CESAR HERNANDEZ, SHERLEY GARDNER SMITH, SUSANNE GOLDSTEIN, LINDA GREYSER, MARVIN SCHORR and RICHARD CANZANO, as Trustees of 330 Beacon Street Condominium Trust v. MICHAEL C. LESBURG, SUSAN M. NAJJAR and ELIZABETH A. NAJJAR. SUSAN LESBURG, in her capacity as Trustee of the One Forty-Six Trust, Defendant-Intervenor. SUSAN M. NAJJAR and ELIZABETH A. NAJJAR v. MICHAEL C. LESBURG; and CESAR HERNANDEZ, SHERLEY GARDNER SMITH, SUSANNE GOLDSTEIN, LINDA GREYSER, MARVIN SCHORR and RICHARD CANZANO as Trustees of 330 Beacon Street Condominium Trust

The trustees (“Trustees”) of the 330 Beacon Street Condominium filed an action in the Land Court seeking to have this court determine who has rights to park in a certain parking space in the garage of the condominium, located at 330 Beacon Street in Boston, Massachusetts. The Trustees, Defendant Michael Lesburg (“Lesburg”), and defendants Susan M. Najjar and Elizabeth A. Najjar (collectively, “Najjar”) each claim the parking space as their own.

The 330 Beacon Street Condominium (“Condominium”) was created by master deed (“Initial Master Deed”) dated April 26, 1974 and recorded in the Suffolk Registry of Deeds (“Registry”) in Book 8706, Page 194. The initial declaration of trust recorded with the Initial Master Deed is dated the same date and recorded with the Initial Master Deed in Book 8706, Page 204 (“Initial Declaration of Trust”). Both documents have been amended and restated.

The complaint in this case was filed February 22, 2005. Lesburg filed an answer and counterclaim on April 27, 2005. The Najjars filed an answer and counterclaim the following day. The Trustees seek a declaration that the parking rights should return to the Trustees, and request attorneys’ fees pursuant to G.L. c. 183, § 6 (a). The Najjars ask that the the court rule that the assessment of garage expenses against unit owners who do not have a license to use a garage parking space violates the condominium statute, and that the severance of the parking space from Unit 36 required a recalculation of the percent interest in common areas held by each unit. Lesburg asks the court to determine that he holds the rights to park in the disputed garage space, that the Trustees are liable to Lesburg for tortious interference with advantageous relations by not allowing him to rent the parking space, and that Lesburg is entitled to the escrowed rental funds from the parking space set aside during the pendency of this dispute.

The court (Piper, J.) conducted a case management conference on April 29, 2005. On May 23, 2005, over objection, the court allowed the motion of Susan Lesburg, Trustee of One Forty-Six Trust, for permissive intervention. Her complaint was entered on the docket that day. Following hearing on October 17, 2005, and over the objection of Lesburg, the court allowed the motion of the Trustees to amend their complaint to assert a claim for attorney’s fees under chapter 183A, and to seek recovery for the wrongful use of the disputed parking space. After several joint requests to extend the tracking orders the Najjars filed a motion for partial summary judgment. The Trustees and Lesburg each cross-moved, and after appropriate responsive filings the court held a hearing on the motions for summary judgment. The parties then renewed efforts to settle this dispute. Ultimately, counsel advised the court that these negotiations had failed to yield a settlement. The court issued its Order on Cross Motions for Summary Judgment on July 9, 2009, which I incorporate fully into this Decision. Babson v. Lesburg, 17 LCR 448 (2009) (Misc. Case No. 05 MISC 306777) (Piper, J.); 2009 WL 1929195. Much of the background of the dispute remaining for disposition before me is set forth in the prior summary judgment order, and is not necessarily repeated at length in this decision. Nothing in the subsequent proceedings in this case, including the evidence heard at trial, convinces me of any need to depart from or modify the rulings made in the earlier entered summary judgment order.

In the July 7, 2009 Order on Cross Motions for Partial Summary Judgment, the court ruled that the right to exclusive use of an indoor parking space was properly understood as a license. 17 LCR at 451, 2009 WL 1929195, at *6-7. The court then concluded that the conveyance of a certain condominium unit (“Unit 36”), which severed from it the indoor parking space (“Parking Space 4”) formerly associated with Unit 36, did not violate Massachusetts common law property principles or the condominium statute, G.L. c. 183A, but did violate the “plainly prescribed procedure” of the organic instruments of the condominium. 17 LCR at 448, 2009 WL 1929195, at *2. The court ruled that a trial needed to be held to determine the proper remedy for the attempted conveyance (or reservation) of Parking Space 4, which failed to comply with the applicable provisions of the declaration of trust, and was thus ineffective, and to resolve the remaining issues for which summary judgment was not sought. 17 LCR at 453, 2009 WL 1929195, at *10. Finally, the court cautioned (without ruling) that it appeared inequitable that Lesburg would forfeit entirely his parking space, a license right of material value, particularly in light of the somewhat technical nature of his noncompliance. Id.

