This is an action for a declaratory judgment and other relief brought pursuant to G.L. c.185, §l (k) and G.L. c.231A, §1. The circumstances of this case involve an unfortunate legal battle among neighbors which never should have reached this point. A great deal of time, money and energy have been expended by everyone involved in this matter. The Court has spent an inordinate amount of time both before and during the trial in settlement negotiations with all counsel present and at times, with certain of the parties present, trying to reach a solution which accommodates as best as possible the diverse interests involved. Regrettably, these negotiations were unsuccessful, in no small part due to the intractability of certain of the participants. The case now proceeds to judgment.
The plaintiffs in this action are the owners of two units in a nine unit condominium in West Chatham, Massachusetts known as the Oyster River Condominium (the condominium). The defendants are the remaining unit owners, the Oyster River Condominium Trust and its trustees. In their complaint, as amended, the plaintiffs seek declaratory, injunctive and compensatory relief against the defendants on the basis that the defendants had expanded their units and modified the common areas surrounding their units without the unanimous consent of the unit owners and thereby violated G.L. c.183A. The plaintiffs seek a declaration that any expansions of the condominium units into the common areas or modifications of the common areas surrounding the units require the unanimous consent of the unit owners. The plaintiffs also ask the court to permanently enjoin the defendants from expanding their units into the common areas and from modifying the common areas surrounding their units without first obtaining the approval of all unit owners as well as to permanently enjoin the defendant, Pamela J. Canham, from advertising her unit, unit 3, as "expandable". The plaintiffs further request that the court enter an order that the defendants be mandatorily enjoined to restore their units to their original condition by removing all expansions and modifications in the common areas and that the court award damages to the plaintiffs for the defendants' trespasses into the common areas and for the plaintiffs' loss of marketability of their units resulting therefrom, including costs, interests and the plaintiffs' reasonable attorney's fees. In addition, the plaintiffs request that the trustees be ordered to enforce the use restrictions pursuant to §8 of the Master Deed. Finally, the plaintiffs ask that the trustees be ordered to pay the plaintiffs' legal fees resulting from the trustees' failure to enforce G.L. c.183A, §§5 (a)-(e) and the provisions of the Master Deed and Trust.
The defendants filed an answer denying that said expansions and modifications are a trespass of the common areas in violation of G.L. c.183A because said expansions and improvements were done with the approval of a majority of the trustees as required by the Master Deed. In their answer, the defendants also asserted the affirmative defenses of estoppel, waiver, laches and the doctrine of unclean hands. The defendants counterclaimed against the plaintiffs, seeking a declaration that the Master Deed and the actions of the trustees and unit owners were all in accordance with law and requesting that they be awarded their costs and legal fees or alternatively, requesting that the court enter a permanent injunction ordering the plaintiffs to remove all additions to their units and to restore the common areas which the plaintiffs have allegedly altered surrounding their units to their original condition. The defendants also ask that the Court order the plaintiffs to pay their pro rata share of the legal fees; which the unit owners voted to incur in an attempt at resolving the conflict over expansions. The plaintiffs denied that they have expanded or altered the common areas surrounding their units and also denied that they are responsible for a portion of the legal fees incurred by the other unit owners.
Twenty-seven days of trial were held at which a stenographer was appointed to record and transcribe the testimony. Sixteen witnesses testified and 148 exhibits, some with multiple parts, were introduced into evidence and are incorporated herein for the purposes of any appeal. A view was taken in the presence of counsel.
While the plaintiffs' were putting in their evidence and before they rested, the plaintiffs' trial counsel moved for permission to withdraw from further representing the plaintiffs. The counsel advised the court that he could not disclose the specific reasons for this unusual request without violating the attorney-client privilege. After hearing, the court allowed the motion upon the filing by each plaintiff of a pro se appearance. The trial then continued with Mr. and Mrs. Maloney and Mr. and Mrs. Strauss appearing pro se.
Mr. Maloney is an attorney admitted to practice in Connecticut but not in Massachusetts. Each of the pro se plaintiffs were given every opportunity to question all witnesses and introduce evidence following their trial counsel's withdrawal.
At the close of the plaintiffs' case, the defendants made an oral motion for "required findings" which the Court now construes as a motion for dismissal pursuant to Mass. R. Civ. P. 4l (b) (2) and which the Court took under advisement. The defendants renewed this motion at the conclusion of all evidence and the motion was again taken under advisement. For reasons set forth in the decision it is denied.
Based on all the evidence, I find the following to be the material facts:
1. Charles Robert (Bob) Chrystie, the sole owner of the 2.669 acres of land and nine units [Note 1] now comprising the condominium (the premises), created the condominium by submitting the premises to the provisions of G.L. c.183A (c. 183A) and by executing a Master Deed dated November 3, 1980 and recorded in the Barnstable County Registry of Deeds at Book 3202, Page 92 [Note 2] in which he proposed to create a condominium to be governed by and subject to the provisions of c. 183A. The language of the Master Deed essentially tracks the language of §8 of c. 183A which sets out the various particulars which must be included in a Master Deed.
2. Certain of the provisions of the Master Deed are at issue in this proceeding and are therefore set forth hereinafter. The last paragraph of section 4 in the Master Deed provides:
Each Unit Owner shall have the right, with the written approval of a majority of the Trustees, to construct additions to his Unit as per section 8.d. herein or to modify his Unit to meet all applicable municipal and state regulations for the use and occupation of said Unit on a year-round basis.
3. Section 5 of the Master Deed sets forth the proportionate undivided interest of each unit in the common areas and facilities. Section 5.d. provides that the common areas and facilities of the condominium also consist of "yards, lawns, gardens, walkways, and the improvements thereon, including walls, bulkheads, railings, steps, lighting fixtures and planters ..." Section 5.e further provides that the common areas and facilities consist of "such additional common area and facilities as may be defined in Chapter 183A."
The last paragraph of section 5 provides:
The common areas and facilities shall be subject to the provisions of the OYSTER RIVER CONDOMINIUM TRUST, hereinafter referred to, and to rules and regulations promulgated pursuant thereto with respect to the use thereof, assignments of certain such facilities to particular Unit owners (as, for example, storage space or parking space).
4. Section 8.d. of the Master Deed provides:
The architectural integrity of the Buildings and the Units shall be preserved without modification, and, to that end, without limiting the generality of the foregoing, no...exterior change, addition, structure, projection, decoration or other feature shall be erected or placed upon or attached to any such Unit or any part thereof...without the written consent of a majority of the Trustees of the OYSTER RIVER CONDOMINIUM TRUST, but this subparagraph (c) shall not restrict the rights of Unit owners to decorate the interiors of their Units as they may desire;
5. Section 8.f. of the Master Deed provides that subject to applicable state or local laws or regulations, nothing contained in the Master Deed shall prohibit a unit owner from enclosing the deck area of the unit or from installing an outdoor shower on the side of the unit, with privacy fence or screen.
6. Section 9 of the Master Deed provides:
This Master Deed may be amended by an instrument in writing (a) signed by the owners of Units entitled to seventy-five (75) percent or more of the undivided interests in the common areas and facilities; (b) signed and acknowledged by a majority of the Trustees of the OYSTER RIVER CONDOMINIUM TRUST; and (c) duly recorded with the Barnstable Registry of Deeds, PROVIDED, HOWEVER, that: ...
C. No instrument of amendment which alters the percentage of the undivided interest to which any Unit is entitled in the common areas and facilities shall be of any force or effect unless the same has been signed by the owners of the all of the Units and said instrument is therein designated as an Amended Master Deed;
7. Section 10 of the Master Deed provides that the organization through which the unit owners will manage and regulate the condominium is the Oyster River Condominium Trust (the trust). The trust was established under a Declaration of Trust dated November 3, 1980 and recorded at Book 3202, Page 103. The three original trustees named in the Declaration of Trust were the defendants Charles Robert Chrystie, Sally Chrystie and Kenneth J. Ritchie. The beneficiaries of the trust are the unit owners who have a beneficial interest in the trust in proportion to their percentage undivided interest in the common areas and facilities set forth in the Master Deed.
8. Section 4.2.a. of the Declaration of Trust provides that whenever any of the units in the condominium is owned by more than one person, the several owners of each unit shall determine and designate which of the owners is to be authorized and entitled to cast votes, execute instruments and otherwise exercise the rights appertaining to the unit. Section 4.2.b. provides that the owners shall notify the trustees of the designation by a notice in writing signed by all of the record owners of the unit. This designation will be effective upon its receipt by the trustees. In the absence of a notice of designation, the trustees may designate one owner for such purposes.
9. Section 7.1 of the Declaration of Trust provides that the trustees may at any time amend the trust with the consent in writing of unit owners entitled to no less that seventy-five percent of the beneficial interest in the trust, together with the written consent of the first mortgagees of the units of the consenting unit owners, provided that:
[N]o such amendment ...(a) according to the purport of which the percentage of the beneficial interest hereunder of any Unit Owner would be altered or in any manner to or any extent whatsoever modified or affected, so as to be different from the percentage of the individual interest of such Unit Owner in the common areas and facilities as set forth in the Master Deed or (b) which would render this trust contrary to or inconsistent with any requirements or provisions of said Chapter 183A, shall be valid or effective.
The amendment shall be signed, sealed and acknowledged by two trustees, shall set forth in full the amendment and recite the consent of the unit owners and mortgagees required to consent thereto. The Declaration of Trust was amended on January 20, 1981 and recorded at Book 3238, Page 17. This amendment is not at issue in this proceeding. [Note 3]
10. C. 183A, §1 provides that the common areas and facilities include parking areas except as otherwise provided or stipulated in the master deed.
