand plaintiffs' dilemma I mention the fact, brought out at argument, that all eight units in the Condominium were constructed, but catastrophe, in the form of the current slump in the economy, overtook the Condominium before the developer, Pinecrest, was able to sell Units lA, lB, 4A, 10A and l0B. Pinecrest, as owner of those units, either cannot be found or will not respond, and the FDIC has not foreclosed and gives no indication that it will.

Tamaren finds himself as one of three occupants of Units in the Condominium and with only himself and the occupants of the two other Units to bear the costs of the entire Condominium. He seeks judicial intervention to order a severance of his building from the Condominium, so that his, smaller, condominium would be made up of occupied units.

Tamaren's complaint runs afoul of G.L. c. 183A, §19 ("Section 19"), which provides as follows:

§ 19. Removal from provisions of this chapter

(a) Seventy-five per cent of the unit owners, or such greater percentage as is stipulated in the by-laws, may remove all of a condominium or portion thereof from the provisions of this chapter by an instrument to that effect, duly recorded, provided that the holders of all liens upon any of the units affected consent thereto by instruments duly recorded. Upon such removal, the condominium, including all the units, or the portion thereof thus removed shall be owned in common by the unit owners and the organization of unit owners shall be dissolved, unless it is otherwise provided in the removal instrument. The undivided interest in the property owned in common held by each unit owner shall be equal to the percentage of the undivided interest of such owner in the common areas and facilities.

(b) Such removal shall not bar the subsequent resubmission of the land and buildings involved to the provisions of this chapter.

Even taking all allegations of plaintiffs as true and granting plaintiffs the benefit of all inferences, it appears to a certainty that plaintiffs are entitled to no relief under any state of facts which could be proved in support of the claim. Stop & Shop, Cos., Inc. v. Fisher, 387 Mass. 889 (1983).

There was discussion at the hearing as to provisions of the Condominium documents. I have not considered them, as they are outside the pleadings. However, Section 19 makes it clear that even if there were a removal percentage less than 75% in the Condominium documents, it would be unenforceable; it is a greater percentage that is allowed.

Chapter 183A has provisions dealing with problems in enforcing payment of contributions and plaintiffs can no doubt on a proper showing have themselves or others appointed as Trustees of the Condominium Association. The statute provides remedies to plaintiffs within the condominium context. Those remedies may be of cold comfort given today's economic realities, but this posture of the facts was always inherent in a decision to invest in the Condominium. That things have turned out badly for plaintiffs is not grounds in and of itself to invoke equity jurisdiction. Certainty (here in the form of Chapter 183A) remains important.

Procedurally, FDIC's position is interesting. It is not a unit owner, having forborne to foreclose. Prior to its becoming an owner, does Section 19 require its consent to a splitting up of the Condominium? Section 19 requires consent from "the holders of all liens upon any of the units affected . . ." Does that mean only the holder of a lien on Units 3A and 3B (the units which plaintiffs seek to remove f rom the Condominium)? Or would any removal of units from the Condominium "affect" FDIC? I suspect that the Condominium documentation or the loan documentation under which FDIC holds gives FDIC a right of consent, but I need not reach that. If FDIC's consent is needed under Section 19, it cannot be forced to give it. If its consent is not needed, it is not properly a defendant. In either case, its motion to dismiss succeeds.

Judgement accordingly.