On December 10, 2009, the Najjars filed a motion to amend their answer, cross claim, and counterclaim. The Trustees and Lesburg each filed written oppositions to the motion, which was heard by the court (Piper, J.) on February 24, 2010, immediately prior to the pretrial conference. The court denied the motion to amend for substantially the reasons set forth in the opposing papers filed by the Trustees and by Lesburg, including the late timing of the request, and the futility of the amendment. [Note 1] A second pretrial conference was held on April 13, 2010. Consistent with the rulings made February 24, 2010, the court ruled that the Najjars would not be permitted to present evidence at the upcoming trial if that would be intended to lead the court to a judgment reforming the deed from Lesburg to the Najjars. As to the remaining claims of the Najjars, concerning whether the Trustees had the legal authority to include, in common expense charges to be paid by the Najjars, a share of costs associated with the indoor parking garage that the Najjars have no right to use, and whether severance of Parking Space 4 from Unit 36 required a recalculation of the common interest in the whole condominium, those issues would be heard, not at trial, but instead on further motions for partial summary judgment.

On May 26, 2010, the court held the first day of trial. A court reporter was sworn to transcribe the testimony and proceedings. The second day of trial was held July 21, 2010. The following witnesses testified during the two-day trial: Marvin Schorr, Michael DeMarco, Michael Lesburg, and Susan Lesburg. At the close of the taking of evidence, the court suspended the trial, instructing parties to await the trial transcript, and return to court for closing arguments after submitting posttrial briefs, and proposed findings of fact and rulings of law. On October 5, 2010, parties returned to court with a court reporter present, and made their closing arguments.

Meanwhile, on May 25, 2010, the Trustees filed their motion for partial summary judgment, along with a motion to dismiss for lack of subject matter jurisdiction the counterclaim of Lesburg alleging tortious interference. The Najjars filed an opposition and cross motion on June 24, 2010. Lesburg filed an opposition to the motion to dismiss on August 5, 2010. On August 11, 2010, the court heard argument on all three motions. [Note 2]

I. THE MOTION TO DISMISS

As a threshold matter, I rule that the Lesburgs’ counterclaim for tortious interference must be dismissed because the Land Court lacks subject matter jurisdiction. The Land Court Department of the Trial Court has concurrent jurisdiction with the Superior Court Department, pursuant to G.L. c. 185, § 1(k) of “matters cognizable under the general principles of equity jurisprudence where any right, title or interest in land is involved.” Courts have held that “The authority of the Land Court to award damages on a tort-based theory [is] clear where damages are ancillary to claims related to any right, title, or interest in land[.]” See Ritter v. Bergman, 72 Mass. App. Ct. 296 , 301-02 (2008) (affirming damages awarded by Land Court justice pursuant to G.L. c. 242, § 7 concerning willful trespass to trees). In Ritter, once the Land Court decided the underlying real property question, whether the defendants had a right to enter the disputed area and remove trees, the only thing left to determine in the G.L. c. 242, § 7 was damages. See Ritter v. Bergman, 14 LCR 387 , 389 (Misc. Case No. 284893) (Long, J.). Here, the tortious interference claims are not “ancillary” to any matter properly within the Land Court’s jurisdiction. To be sure, the facts and locus of the tort claim clearly are related to the real property rights being litigated in this case, but the tortious interference claim is wholly independent. The claim for tortious interference must be dismissed for lack of subject matter jurisdiction. See also Reagan v. Mott, 11 LCR 243 , 244 n. 3 (Misc. Case No. 276800) (Scheier, C.J.) (2003) (counterclaim for tortious interference outside Land Court subject matter jurisdiction) rev’d on other grounds sub nom., Reagan v. Brissey, 446 Mass. 452 (2006); Catalano v. Catalano, 7 LCR 133 , 134 (Misc. Case No. 222370) (1999) (Scheier, J) (Land Court justice assigned as justice of Superior Court Department to hear tortious interference claim), aff’d 51 Mass. App. Ct. 1105 (2001); Wagley v. Danforth, Land Court Misc. Case No. 231448 (December 19, 1997) (Lombardi, J.) (dismissing counterclaim for tortious interference).