11. C. 183A, §5 (a) provides:
Each unit owner shall be entitled to an undivided interest in the common areas and facilities in the percentage set forth in the master deed. Such percentage shall be in the approximate relation that the fair value of the unit on the date of the master deed bears to the then aggregate fair value of all the units.
12. C. 183A, §5 (b) provides:
the percentage of the undivided interest of each unit owner in the common areas and facilities as expressed in the master deed shall not be altered without the consent of all unit owners whose percentage of the undivided interest is affected, expressed in an amended master deed duly recorded.
13. C. 183A, §10 (b) (4) provides that the organization of unit owners has the power "to conduct litigation...involving the common areas and facilities..."
14. The plaintiffs, William I. Strauss and Irene E. Strauss, are the owners as tenants by the entirety of Unit 4 (also known as Deck House) of the condominium. The Strausses purchased Unit 4 from Mary B. Boggess (who had purchased the unit from Chrystie) by deed dated October 7, 1982 and recorded at Book 3578, Page 171. Prior to purchasing Unit 4 from Boggess in 1982, the Strausses had rented cottages on the premises from Chrystie for at least eight or nine years.
15. The plaintiffs, Richard E. Maloney and Lorraine K. Maloney, are the owners as tenants by the entirety of Unit 7 (also known as Chimney House) of the condominium. The Maloneys purchased Unit 7 from Chrystie by deed dated February 6, 1981 and recorded at Book 3238, Page 308.
16. The defendant, Charles Robert Chrystie (Chrystie), the creator of the condominium, is a trustee of the trust and is the owner of Unit 8 (also known as the Main House) of the condominium. After creating the condominium, Chrystie conveyed Unit 8 to himself by deed dated February 6, 1981 and recorded at Book 3238, Page 19. Unit 8 consists of two living units--the unit in which the Chrysties live and the Port apartment, which Chrystie rents. The defendant, Sally Chrystie, is a former trustee of the trust and the wife of Charles Robert Chrystie.
17. The defendants, Venkatesh Narayanamurti and Jayalakshmi K. Narayanamurti, are the owners as tenants by the entirety of Unit 1 (also known as High Head) of the condominium. The Narayanamurtis purchased Unit 1 from Chrystie by deed dated April 17, 1981 and recorded at Book 3272, Page 50.
18. The defendants, Stephen J. Burlingame and Suzanne B. Burlingame, are the owners as tenants by the entirety of Unit 2 (also known as White House) of the condominium. The Burlingames purchased Unit 2 from Chrystie by deed dated February 6, 1981 and recorded at Book 3238, Page 24.
19. The defendant, Pamela J. Canham, is the owner of Unit 3 (also known as Wayside) of the condominium. Canham purchased Unit 3 from Chrystie by deed dated March 27, 1981 and recorded at Book 3259, Page 303.
20. The defendants, Kevin P. O'Connell and Susan M. O'Connell, are the owners as tenants by the entirety of Unit 5 (now known as Boat House, formerly known as Long Grey) of the condominium. The O'Connells purchased Unit 5 from Ruth Clarke Nelson (who had purchased the unit from Chrystie) by deed dated July 29, 1983 and recorded at Book 3813, Page 305.
21. The defendants, Kenneth J. Ritchie and Jeanne M. Ritchie, are the owners as tenants by the entirety of Unit 6 (also known as Bluff House) of the condominium. The Ritchies purchased Unit 6 from Chrystie by deed dated February 6, 1981 and recorded at Book 3238, Page 300. Kenneth Ritchie is also a trustee of the trust.
22. The defendants, Thomas H. Mast and Susan B. Mast, are the owners as tenants in common of Unit 9 (also known as Beach House) of the condominium. The Masts purchased Unit 9 from Chrystie by deed dated June 25, 1981 and recorded at Book 3313, Page 7.
23. Each of the units was conveyed with the exclusive right to use the parking area designated for said unit on a plan of land entitled "Oyster River Condominium, Plan of Property in Chatham, Mass. as Surveyed and Prepared for Charles R. Chrystie," prepared by Schoefield Brothers, Inc. Registered Professional Engineers and Land Surveyors and dated August 25, 1980 (hereinafter referred to as the site plan).
24. Chrystie first acquired the premises which constitute the condominium, as well as the boat yard adjacent to the condominium, in 1951. Prior to creating the condominium, Chrystie rented out the nine units located on the premises. Three of these units were suitable for year-round use and six were seasonal units.
Sometime in 1980, Chrystie approached Richard Rochette, a real estate agent and owner of Rochette Realty in Chatham, with regard to selling the cottages located on the premises as condominiums. Rochette and Chrystie discussed establishing prices for and marketing the units. Rochette then created a marketing plan for the sale of the units. Chrystie told Rochette he wanted to make provisions for expansions a part of the condominium project in order to enhance the marketability of the units. Accordingly, Rochette told his brokers to tell all prospective purchasers that the units could be expanded.
25. In the spring of 1980, Chrystie approached Attorney John Farrell and told Farrell that he wanted to create a condominium on the premises. Chrystie asked Farrell to prepare the Master Deed and other condominium documents. Chrystie told Farrell that he intended to facilitate the conversion of the units from seasonal to year-round occupancy and to allow smaller units to expand with the approval of a majority of the trustees. Farrell drafted the condominium documents with the understanding that c. 183A allowed for the inclusion of expansion provisions in a Master Deed. Farrell felt that the documents he drafted complied with c. 183A and satisfied Chrystie's intent to allow for expansions.
26. Kenneth Ritchie first visited the premises in September or October of 1980. He then contacted Rochette Realty and went to look at the units with Arthur A. Batts, Jr. (Batts), a real estate agent with Rochette Realty. Batts told Ritchie that the condominium documents, when completed, would provide a right to expand the units of the condominium.
27. At some point in the fall of 1980, although it is unclear from the record exactly when, Chrystie asked Ritchie to be a trustee because he (Ritchie) was going to purchase one of the units. Ritchie agreed to become a trustee but did not remember when he signed the trust document as trustee.
28. Attorney Jordan Krasnow represented the Ritchies in their purchase of Unit 6. Ritchie told Krasnow that he was only interested in purchasing the unit if he would be able to expand it. Krasnow reviewed the condominium documents, negotiated the terms of the purchase and sale agreement and reviewed the closing documents. After reviewing the condominium documents and the purchase and sale agreement, Krasnow sent a letter dated December 9, 1980 to Batts, a copy of which he sent to Ritchie, in which Krasnow stated that he did not believe that section 8.d. of the Master Deed was broad enough to allow for sizable expansions to the units and that any addition would encroach upon the common areas of the condominium. Krasnow therefore suggested that a provision be added to the purchase and sale agreement that, prior to the delivery of the deed, Chrystie would amend the Master Deed to authorize the Ritchies to expand their unit by the construction of an addition of a specified size.
Such a provision did not become a part of the final purchase and sale agreement for Unit 6 because Chrystie believed that the Master Deed allowed for the expansions of units and that therefore, no amendment to the Master Deed was necessary. In order to ensure that the Ritchies could expand their unit, Krasnow felt that the most reasonable alternative to amending the Master Deed was to get the trustees' approval for expansion. An additional provision was then added to the Ritchies' purchase and sale agreement which provided for the written approval by the trustees of a sketch of a proposed enlargement of the Ritchies' unit. The sketch was attached to the purchase and sale agreement and showed an addition to Unit 6 of approximately 610 square feet. Ritchie thought that this sketch was an expression of his general intent to expand and that the plans would have to be 'firmed up' at a later date by working with an architect and engineer. He did not think that the final plans would require any further approval.
29. The Ritchies signed the modified purchase and sale agreement on December 23, 1980 and closed on Unit 6 on February 6, 1981. Attorney Charlotte Ventola (Ventola) represented the Ritchies at the closing. Ritchie did not discuss the issue of expansion rights with Ventola. It was at the closing that Ritchie first saw a certificate of approval signed by the Chrysties as trustees whereby the Chrysties approved a sketch for an addition to Unit 6. No sketch was attached to the certificate of approval when it was recorded on February 9, 1981.
30. The Maloneys and Burlingames also closed on their units on February 6, 1981 and Ventola represented them as well. Ventola became involved with representing certain purchasers of units in the condominium after Rochette called her and asked if she would be willing to do a title examination for the prospective purchasers of the condominium units. [Note 4] Ventola then examined the title to the premises, furnished an opinion as to the title, reviewed the condominium documents and handled the recording of the deeds and mortgages at the Registry.
Prior to or at the closings, Ventola furnished the prospective purchasers whom she represented with a report of title to which was attached a summary she had prepared of the provisions of the Master Deed. Ventola indicated in this summary that additions or modifications of the units could be made with the approval of the trustees. Ventola also stated that the Master Deed conformed to c.183A. In arriving at this opinion, Ventola had checked the provisions of the Master Deed against c.183A and had found nothing in c.183A which prevented the Master Deed from containing a provision allowing a majority of the trustees to approve expansions.
31. The Maloneys purchased Unit 7 as an investment, intending the rent the unit. They did not plan to expand the unit. Prior to their purchase, Mr. Maloney had no conversation with Ventola or anyone else about the expandability of the unit. Maloney did not receive or read the Master Deed or Declaration of Trust until 1983. When he and his wife purchased Unit 7, Maloney relied on Ventola's advice that the condominium was legal. Maloney received Ventola's summary of the provisions of the Master Deed prior to closing on his unit on February 6 1981 and he reviewed the document when he received it.
32. Prior to her purchase of Unit 3 in March of 1981, Canham toured the condominium with Rochette, who told her that the units were being offered with "expansion possibilities." The form for the purchase and sale agreement for Unit 3 did not state that the units could be expanded. Therefore, Canham requested that a provision be added to the purchase and sale agreement stating that the trustees would not unreasonably withhold approval for expansion. Canham purchased her unit as an investment with the purpose of renting it and, if she could afford to do so, possibly expanding it and selling it.
33. The Narayanamurtis purchased Unit 1 in April of 1981. Prior to this purchase, they had rented cottages from Chrystie for six or seven summers. When Narayanamurti learned that the cottages were for sale as condominiums, he contacted Rochette Realty. Jean Miller, a real estate broker with Rochette Realty, indicated to Narayanamurti that the units were expandable. Narayanamurti retained Ventola some time in December of 1980 or January of 1981 to represent him and his wife in their purchase of Unit 1. Narayanamurti asked Ventola to make the right to expand the unit a condition of the sale. A provision was added to the Narayanamurtis' purchase and sale agreement that the agreement was conditioned upon written approval by the trustees for enlarging Unit 1 as shown on either of two plans. In addition, Narayanamurti obtained a certificate of approval dated April 17, 1981 and signed by the Chrysties approving the proposed alteration of Unit 1 shown on two attached plans.
34. Prior to the conversion of the cottages into condominium units, Chrystie had installed a new septic system which serviced Unit 9. The Masts purchased Unit 9 on June 25, 1981. The purchase and sale agreement for Unit 9 provided that the Masts' purchase of Unit 9 was conditioned upon receiving written approval by the trustees for enlarging the unit substantially as shown on a sketch attached to the purchase and sale agreement. The Masts received a certificate of approval, dated June 25, 1981, signed by the Chrysties approving a proposed alteration for Unit 9. Although it is somewhat unclear from the record, it does not appear that a sketch of the proposed alteration was recorded with the certificate of approval. Prior to obtaining the certificate of approval from the Chrysties, the Masts submitted numerous plans to the Chrysties which did not meet with approval for various reasons. The Masts started with what Mast called a very ambitious plan and ended up with a fairly modest one in terms of the expansion which was approved. Mast believed, although he was not certain, that the certificate of approval for the proposed expansion of Unit 9 was for the fairly modest expansion. Because the Masts had made trustee approval a condition of his purchase of Unit 9 and they also obtained a certificate of approval when they purchased their unit, it is reasonable to infer that when the Masts expanded their unit,they believed they had the necessary approval and I so find.
35. At the owners meeting on August 9, 1981, Sally Chrystie attempted to resign as a trustee. However, section 3.3 of the Declaration of Trust provides that a trustee may resign by an "instrument in writing, signed and acknowledged in the manner required in Massachusetts for the acknowledgement of deeds and such resignation shall take effect upon the recording of such instrument with said Registry of Deeds." An instrument signed and acknowledged by Sally Chrystie was not recorded until October 30, 1984. Therefore, Sally Chrystie's purported resignation on August 9, 1981 was ineffective and she remained a trustee until her resignation was recorded on October 30, 1984. Furthermore, section 3.1 of the Declaration of Trust provides that a vacancy in the office of trustee may be filled by an instrument in writing designating the person to be appointed as a trustee and signed by both the owners entitled to at least 51 percent of the beneficial interest in the trust and by the person appointed to be a trustee. No such instrument was ever prepared. So even if Sally Chrystie's resignation had been effective, Maloney's appointment as trustee was not. Accordingly, the owners' vote at the August 9, 1981 meeting to elect Maloney as a trustee in place of Sally Chrystie was ineffective and Maloney never became a trustee. Similarly, a vote at the October 6, 1984 owners meeting attempting to replace Maloney as trustee with Burlingame was ineffective because Sally Chrystie was still a trustee as of that date and no instrument of appointment was ever prepared. Therefore, I find that from November 3, 1980 until October 30, 1984, the trustees of the trust were the original trustees who had signed the Declaration of Trust--Chrystie, Sally Chrystie and Ritchie. From October 30, 1984 when Sally Chrystie's resignation was recorded until the time of trial, there were only two trustees--Chrystie and Ritchie.
36. When the Narayanamurtis purchased their unit in April of 1981, the area between the Narayanamurtis' unit and the Port apartment was a sand and dirt parking lot (shown on the site plan as "P-1") which was used by the renters of the Narayanamurtis' unit and the Port apartment. Because the parking lot and driveway did not drain properly, Narayanamurti and Chrystie hired a contractor to renovate the parking lot and driveway area. The contractor put a lawn in the parking lot area, built a bank several feet high at the northerly end of this lawn and created a new parking lot northerly of the original parking lot. The resulting new parking lot is used by the renters of the Narayanamurtis' unit and the Port apartment. The contractor also built railroad tie steps leading from the new parking lot down to the lawn. This landscaping was done in the common areas. The result of this landscaping appears, from photographs which are exhibits in this case, to be a much more attractive area than prior to the improvements.
Most of these improvements were in the common area. After the improvements were made, Narayanamurti still considered the lawn and surrounding landscaped area to be part of the common area and he claimed no unique rights with respect to these areas. Narayanamurti advised his tenants that this area was part of the common area which other unit owners were free to use. Narayanamurti has observed other unit owners and renters using this lawn area.
37. Some time during 1981, the Maloneys spread crushed stone in the common area adjacent to the outdoor shower located on the easterly side of the unit. This was done without trustee approval or unanimous owner approval.
38. The Masts were the first unit owners to expand their unit, which they did sometime in early 1982. [Note 5] The expansion to the Masts' unit increased the area of the first floor of the unit by approximately 120 square feet and also added a second floor to the unit. The Masts expanded their unit into the common area. Prior to or after their expansion, the Masts did not obtain the consent of all of the unit owners.
39. The Burlingames expanded their unit in early 1983. Prior to expansion, the Burlingames' unit consisted of the original cottage which was in existence when Chrystie purchased the property in 1951, plus a one story addition which had been built by Chrystie prior to the conversion of the premises into the condominium. In order to expand their unit, the Burlingames tore down the old addition and built a new one, the footprint of which was approximately 200 square feet larger than the original addition and which also had a second floor. In addition, the Burlingames increased the size of their deck by approximately 216 square feet. That portion of the expansion which was not within the footprint of the original unit was in the common area. Finally, the Burlingames installed a new septic system within the common area between their unit and the Maloneys' unit in the same general area as the original cesspool had been located.
At the annual owners meeting in August of 1982, Burlingame told the unit owners, with the exception of the Narayanamurtis and Mary Boggess [Note 6] who were not at the meeting, of his plans for expanding his unit. No one objected to the idea of the Burlingames expanding their unit and accordingly, Burlingame believed that he had the owners' approval to expand his unit. Also that summer, the Maloneys encouraged the Burlingames to expand their unit. In February of 1983, Burlingame sent Maloney a sketch of the proposed expansion. Maloney then sent a note to Burlingame wishing his luck with his expansion. Maloney did not object to the expansion. Early in the summer of 1983, after the Burlingames' expansion was completed, neither the Maloneys nor the Strausses raised any objections to anyone about the Burlingames' expansion. The Burlingames did not obtain the consent of all of the unit owners for their expansion.
40. Neither Burlingame nor his wife have ever parked in the space designated as "P-2" on the site plan as being for their unit. As of the time of trial, Burlingame parked in the area designated on the site plan as the "Dirt Parking Area." Also shown on the site plan is a "Dirt Drive" which leads from the dirt parking area to a smaller parking area between the Burlingames' unit and the Ritchies' unit and which is designated on the site plan as "P-5", "P-6", "P-7" and "P-9" (hereinafter referred to as the small parking area). As of the time of trial, Mrs. Burlingame parked her car in a space northeasterly of the Burlingames' unit on or near the dirt drive. The area where Mrs. Burlingame parks was cleared by the trustees sometime after an owners meeting in August of 1982 where the problem of traffic congestion in the small parking area had been discussed. Accordingly, I find that the Burlingames did not create the parking space where Mrs. Burlingame parks her car.
41. On May 4, 1983, Kevin O'Connell entered into an offer to purchase Unit 5 from Ruth Nelson, who had purchased the unit from Chrystie. O'Connell conditioned his purchase of Unit 5 on obtaining "written approval from Oyster River Condominium Assoc. of expansion plans." When O'Connell signed the offer to purchase Unit 5, he intended to expand the unit. After O'Connell signed the offer to purchase, he sought out Chrystie, Ritchie and Maloney in order to get their approval of his expansion plans. By document dated May 20, 1983, Chrystie, Ritchie and Maloney [Note 7] approved the plans for the expansion of O'Connell's unit.
42. Sometime between May 20 and June 3, 1983, O'Connell consulted an attorney, William A. Doherty, for the purpose of reviewing the Master Deed and Declaration of Trust. Doherty noted in a letter to O'Connell, dated June 3, 1983, that any construction outside the perimeters of the existing unit would be owned in common by O'Connell and the other unit owners. Doherty also opined that if O'Connell removed the existing unit and replaced it with a new one, O'Connell would only own that part of the new unit which exactly complied with the dimensions of the existing unit shown on the site plan. He stated that this created "obvious problems" and suggested that amendments to the condominium documents and plans be prepared in order to resolve the problem. Doherty also stated that "no percentage of ownership interest can be changed without approval of all unit owners and their first mortgagees. Thus, if because of your addition, you wish a larger percentage of ownership interest, this change would have to be approved by all unit owners and their first mortgagees." Doherty did not specifically advise O'Connell in this letter that any addition or expansion would need the approval of all unit owners nor did he advise O'Connell that expansions were illegal without the unit owners' unanimous consent. Accordingly, O'Connell believed that he could expand his unit, but that the condominium documents would have to be amended to reflect the changes made to his unit.