Even were the court to venture outside its limited jurisdiction to address the tort claims on the merits, the Lesburgs would not succeed on the evidence I heard. They have failed to prove an essential element of their claim for tortious interference, namely, that the interference was undertaken for an improper purpose, or by improper means. See Swanset Dev. Corp. v. Taunton, 423 Mass. 390 , 397 (1996); United Truck Leasing Corp. v. Geltman, 406 Mass. 811 , 817 (1990) (holding conduct that is both “intentional” and “improper” essential element for proof of claim). Here, there is no evidence that the Trustees acted with an improper purpose. While the court ultimately concluded in its July 9, 2009 Order that the severance of Unit 36 from Parking Space 4 was not barred by property law principles, Lesburg did fail to follow the procedures set forth in the declaration of trust—procedures the Trustees are obligated to enforce. This is true regardless whether or not the Trustees were justified in their belief that the condominium documents and/or Massachusetts law forbade the separate conveyance of appurtenances. [Note 3]

II. THE CROSS MOTIONS FOR PARTIAL SUMMARY JUDGMENT

The Trustees request that the court enter summary judgment in their favor on paragraph 8 of the prayers for relief in the counterclaim of the Najjars, which states “it is unlawful and violative of the Massachusetts Condominium Statute for the 330 Beacon Street Condominium Association to allow free use by some unit owners on an exclusive basis of that portion of the common areas known as the parking garage without establishing such common areas as limited common areas, the maintenance and repair of which are being paid only by those with rights to use such limited common areas.” The Najjars filed a cross motion seeking judgment in their favor both as to paragraph 8, quoted above, and also as to paragraph 7 of their prayers for relief in the counterclaim, which alleges that “the actions of the Condominium Association in allowing free and exclusive use of the condominium common areas known as the parking garage while imposing common expenses assessments on unit owners without any rights to use of said areas is violative of the Massachusetts Condominium Statute.” [Note 4] Following hearing, on the cross motions I now decide them. After review of the summary judgment record, including all of the facts properly before the court pursuant to Mass. R. Civ. P. 56(c), and upon consideration of the arguments presented at the hearing, I ALLOW the motion of the Trustees and DENY the motion of the Najjars.

For the purposes of the cross motions for summary judgment, the following facts are determined to be without dispute:

1. The Najjars hold title to Unit 36 of the 330 Beacon Street Condominium, along with .8622 percent of the common elements, by deed dated September 25, 2002, and recorded in the Registry at Book 29430, Page 18. The deed states that “This unit is specifically not conveyed with the easement or license to use any parking space.” The language quoted appears underlined in the deed.

2. The .8622 percent interest in common elements was assigned to Unit 36 when the Initial Master Deed was filed on April 26, 1974. The first unit deed conveying Unit 36 out of the developers conveyed Unit 36 together with .8622 percent of the common areas, and “A license to use one (1) indoor parking space, the location of which shall be determined from time to time by the Trustees[.]”

3. At the time the Najjars took title to Unit 36, the Declaration of Trust provided that:

Each Unit Owner shall be liable for common expenses and shall be entitled to common profits of the Condominium according to his respective percentage of undivided interest in the Common Elements as set forth in Schedule A of the Master Deed which is incorporated herein by reference with the same force and effect as though fully set forth in the body of this instrument.

4. At the time the Najjars took title to Unit 36, the Master Deed provided that:

The percentages of interest of the respective Units in the Common Elements have been determined upon the basis of the approximate relation which the fair value of each Unit on the date hereof bears to the aggregate fair value of all the Units on this date.

5. Section 4 of the Initial Master Deed, in effect when Unit 36 was first conveyed, describes the condominium’s common areas and facilities. Section 4 (f) describes the garage as common area with the following language:

The garage of the Building, provided, however, that certain of the Unit Owners shall have a license for the exclusive use of one (1) or more parking spaces, as described in the Unit Deeds, the location of which shall be designated from time to time by the Trustees of 330 Beacon Street Condominium Trust.

6. In 2003, the condominium association paid $8,000.00 for a sweeper machine to wash and sweep the garage.

7. The condominium association pays $40,000.00 a year to employ a full time cleaner and two part time cleaners whose duties include, among others, cleaning the garage, sweeping the garage, picking up trash, and washing the garage.

8. The cost of purchasing remote control garage door openers for the persons with parking licences is treated as a common area expense.