43. Attorney Ventola represented the O'Connells when they closed on Unit 5 on July 29, 1983. At the closing, O'Connell received from Ventola a report of title in which she stated
As we discussed, any changes you will make will have to be approved and provided for by the trust. The changes you proposed are substantial and I refer you to Mr. Doherty's letter for the full impact of these matters. They will require master deed and trust revisions and consent.
44. In July of 1983, Strauss hired a contractor, Earl Ruddock, to expand the deck on his unit. When Ruddock told Strauss that he needed trustee approval for the expansion, Strauss told Ruddock to get the necessary approval. In order to do so, Ruddock submitted a plan for the deck expansion which was approved by Chrystie, Ritchie and Maloney on July 29, 1989. The Strausses did not get the approval of all of the unit owners before expanding their deck.
Soon thereafter, Ruddock began construction of the deck. Also shortly after July 29, 1983, Strauss for the first time read the Master Deed and Declaration of Trust. In these documents he saw references to c.183A and because he did not know what c.183A "meant'', he consulted his attorney, Robert McGee. McGee discussed c.183A with Strauss and told Strauss that there might be a problem with the way expansions were being handled in the condominium. After meeting with McGee, Strauss called Ruddock to tell him to stop construction of the deck. Because Ruddock informed Strauss that the deck was nearly complete, Strauss told him to finish the construction.
The expanded deck on the Strausses' unit is approximately 180 square feet larger than the original deck. This portion of the deck is supported by posts which were installed, and as of the time of trial remained, in the common area.
45. At some point after his purchase of Unit 4, Strauss made some changes to his driveway. [Note 8] Strauss had some grading done on the driveway, lined the drive with railroad ties and put "pea stone" on the driveway. Strauss also had some landscaping done on the common area surrounding his unit. Before he made the changes to his driveway and landscaped the common area around his unit, Strauss did not obtain the written consent of the trustees nor of all the unit owners.
46. At the owners meeting on August 14, 1983, O'Connell informed those present of Doherty's interpretation of the Master Deed. Burlingame suggested that O'Connell have Doherty prepare suggestions as to what should be changed in the Master Deed and then send the proposition to all of the unit owners to vote on the changes. O'Connell agreed to do so as soon as possible. At the same meeting, the plan for the Narayanamurtis' expansion was reviewed. No one objected to the Narayanamurtis expanding their unit. The only concern raised about the Narayanamurtis' expansion was by Strauss, who was concerned about a two foot extension of the Narayanamurtis' deck. The Narayanamurtis' plans were approved at the meeting by Chrystie and Ritchie as trustees. The Maloneys did not attend this meeting.
47. Shortly after the August 14, 1983 meeting, O'Connell consulted attorney John S. Davis to get a second interpretation of the condominium documents and a second opinion as to the ability of the owners to expand their units. Davis advised O'Connell in a letter dated August 19, 1983 that in his opinion "there are sufficient provisions within the Master Deed which would allow a unit owner to make additions and improvements to his or her unit, subject to the approval of a majority of the Trustees of the Condominium Trust." Davis also stated that it was his further conclusion "that the existing additions and improvements made to various condominium units by Unit Owners since the creation of the Condominium are in violation of Chapter 183A, thereby requiring that the Master Deed be amended, as hereinafter set forth, in order to correct these present statutory violations." Davis then set forth several changes he felt would have to be made to the Master Deed to reflect the additions and expansions. Davis also opined that the percentage interests in the common areas of the condominium were frozen as of the date of the recording of the Master Deed and that these percentages could only be changed with the consent of all unit owners. Finally, Davis told O'Connell that he had contacted two title insurance companies. Both companies had informed Davis that without making the suggested amendments to the Master Deed, they would consider the condominium in violation of c.183A and would not issue title insurance.
After receiving Davis' letter, O'Connell did not understand Davis' opinion that expansions were in violation of c.183A to mean that the owners could not expand. Rather, he thought it just meant that the condominium documents had to be amended to reflect changes to the units. Nor did O'Connell think that unanimous owner approval was a prerequisite to expansion. Because Davis had stated that the percentage interests in the common areas were frozen as of the date of the recording of the Master Deed, O'Connell did not think that the percentage interest changed automatically upon expansion. He believed that unanimous owner approval was only necessary if he wished to change his percentage interest in the common areas after he expanded.
48. After receiving Davis' opinion, O'Connell sent a letter to Chrystie, Ritchie and Maloney, enclosing a copy of Davis' opinion. O'Connell suggested that he meet with the trustees to decide which of the issues raised by Davis' opinion were pertinent and should be discussed with the other owners.
49. In late August or early September, shortly after receiving this letter from O'Connell, Maloney called a meeting to discuss the letter from O'Connell and Davis' opinion regarding expansions. Maloney, Strauss, Ritchie, O'Connell, Burlingame and Chrystie were present at this meeting and they discussed the issue of expansions and the attorneys' opinions which had been received on that issue. Maloney stated at this meeting that he felt that expansions were in violation of c.183A and that it was illegal to expand. Strauss and Maloney suggested hiring an attorney in order to get a full written opinion on the issues involved. Burlingame stated that he would not pay for an attorney. Ritchie then showed Strauss and Maloney the certificate of approval which he had obtained when he purchased Unit 6 and stated that he already had approval for his expansion and that the opinion of his attorneys was that he could expand his unit. This was the first Maloney or Strauss had heard of any unit owners obtaining expansion approval when they purchased their unit. Strauss then asked Chrystie how many other "side deals" he (Chrystie) had made. Shortly thereafter, the meeting broke up.
50. By September 28, 1983, O'Connell had decided that rather than expand his existing unit, he would remove the existing unit and build an entirely new one because his contractor had informed him that it would be less expensive to build a new unit than it would be to renovate and expand the old one.
51. A special owners meeting was held on October 8, 1983 at which all owners except Canham, Mrs. O'Connell, Mrs. Maloney and Mrs. Strauss were present. The purpose of the meeting was to try to resolve the various interpretations of the Master Deed and Trust concerning the right to expand. At the beginning of the meeting, O'Connell presented the plans for his new unit and the Narayanamurtis presented the plans for their new septic system. Strauss objected to the proposed location of the new septic tank for the Narayanamurtis' unit and to the removal of trees between his and the Narayanamurtis' unit. Narayanamurti agreed to meet with his engineer to resolve the problem. All those present at the meeting, except Maloney and Strauss, voted to give approval to O'Connell and Narayanamurti to go forward with their expansions. The minutes of the meeting, which are an exhibit in this case, do not indicate whether Strauss and Maloney voted on this issue, and if they did, how they voted.
At this meeting, Maloney and Strauss told the other owners that certain portions of the Master Deed did not comply with c.183A and that this should be corrected. They also stated that they did not believe that a majority of the trustees had the power to approve expansions but that 100 percent approval of the unit owners was required under c.183A. In addition, Strauss stated that he felt that there should be some sort of compensation, either monetary or in kind, for the "taking" of common land by new construction.
Maloney left sometime before the meeting ended. Towards the end of the meeting, it was voted that Burlingame contact the Massachusetts Bar Association to get the names of attorneys who specialized in condominium law so that the owners could choose an attorney to resolve the problems surrounding expansions and amendments to the Master Deed. The meeting was then adjourned until the following day. None of the unit owners present at the meeting, including Maloney and Strauss, objected to the Narayanamurtis' or the O'Connells' plans for expansion, with the exception of Strauss' objections to the location of the Narayanamurtis' septic system.
52. After the October 8 meeting, O'Connell met with Strauss and Maloney at the Maloneys' unit to talk about his expansion. Maloney told O'Connell that he thought that it was unethical for Ritchie to be acting as both a unit owner and as a trustee in approving the O'Connells' expansion and that Ritchie should remove himself from the discussion of the O'Connells' expansion. Maloney also told O'Connell that he felt that Ritchie was unfairly constraining the O'Connells' expansion. Strauss and Maloney encouraged O'Connell to go back to Ritchie and renegotiate to try and get approval for a larger expansion. Strauss and Maloney also told O'Connell that they would support his going forward with the expansion. Maloney told O'Connell that he would support O'Connell both as an owner and as a trustee. Although their encouragement seemed inconsistent with their opinion that expansions were in violation of c.183A without unanimous owner approval and that trustee approval was not sufficient, O'Connell believed at the end of this meeting with Strauss and Maloney that he had their approval for his expansion.
53. The special owners meeting reconvened on October 9, 1983. All owners who were present the previous day attended this meeting except Maloney. The owners once again agreed that Burlingame would consult an attorney specializing in condominium law to tell them whether expansions violated c.183A and if so, how the Master Deed and Declaration of Trust should be amended to bring the documents into compliance with c.183A. Burlingame was asked to work with Maloney to help amend the documents once the attorney hired had advised the owners as to what, if any, changes needed to be made to the condominium documents. Those present unanimously decided that they wanted the revised documents to include provisions so that each unit would own the land directly below the building both as originally set out and as expanded, as well as the air space above the building; to include an amount of guaranteed ground area that each unit may expand into; to establish "a perimeter for landscaping" and to make the necessary changes so that the documents conformed to the requirements for bank mortgage financing.
54. At no time at either the October 8 or October 9 meeting did any of the unit owners state that construction of additions should cease. From the tone of the meetings on October 8 and 9, it does not appear that any of the owners, including Strauss and Maloney, were against expansions. Rather, it appears that there was a general consensus among the owners, including Strauss and Maloney, that legal advice should be sought regarding the legality of expansions and the drafting of any amendments necessary so that the documents were in compliance with c.183A and so the documents provided for the right to further expansions.
After the meetings on October 8 and 9, O'Connell, Narayanamurti and Ritchie were aware of the view of Strauss and Maloney that expansions without the unanimous approval of the unit owners violated c.183A without amendment to the condominium documents, but believed that the owners had agreed that the documents should be amended to allow for expansions which did not violate c .183A. Neither Strauss nor Maloney told O'Connell, Narayanamurti or Ritchie that they (Strauss and Maloney) would oppose their going ahead with their expansions.
55. On October 10, 1983, Narayanamurti met with his builder, his architect and Strauss in order to address Strauss' concerns about the location of the septic system and the extension of the Narayanamurtis' deck. Narayanamurti agreed to move his septic system from a location southwesterly of Unit 1, between the Narayanamurtis' unit and the Strausses' unit, to a location northerly of Unit 1. This agreement was subject to the septic system contractor's approval. Narayanamurti also agreed to build a different type of deck in order to placate Strauss because Strauss was concerned about the installation of posts in the common area disturbing the ground underneath. In addition, Narayanamurti agreed not to expand the deck as much as he had originally planned. After Narayanamurti agreed to make the changes Strauss requested, Strauss shook Narayanamurti's hand and said, in substance, "I'm happy. This is great. Now I can sleep at night." Based on this, Narayanamurti believed that he had Strauss' approval of his expansion. Although Strauss believed during this meeting that he had a legal right to stop the Narayanamurtis from expanding, he did not tell Narayanamurti if he (Narayanamurti) went forward with his expansion, he would take action to stop him.
56. After agreeing with Strauss to move the septic system and change the deck, Narayanamurti sent a letter dated October 24, 1983 to Strauss, with a copy of the revised plans for the septic system, confirming what they had agreed to on October 10. Narayanamurti asked Strauss to let him know if he had any comments about the plans. Narayanamurti received no response from Strauss to that letter.
57. Narayanamurti did not have any private conversations with Maloney about his expansion. Maloney was not present at the owners meeting in August of 1983 when Chrystie and Ritchie approved Narayanamurti's plans. However, although he knew that the Narayanamurtis were planning to expand as of October 8, 1983, Maloney raised no specific objections to the Narayanamurtis' expansions at the October 8 owners meeting nor did he tell Narayanamurti not to go ahead with his expansion.
58. Between October 9 and October 19 of 1983, O'Connell had further discussions about his expansion with Ritchie. By November 28, 1983, O'Connell and Ritchie had agreed to a modification of O'Connell's expansion plans. The new unit was to be the same size as the expanded unit which had been approved in May of 1983 but would be located approximately ten feet closer to the Oyster River. O'Connell and Ritchie also agreed that if the area between the O'Connells' unit and the Ritchies' unit got damaged during construction of the O'Connell unit, O'Connell would pay for relandscaping the area between the two units. In addition, they agreed that after the Ritchies had expanded, the O'Connells might be able to construct a second smaller expansion.
59. In late November, after reaching an agreement with Ritchie about his expansion, O'Connell obtained the approval of Chrystie and Ritchie as trustees for the revised location of his unit. When he approached Maloney to approve the new plans as trustee, Maloney told O'Connell that he would not approve the new expansion plans as a trustee until the condominium documents were amended but that he still supported O'Connell's plans to expand.
60. O'Connell prepared a form seeking the agreement of all of the unit owners to amend the Master Deed and the Declaration of Trust to 1) allow for the removal of an existing structure as a prelude to building an approved expansion and 2) allow for the rebuilding of an entirely new structure on the same site or on the same site plus a guaranteed expansion area to be agreed upon by the owners.O'Connell sent these forms to the unit owners sometime in the late fall/early winter of 1983. Chrystie, Ritchie, Canham, the O'Connells, the Narayanamurtis, the Burlingames and the Masts all checked "yes" for both removal of the old unit and the rebuilding of a new one. Strauss checked "yes" only for removal. Strauss checked "no" for rebuilding, adding that "(u]ntil the Master Deed is corrected (amended and approved)...I must sign No." Although Strauss checked "no" for rebuilding a new unit, O'Connell did not believe that Strauss was objecting to his going forward with the expansion because Strauss had encouraged him in his expansion plans at the meeting on October 8 with O'Connell, Strauss and Maloney. Rather, O'Connell thought Strauss just would not give his written approval without amendment to the Master Deed.
61. On January 2, 1984, O'Connell sent Maloney a letter and the form which he had sent the other unit owners concerning the removal and rebuilding of the O'Connells' unit. In this letter, O'Connell stated "I know you do not want to officially approve the siting of my reconstruction at this time, but your support on the removal and reconstruction from scratch idea is very much appreciated." On the same day, O'Connell spoke with Maloney by telephone. During this conversation Maloney told O'Connell that he supported O'Connell's expansion plans and that he approved the removal of the old unit but that, as a trustee, he could not sign his approval for rebuilding the unit until the condominium documents were amended. After this conversation with Maloney, O'Connell believed that Maloney still supported his expansion plans and did not have the impression that Maloney opposed O'Connell going forward with the expansion.
62. On January 11, 1984, O'Connell sent Maloney a letter in which he stated:
In reliance on what you have told me and confirming our various conversations (most recently 1/2/84) I am going ahead with the moving of Unit #5-Long Grey from the Oyster River condominium grounds.
I want to thank you for your support in the moving of the building both as a Unit owner and as a Trustee.
As a separate matter, I can understand, and do accept, your decision not to approve any specific expansion plans until the Master Deed/Master Trust are amended to everyones [sic] satisfaction . . .
On the same day, Maloney signed the approval form which O'Connell had sent him. Maloney checked "yes" for removal of the old building but he checked neither "yes" nor "no" for the rebuilding of a new unit. O'Connell had no further discussions with Maloney about his expansion.
63. By document dated January 18, 1984 and recorded at Book 3989, Page 234, the Declaration of Trust and the Master Deed were amended so as to "[a]llow for the removal of an existing structure from the Oyster River Condominium grounds as a prelude to rebuilding an approved expansion." The instrument further provided that "[t]hese amendments apply specifically to the approved expansion plans of Unit #5 Long Grey."
64. By letter dated December 20, 1983, Burlingame asked Maloney to approve the selection of Alan Green as the attorney to assist in the correction of the condominium documents. Maloney told Burlingame had no objection to hiring Green. By letter dated March 21, 1984, Burlingame informed the unit owners that he intended to ask Green to propose language to effectuate the changes in the condominium documents which the owners had agreed at the October 9, 1983 meeting should be made. In response, on April 1, 1984, Strauss wrote to Burlingame asking Burlingame to have Green address certain additional matters. Sometime during early 1984, O'Connell furnished Green with the condominium documents.
65. Some time during 1984, Chrystie built a one foot by thirty foot addition to his deck. He did this without obtaining the approval of either the trustees or the owners.
66. When Maloney and Strauss returned to the Cape in May of 1984, they discovered that the Narayanamurtis had expanded and that the O'Connells had removed their original unit and built a new one. None of the plaintiffs complained to either Narayanamurti or O'Connell that the expansions were illegal.
67. The O'Connells' new unit was a twenty-four foot by thirty-two foot two-story saltbox with a deck and a full basement. The new Unit 5 had approximately 1400 square feet of living space and approximately 475 square feet of deck, which was approximately 1000 square feet of living space and 100 square feet of deck more than the original unit had. A portion of the new unit was outside the footprint of the original unit and on common area. A new septic system for Unit 5 was installed within the common area in a different location than the original cesspool servicing the unit had been. In addition, some landscaping of the common area near the unit was done. Railroad ties were placed along the southwesterly side of the unit to prevent erosion and also around the parking area on the northerly side of the unit. Although this area was not designated on the site plan as the parking area for Unit 5, O'Connell had always parked in this location, even prior to the construction of the new unit. Two cars may be parked in this parking area. During the summer of 1984, none of the owners ever complained to O'Connell about his expansion.
68. Construction on the Narayanamurtis' unit began some time in November of 1983 and was essentially completed by May of 1984. Some additional landscaping was completed in the fall of 1984. The expansion added approximately 1000 square feet of living space, 500 square feet of basement and an enlarged deck to the original unit. The new septic system for the Narayanamurtis' unit was approximately twenty to twenty-five feet northerly of the Narayanamurtis' unit as had been agreed by Narayanamurti and Strauss in October of 1983. The Narayanamurtis also landscaped the common area around their unit. A railroad tie retaining wall, six to eight feet high and about thirty to forty feet, long was built into the slope (which was part of the common area) to the north and west of the unit. The Narayanamurtis also put up a clothesline in the common area to the west of the unit.
69. After returning to the Cape in May of 1984 and seeing the Narayanamurtis' and the O'Connells' expansions, Strauss and Maloney visited Strauss' attorney, Robert McGee, to discuss possible litigation but they did not retain McGee. In early June, Strauss and Maloney retained attorney Ansel Chaplin in order to sue the other unit owners.
70. By letter dated June 21, 1984, Burlingame authorized Green to proceed with a review of the condominium documents and also asked Green to consider the additional matters Strauss had raised in his April 1, 1984 letter to Burlingame.
71. In late June or early July, Chaplin sent letters to Chrystie and Ritchie advising them that he had been retained by Strauss and Maloney and asking them to provide him with certain documents pertaining to the condominium. Neither letter mentioned that Chaplin had been retained to file suit against the other owners. During the course of the summer of 1984, Chaplin presented Strauss and Maloney with the drafts of several complaints but none of the drafts met with their approval. Therefore, suit was not filed by Chaplin during the summer of 1984.
72. By letter dated August 15, 1984, Green advised Burlingame that he had been contacted by Chaplin on behalf of Strauss and Maloney who questioned whether Green was still authorized to proceed on behalf of the unit owners. Accordingly, Green asked Burlingame to confirm that he was still to proceed with his research and report. By letter dated September 17, 1984, Burlingame informed Green that he remained authorized by the condominium association and asked that Green prepare a report on his research by September 24.
73. Some time during 1984, the Ritchies decided to construct an addition to their unit which was different from the expansion depicted in the sketch attached to their purchase and sale agreement which had been approved by Bob and Sally Chrystie as trustees when the Ritchies purchased their unit. On September 2, 1984, Bob Chrystie and Ritchie as trustees approved the modified plans for the Ritchies' proposed expansion.
74. On September 16, 1984, the Ritchies met with the Strausses and Maloney at the Strausses' unit. Although Ritchie did not believe that he needed the Strausses' and Maloney's approval for his expansion because he already had the approval of a majority of the trustees, he wanted to apprise them of the changes he was making to his expansion to ensure that the changes were not objectionable to them. Maloney refused to look at the plans and said that he would not approve them. The Strausses did look at the plans, but Strauss told the Ritchies that they were in violation of c.183A and that he could not approve the plans.
Ritchie told Strauss and Maloney that he still intended to proceed with construction. Maloney told the Ritchies that he and Strauss were going to go to court and obtain a judgment regarding the issue of whether a majority of trustees had the authority to approve expansions. The Strausses and Maloney did not tell the Ritchies that they would seek to enjoin them if the Ritchies began construction of the expansion.
75. Shortly after this meeting, Strauss and Maloney retained a new attorney, Duane Landreth, to file suit against the other owners.
76. By letter dated September 21, 1984, Green furnished Burlingame with his report. In this report, Green opined that "[e]xpansion of units into the common area in such a way as to grant title in the newly defined area to the individual unit owner is not allowed by the language of the master deed . . . ." However, Green was of the opinion that a majority of the trustees could grant exclusive easements in the common areas so as to permit the owners of units to have the exclusive use of any improvement they constructed in the common area adjacent to their unit. Although he had been asked to do so, Green did not suggest any language for amendments to the Master Deed because he did not believe the agreement of the necessary percentage of unit owners could be obtained.
77. On October 2, 1984, Ritchie sent letters to Maloney and to the Strausses confirming the September 19 meeting and stating his intention to proceed with his expansion. In the letter to the Strausses, Ritchie stated "[y]ou did not express any objection to our proposed expansion." In response, on October 10, 1984, Strauss sent a letter to Ritchie in which he stated "[w]e did object to your plannedexpansion since it was the taking of common property. This fact was told to you more than once."
78. The next annual owners meeting was held on October 6, 1984. All owners except Mrs. Narayanamurti, Mrs. O'Connell, Mrs. Strauss and Mrs. Maloney were present. At this meeting, Chrystie reported that the owners had received a bill for $450 from Green for his services in preparing his report. Strauss and Maloney told those present that they had hired their own attorney because they felt too much time had elapsed between the last owners meeting and the time Green was retained. Strauss stated that the owners should be billed according to their percentage interest. Although, Strauss and Maloney agreed it was the right of the others to charge them for their share of the bill, they told the other owners that they did not intend to pay it.
Next, the owners voted to replace Maloney as a trustee with Burlingame. However, as was discussed earlier in this decision, this vote was ineffective to elect Burlingame as a trustee because Sally Chrystie did not resign as a trustee until October 30, 1984. As of October 6, 1984 the three trustees were still Bob Chrystie, Sally Chrystie and Ritchie.
At this meeting, the owners also discussed Green's report and his opinion that a majority of the trustees could grant exclusive easements in the common areas to give owners the exclusive use of the common areas into which they expanded. Maloney then stated that he and Strauss had contacted an attorney and, in one to two weeks, intended to file for a declaratory judgment regarding expansions into the common areas.
Ritchie distributed a proposed amendment to the Master Deed, to be signed by the owners and recorded, which provided as follows:
The trustees by written majority consent may grant to unit owners an exclusive easement of such portion of the land as the trustees deem appropriate for the purpose of allowing such unit owner to erect, place, attach or maintain any addition or other modification to which such trustees consent or have consented pursuent [sic] to this paragraph 8(d) of the master deed in section 5.1 of the Oyster River Condominium Trust.
Burlingame, Canham, Chrystie, Mast, Narayanamurti, O'Connell and Ritchie voted in favor of signing the amendment. Strauss and Maloney voted against signing the amendment. Maloney stated that he thought the proposed amendment was an attempt by the other owners to "derail" the court from making a decision in the upcoming legal action.
79. Within a few weeks after this meeting, all the unit owners except the plaintiffs had signed forms agreeing to amend the Master Deed as set forth above. The owners who signed the forms were entitled to 79.3488 percent of the undivided interest in the common areas and facilities, more than the seventy-five percent interest required under the Master Deed for an amendment to the Master Deed. Chrystie and Ritchie, two of the trustees, also signed and acknowledged the instrument. These documents were recorded as an amendment to the Master Deed on October 30, 1984 and recorded at Book 4299, Page 238.
80. The complaint in this action was filed on October 12, 1984. Although Mrs. Maloney is a plaintiff in this action, Maloney stated that he did not consult his wife before filing suit.
81. Ritchie was served on October 17, 1984. He read the complaint when he was served. At that time, he noted and understood that the plaintiffs asked that the Ritchies be temporarily and permanently enjoined from expanding without first obtaining the assent of all of the unit owners. Ritchie testified that he didn't think that the plaintiffs would enjoin him because he felt he already had 100 percent approval of the unit owners. The Ritchies filed the building permit application for their expansion on October 29, 1984.
82. Some time in November of 1984, prior to receiving a building permit, the Ritchies' contractor began working on the inside of the unit. Chrystie's brother, Roger, who lived near the condominium, called Strauss and told him that the Ritchies were having work done on the inside of their unit. Strauss then called Maloney to tell him what the Ritchies were doing. Because the work was occurring inside the Ritchies' unit, Strauss and Maloney believed that there was nothing they could do to stop the Ritchies and therefore, neither Strauss nor Maloney contacted the Ritchies to find out what was going on or to tell them to cease construction. Neither Strauss nor Maloney thought that this interior construction was a prelude to the expansion of the Ritchies' unit.
83. The Ritchies were issued their building permit on December 3, 1984. On the building permit was the notation "Subject to Land Court Action 114843." Ritchie first saw the building permit with this notation soon after its issuance. When Ritchie discussed this notation with Paul Ayoub, his attorney, Ayoub told Ritchie that he (Ayoub) had been told by either town counsel or the building inspector that Ritchie would be proceeding at own risk with regard to the building permit.
84. After receiving the building permit, the Ritchies proceeded with the construction of their expansion. At the end of January, Maloney received a call from ''Unky" Eldredge, a friend who Maloney had asked to contact him during the winter if Eldredge saw any construction occurring at the condominium. Eldredge told Maloney that there were bulldozers near the Ritchies' unit, digging up land and knocking down trees. Maloney testified that this was the first time that he realized that the Ritchies were going ahead with their expansion. Maloney called Strauss and told him that the Ritchies were starting to excavate the ground near their unit. Strauss and Maloney then instructed their attorney to enjoin the Ritchies from any further construction. When asked at trial if he discussed enjoining the Ritchies with his wife or with Mrs. Strauss, Maloney testified "No. We've left the ladies out of it."
85. On February 1, 1985, the plaintiffs moved for a preliminary injunction against the Ritchies to enjoin them from any further construction their unit. The preliminary injunction was granted the same day.
86. By instrument dated February 8, 1985, Christie, Ritchie and Burlingame as trustees [Note 9] purported to grant the Ritchies an exclusive easement to use that portion of land over which their expansion was to be built. For reasons to be set forth at a later point in this decision, this easement was invalid.
87. On February 12, 1985, the preliminary injunction against the Ritchies was continued until further order of the court.
88. At the time the preliminary injunction was granted, the entire interior of the unit except for the living room had been gutted. In addition, some excavation had been done near the unit, footings had been installed in preparation for the foundation of the expansion and some shingling had been removed. After the injunction had been issued, the Ritchies had the excavations near the unit filled in and the ground regraded. They also redid the interior of the unit and installed a new kitchen, a new bathroom and two new bedrooms. Portions of the exterior of the unit were also reshingled. Ritchie estimated that the total cost of the construction prior to the injunction and the cost of reconstruction after the injunction was approximately $35,000. This figure included $2800 for lost rentals in the summer of 1985. Because the reconstruction of the unit was not finished until early June and the realtor would not show the unit until construction was completed, the Ritchies were unable to rent the house for two weeks in June, two weeks in July and four weeks in September.
89. In 1991, the Maloneys built a four foot by four foot shower stall enclosing the outdoor shower on the easterly side of their unit without the permission of the trustees or of all of the unit owners. This shower stall is in the common area.
The plaintiffs are essentially complaining about four types of expansions by the defendants in the common areas. These are the expansions of the units and/or the decks on the units, the installations of septic systems in the common areas, the landscaping of the common areas near certain units and the creation or enlargement of private parking spaces for certain units. The plaintiffs allege that these expansions and improvements appropriate the common areas which they occupy to the exclusive use of certain owners. The plaintiffs further contend that the expansions were done without the approval of 100 percent of the unit owners and therefore, the expansions are in violation of c.183A and must be removed.
The issues of the landscaping and the parking spaces can be disposed of fairly quickly and accordingly, I address these issues first. Section 5.d. of the Master Deed states that the common areas and facilities consist of "yards, lawns, gardens, walkways, and the improvements thereon, including walls, gardens, walkways, bulkheads, railways, steps...and planters..." Judging from photographs (which are exhibits in this case) taken of the various units before and after the landscaping was done, the landscaping which has been done has made the common areas more attractive. Therefore, I rule that the landscaping done around Chrystie's, [Note 10] the Maloneys', [Note 11] the Narayanamurtis', [Note 12] the O'Connells' [Note 13] and the Strausses' [Note 14] units were improvements to the common areas which became part of the common areas and do not constitute encroachments on the common areas. Furthermore, there is no evidence that any of the owners has been excluded from using these landscaped areas nor does any of the landscaping set off a portion of the common area adjacent to a certain unit in such a way that other unit owners would be deterred from using that common area. [Note 15] Accordingly, I will not order that those portions of the common areas which have been landscaped be restored to their original condition.
Finally, section 5.e. of the Master Deed provides that the common areas and facilities consist of "such additional common areas and facilities as may be defined in c.183A." C.183A, §1 provides that the common areas and facilities include parking areas, except as otherwise provided or stipulated in the Master Deed. Although the Master Deed does not specifically include parking areas in its definition of the common areas and facilities, the last paragraph of section 5 refers to parking areas as part of the common areas and facilities which are subject to the provisions of the Declaration of Trust and to rules and regulation promulgated pursuant to the Declaration af Trust. Therefore, I rule that the parking areas are part of the common areas and facilities of the condominium. [Note 16] Because the parking areas are part of the common areas and facilities, the unit owners have no exclusive rights to use either the parking spaces designated on the site plan or those parking spaces which any of the unit owners are currently using. Moreover, because the parking spaces are part of the common areas and facilities, I will not order that any parking spaces which have been modified or any new spaces which have been created be restored to their original condition.
The next issue to be determined is whether expansions of the units and decks (hereinafter referred to as the expansions) require the unanimous consent of the unit owners or whether the approval by a majority of the trustees is sufficient to authorize expansions into the common areas. C.183A, §5 (a) provides that each unit owner is entitled to an undivided interest in the common areas and facilities in a percentage which is "in the approximate relation that the fair value of the units on the date of the Master Deed bears to the then aggregate fair value of all the units." C.183, §5(b) states that such percentage in the common areas and facilities ''shall not be altered without the consent of all unit owners whose percentage of, the undivided interest is affected, expressed in an amended master deed duly recorded."
The plaintiffs argue that any unit expansion increases the unit's value as well as the aggregate value of the condominium and therefore, alters the percentage of ownership interest in the common areas and facilities. Accordingly, expansions done without unanimous approval violate c.183A. The defendants, on the other hand, contend that because neither the trustees nor any of the owners who have expanded their units have attempted to amend the Master Deed to alter the percentage interest of a unit owner in the common areas and facilities, 100 percent owner approval was not required in order for the unit owners to expand into the common areas. In other words, the defendants argue that without amendment to the Master Deed, expansions do not change the percentage interest of the unit owners in the common areas and expansions.
There appears to be no authority in this Commonwealth on the question of whether expansions into the common areas of a condominium require the unanimous approval of the unit owners. However, a case recently decided by the Supreme Judicial Court provides some guidance. In Kaplan v. Boudreaux, 410 Mass. 435 (1991), the trustees in a condominium trust proposed, and then executed, an amendment to the by-laws of the condominium trust which was signed by unit owners entitled to 77.38 percent of the voting interest of the trust. The amendment assigned a walkway which was part of the common area "for the exclusive use of Unit #11." [Note 17] Id. at 437. The court found that by this amendment, the owners of Unit 11 acquired an exclusive right to use the walkway and the other unit owners lost the right to use this area. The Court then stated "[t]he grant of exclusive use to one unit owner of a common area is sufficient to change the relative interest of the unit owners in that common area." Id. at 443. The master deed, the condominium trust instrument and c.183, § 5 all required the unanimous consent of the owners for any change in the percentage interest in the common areas. Id. Accordingly, because the by-law was adopted without the unanimous consent of the unit owners, the Court held that the by-law violated c.183A, the master deed and the trust and was therefore invalid. Id. at 443-444.
In this proceeding, the actions complained of are not amendments assigning common areas to the exclusive use of certain unit owners. Rather, the plaintiffs complain about expansions into the common areas. The effect, however, of either type of action is the same. As with the assignment of common areas to the exclusive use of one unit owner by an amendment to the Master Deed, the expansion of units into the common areas operates to give those unit owners the exclusive use of that portion of the common areas which the expansions occupy and to prevent any other unit owner from being able to use that area. Accordingly, I rule that expansions into the common areas cause a de facto alteration of the percentage of the undivided interest which each owner has in the common areas, regardless of whether the owners who have expanded seek to amend the Master Deed to change their percentage interest. Therefore, because c.183A and the Master Deed require 100 percent owner approval before the percentage interest can be altered, I rule that expansions into the common areas require the unanimous consent of the unit owners. In addition, I rule that the group of documents recorded on October 30, 1984 as an amendment to the Master Deed which authorized a majority of the trustees to grant exclusive easements to unit owners for the use of a portion of the common areas for expansions was invalid as an amendment because it purported to authorize a majority of the trustees to grant an interest in the common areas which only 100 percent of the owners could grant. Similarly, the purported grant by Chrystie, Ritchie and Burlingame as trustees of an exclusive easement to the Ritchies to use that portion of the common area over which their expansion was to built was invalid.
The Masts, the Burlingames, the Narayanamurtis and the O'Connells have all built substantial expansions on their units and the Ritchies started expanding their unit but were enjoined by this Court from completing construction. In addition, Chrystie and the Strausses expanded their decks and the Maloneys built a four foot by four foot shower stall around the outdoor shower on the easterly side of their unit. None of these owners obtained the approval of all of the unit owners prior to expanding. Therefore, I rule that these expansions were in violation of c.183A. Accordingly, these expansions constitute encroachments on the common areas.
The next issue to be decided is whether because the expansions encroach upon the common areas, their removal must be ordered. The usual remedy for an encroachment on the land of another is a mandatory injunction compelling the removal of the encroaching structure. Peters v. Archambault, 361 Mass. 91 , 92 (1972) and cases cited. However, "[i]t is for the court, in the exercise of a sound discretion, to determine in such circumstances whether a mandatory injunction shall issue." Starkie v. Richmond, 155 Mass. 188 , 195 (1892). In certain exceptional circumstances, courts have refused to grant a mandatory injunction for removal of an encroachment and have left the plaintiff to a remedy of damages. Ottavia v. Savarese, 338 Mass. 330 , 336 (1959). The court must consider all the facts and circumstances of the case in order to determine what is just and equitable. Id. Courts have refused to grant a mandatory injunction ordering the removal of an encroachment
when it appears that it will operate inequitably and oppressively,...when it appears that there has been unreasonable delay by the party seeking it in the enforcement of his rights,...[or] 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.
Starkie, 155 Mass. at 195-6. Mandatory injunctions have also been denied where "by an innocent mistake, erections have been placed a little upon the plaintiff's land, and the damage caused to the defendant by removal of them would be greatly disproportionate to the injury of which the plaintiff complains." Lynch v. Union Institution for Savings, 159 Mass. 306 , 308 (1893).
Both the Masts' and the Burlingames' expansions were completed before the issue of possible problems with expansions into the common areas arose. The Masts' and the Burlingames' expansions were done in good faith with no knowledge that expansions into the common areas might violate c.183A. Both the Masts and the Burlingames believed that they had the necessary approval to allow them to expand. In addition, no one had objected to either expansion. Moreover, the Maloneys had encouraged the Burlingames to expand.
The Narayanamurtis and the O'Connells expanded their units in 1984 after becoming aware of the possibility that expansions into the common areas might violate c.183A. However, no one stated at any of the meetings in late August or early September and October of 1983 that the construction of expansions should cease. Rather, the general consensus after these meetings seemed to be that an attorney should be retained to review the condominium documents as well as c.183A. The attorney retained would then furnish the owners with an opinion as to whether the condominium documents needed to be amended and if so, how, in order to bring them into compliance with c.183A and to provide unit owners with the right to expand their units. In addition, although they would not sign the approval form for the rebuilding of the O'Connells' unit, both Strauss and Maloney had encouraged O'Connell to negotiate with Ritchie for larger expansion and told O'Connell that they supported his plans to go forward with his expansion. Based upon the actions of Strauss and Maloney at this meeting, it was reasonable for O'Connell to infer that although Strauss and Maloney did not want to formally approve his expansion plans because they believed that expansions violated c.183A, they had no objections to expansions per se.
Although Maloney knew as of October 8, 1983 that the Narayanamurtis were planning to expand their unit, he did not tell Narayanamurti that he could not or should not go forward with his planned expansion. Furthermore, on October 10, 1983, Narayanamurti met with Strauss to discuss changes Strauss wished Narayanamurti to make regarding the location of the Narayanamurtis' septic system and the expansion of their deck. Narayanamurti agreed to make certain changes. Strauss then shook Narayanamurti's hand and said, in substance, "I'm happy. This is great. Now I can sleep at night." After this meeting with Strauss, it was reasonable for Narayanamurti to believe that he had Strauss' approval for his expansion. Although Narayanamurti and O'Connell were aware of potential problems with expanding into the common areas, each reasonably believed that no one objected to their expansions.
The Strausses expanded their deck prior to being aware of any potential problems with expansions. Strauss did not get the approval of all of the unit owners prior to constructing his deck but he did receive the approval of Chrystie, Ritchie and Maloney as trustees. Therefore, I find that Strauss also expanded his deck in good faith believing he had the necessary approval.
Based on the foregoing and considering all of the equities, I rule, in the exercise of my discretion, that an injunction ordering the removal of the expansions of the Burlingames', the Masts', the Narayanamurtis', the O'Connells' and the Strausses' unit would operate oppressively and inequitably. These unit owners acted in good faith in constructing their expansions, in some cases with what could reasonably be interpreted as the approval of Strauss and Maloney. In the totality of the circumstances, I rule that equity does not require me to grant injunctive relief. Therefore, I will not order the removal of the expansions built by the Burlingames, the Masts, the Narayanamurtis, the O'Connells and the Strausses. For the same reasons, I will not order the removal of the septic systems installed in the common areas by the Burlingames, the Narayanamurtis and the O'Connells.
In their complaint the plaintiffs ask the court to award them damages for the loss of marketability of their units resulting from the defendants' expansions into the common areas. Because the plaintiffs have introduced no evidence that their units have suffered any loss of marketability due to the defendants' expansions into the common areas, I award no damages to the plaintiffs for any loss of marketability of their units.
The plaintiffs also ask the court to award them damages for the defendants' trespasses into the common areas. The defendants argue that the plaintiffs do not have standing to assert this claim because it relates solely to the common areas. I agree. G.L. c.183A, §l0 (b) (4) provides that the organization of unit owners, in this case the trust, has the power "[t]o conduct litigation ... involving the common areas and facilities ..." In Cigal v. Leader Development Co., the Court held that G.L. c.183A, §l0 (b) (4) clearly contemplates that claims for negligent construction of the common areas and for breach of fiduciary duty by members of the board of governors of the owners' association were claims which could only be raised by the owners' association as the exclusive representative of the unit owners. 408 Mass. 212 , 217-219 (1990). In Cigal, the Court distinguished between claims which are individual in nature which unit owners may pursue individually and claims which are collective claims that may only be pursued by the unit owners' organization. Id. at 216-219. Like a claim for negligent construction of the common areas, I rule that a claim for trespass to the common areas is one which only the owners' association can raise and which the plaintiffs may not assert individually, except through a derivative suit. See Cigal, 408 Mass. at 218-219. Accordingly, because the plaintiffs have not brought a derivative action, I hereby rule that they lack standing to pursue this claim individually and I therefore award no damages to the plaintiffs for trespasses into the common areas.
Chrystie expanded his deck some time in 1984. Chrystie did not obtain the approval of all of the unit ownes nor is there any evidence that he attempted to do so. There is no evidence that any of the unit owners encouraged Chrystie to expand his deck. In addition, Chrystie was aware that expansions into the common areas might pose problems. Accordingly, the circumstances which required that I deny the removal of the aforementioned expansions are not present with the expansion of Chrystie's deck. I therefore rule that Chrystie must remove the one foot by thirty foot portion of his deck which encroaches on the common area within ninety (90) days of the date of this decision.
Section 8.f. of the Master Deed provides that nothing in the Master Deed shall prohibit a unit owner from installing a shower on the outside of the unit with a privacy fence or screen. However, an enclosure such as the one built by the Maloneys segregates that portion of the common area enclosed by the fence from the rest of the common areas and operates to give the Maloneys exclusive use of the common area so enclosed. The Maloneys built the enclosure (which appropriates to their exclusive use a portion of the common area) well after this litigation was filed and without the approval of all of the unit owners. Therefore, I order that the Maloneys must remove the shower enclosure within ninety (90) days of the date of this decision.
The Ritchies began construction on their unit after the commencement of this action. Therefore, the Ritchies built at their own risk with full knowledge of the plaintiffs' objections to their expansion. None of the plaintiffs encouraged the Ritchies to proceed with their expansion. Equity does not require in this instance that I deny the plaintiffs' request for a permanent injunction against the Ritchies. Accordingly, the Ritchies are hereby enjoined from constructing an expansion to their unit unless they obtain the consent of all of the unit owners. In addition, the Ritchies are hereby ordered to remove that portion of the expansion's foundation which encroaches on the common areas within ninety (90) days of the date of this decision.
The Ritchies ask the Court to award them $35,472.24 for damages they claim they suffered because the plaintiffs did not enjoin the construction until two months after it began. The plaintiffs were aware that the Ritchies were starting to work on the inside of their unit in November of 1984. However, it was not until January of 1985, when the plaintiffs discovered that the Ritchies had begun excavating the common area near their unit, that the plaintiffs moved to enjoin the Ritchies' construction. It would certainly have been preferable if the plaintiffs had contacted the Ritchies in November of 1984 when they first noticed some construction in order to determine whether the Ritchies were proceeding with the construction of their expansion. However, because the Ritchies went ahead with their expansion knowing that the plaintiffs objected, I will not award damages to the Ritchies. The plaintiffs also ask the Court to 1) permanently enjoin the defendant Canham from advertising Unit 3 as "expandable"; 2) to order the trustees to enforce use restrictions pursuant to section 8 of the Master Deed and 3) to order the trustees to pay the plaintiffs' legal fees resulting from the trustees' failure to enforce G.L. c.183A, §§5(a)-(e) and provisions of the master deed and trust. The plaintiffs' request for an injunction against Canham is hereby denied because the unit is expandable as long as the owner has the approval of all of the unit owners. Nor will I order the trustees to enforce the use restrictions contained in section 8 of the Master Deed because no evidence was presented that the trustees were not enforcing the use restrictions. Finally, I will not order the trustees to pay the plaintiffs' legal fees resulting from the trustees failure to enforce G.L. c.183A, §§5 (a)(e) and provisions of the master deed and trust because there is no evidence that the trustees failed to enforce said provisions.
In their counterclaim, the defendants ask to Court to order the plaintiffs to pay their pro rata share of the $450 paid to attorney Green for his services in preparing his report on the condominium documents and c.183A. At the October 6, 1984 owners meeting Strauss and Maloney agreed that it was the right of the other owners to charge them for their share of the bill for Green's services, but told the others that they did not intend to pay it. Because Strauss and Maloney agreed that the others could properly charge them, I hereby order the plaintiffs to pay their pro rata share of attorney Green's bill. Therefore, the Strausses and the Maloneys must each pay $50 to the defendants. The defendants also ask that the plaintiffs be ordered to pay their legal fees. I hereby deny this request.
In order to stabilize this unfortunate situation and render title to the units marketable, it is hereby ordered that the Master Deed, the Declaration of Trust and the site plan be amended to reflect the actual dimensions of the units as they exist after the encroachments ordered to be removed have occurred. It is also ordered that the percentage interest which each unit owner has in the common areas be recalculated to reflect any proportionate change in the value of the units due to expansion. This cost should be borne by those owners who have expanded and who were not ordered to remove their expansions.
[Note 1] In addition to the nine residential units there is also one common building, a boat shed, on the premises.
[Note 2] All instruments referred to hereinafter are recorded in the Barnstable County Registry of Deeds unless otherwise specified.
[Note 3] Further amendments to the Declaration of Trust and to the Master Deed were either accomplished or attempted, but as these are germane to the issues in this proceeding, they will be discussed at greater length at a later point in this decision.
[Note 4] In addition to the Ritchies, Maloneys and Burlingames, Ventola also represented the Narayanamurtis, who purchased Unit 1 on April 17, 1981, the Masts, who purchased Unit 9 on June 25, 1981 and the Strausses, who purchased Unit 4 on October 7, 1982.
[Note 5] Although the testimony in this proceeding is consistent that the Masts expanded their unit in early 1982, a building permit for the Masts' unit dated September 28, 1982 was introduced into evidence, which suggests that perhaps the Masts' expansion was not actually done until late 1982 or early 1983. The discrepancy between the testimony as to the date when the Masts expanded and the date of the building permit was not explained. However, because the testimony is consistent as to the date of the Masts' expansion, I find that the Masts' expansion occurred in early 1982.
[Note 6] Boggess was the owner of Unit 4, the Strausses' unit, at that time.
[Note 7] Although Maloney signed as a trustee, as was discussed earlier, he was never actually a trustee.
[Note 8] There is conflicting testimony as to whether Strauss widened the driveway. However, I make no finding as to whether he did so because for reasons to be set forth at a later point in this decision, I find this to be irrelevant.
[Note 9] Although Burlingame signed the instrument as a trustee, as was discussed earlier, he was not actually a trustee.
[Note 10] The landscaping done near Chrystie's unit was the creation of the lawn area between his and the Narayanamurtis' unit.
[Note 11] The landscaping done near the Maloneys' unit was the placement of crushed stone in the common area adjacent to the outdoor shower located on the easterly side of the unit.
[Note 12] The landscaping and improvements made to the common area near the Narayanamurtis' unit included the creation of the lawn area between the Narayanamurtis' and Chrystie's unit, the railroad tie steps leading from the new parking lot down to the lawn and the railroad tie retaining wall to the north and west of the unit.
[Note 13] The landscaping and improvements made to the common areas near the O'Connells' unit consisted of the placement of railroad ties along the southwesterly side of the unit and around the parking area on the northerly side of the unit.
[Note 14] The Strausses graded their driveway, lined the driveway with railroad ties and put "pea stone" on the driveway.
[Note 15] Cf. Grimes v. Moreland, 322 N.E. 2d 699, 702-3, 41 Ohio Misc. 69 (1974), where the Court ordered the removal of a six foot high fence which enclosed a portion of the common area adjacent to one of the units because the Court found this to be a taking of the common area. The Court stated that the fence divided "the common area into identifiable zones adjacent to particular units with an implied desire for privacy which would deter, if not stop, other unit owners from strolling, dog walking or toddler exercising in the fenced off area." Id. at 702.
[Note 16] The provision in the deed to each unit which states that each unit was conveyed with the exclusive right to use the parking area designated for the unit on the site plan was ineffective to convey to each purchaser this exclusive right. The parking areas became part of the common areas and facilities when Chrystie created the condominium in November of 1980, prior to conveying the first unit, and therefore, Chrystie had no rights in these parking areas which he could convey to any of the purchasers by the unit deeds.
[Note 17] The defendants were the owners of Unit 11 and the trustees of the trust.