9. In June of 2005, the condominium association incurred a charge of $3,957.00 to clean and lubricate six garage heaters.

10. All of the expenses for the garage are assessed as a common area expense to all unit owners regardless of whether a unit owner has any right to park in the garage.

11. A portion of the annual $140,000.00 electricity bill for the condominium common areas relates to the parking garage and is assessed as a common area expense to all condominium unit owners.

12. The expense of pest control in the garage is assessed to all condominium unit owners as a common area expense.

13. In or about November of 2005, the condominium association levied a $600,000.00 special assessment in connection with a repair project for the garage. Of this, $95,000.00 was paid for valet parking while the while the garage was being repaved. The valets retrieved vehicles from the garage and brought them to the front of the building for residents with parking licenses.

14. After Lesburg conveyed Unit 36 to the Najjars, Lesburg rented Parking Space 4 to another person and received payments of rent. During this time, Lesburg no longer paid the .8622 percent of common area expenses attributable to ownership of Unit 36 because Lesburg no longer owned Unit 36.

15. Between 2002 and July of 2010, the Najjars had paid $70,326.00 in common area expenses. Susan Najjar’s common area expenses for the year 2009 were $10,788.00. In addition, Susan Najjar has paid $26,297.00 in special assessments between 2002 and July 2010. This includes $5,172.00 as her share of the $600,000.00 special assessment for the 2005 parking garage repair project.

16. The condominium common areas include seventy-one parking spaces in the garage, and thirteen outdoor parking spaces. There are seventy-eight units in the condominium.

* * * * *

“Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law.” Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643-644 (2002); Mass. R. Civ. P. 56 (c). “The moving party bears the burden of affirmatively showing that there is no triable issue of fact.” Ng Bros., 436 Mass. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney General v. Bailey, 386 Mass. 367 , 371, cert. den. sub nom. Bailey v. Bellotti, 459 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law, and “an adverse party may not manufacture disputes by conclusory factual assertions.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros., 436 Mass. at 648.

The Najjars argue that when a condominium deprives a unit owner of any use of a common element by giving exclusive use to another unit owner, the condominium must create a “limited use” common area under G.L. c. 183A, § 5 (b) (2) (ii), or recalculate the percent interest. The General Court added provisions expressly authorizing limited use common areas to the condominium statute in 1994. See St. 1994, c. 365, §§ 2 and 4. Prior to that, courts of the Commonwealth had ruled that “although silent on the topic of limited common areas,” G.L. c. 183A permitted their creation and implementation as “an expansion of the theory behind common expenses.” Tosney v. Chelmsford Village Condominium Assoc., 397 Mass. 683 , 687(1986).

In Tosney, the condominium development consisted of both townhouse units and several “garden-style” buildings, each garden-style building containing thirty-two units. Id. at 685. The garden-style buildings contained elevators, underground parking, and central heating and air conditioning, amenities not found in the townhouse units. Id. The association of unit owners effectively amended the master deed to assess these “special” common elements only to the garden-style buildings. Id. Previously, all unit owners, including those who resided in the townhouse units, paid for expenses associated with the “special” common areas. See id. In an action by owners of units in the garden-style buildings arguing the assessments were invalid because they did not assess all unit owners, the motion judge ruled for the condominium association, and the Supreme Judicial Court upheld this ruling. 397 Mass. at 688. The issue in Tosney was whether, absent explicit legislative authorization, a condominium had the authority to set up limited common areas and to assign the costs associated with them to those units which enjoyed the limited areas. Id. at 687. There is nothing in the Tosney decision to suggest that limited use common areas are mandatory; the Tosney court held only that they were permissible. See id. at 687-88 (associations have “right” to assess owners for their use of limited areas); Podell v. Lahn, 38 Mass. App. Ct. 688 , 693 (1995) (“facilities used solely by certain unit owners to the exclusion of others are permissible under the statute when the master deed authorizes exclusivity.”). [Note 5]

The enactment of G.L. c. 183A, § 5 (b) (2) (ii) did not obligate Massachusetts condominiums to adopt limited common area assessment schemes in every instance where that approach might, as a matter of discretion, be appropriate. There are many conceivable instances in which an association of unit owners might rationally decide that all unit owners should pay for the upkeep of a common element that not all unit owners use. The classic example is the owner of a first floor unit who pays for the upkeep of the elevator in which he or she has little or no occasion to ride. Certainly the condominium statute cannot be read as requiring every common elevator to be assessed as limited common area to protect those on the ground floor from paying for something they do not need to use. Although it is conceivable that a condominium could, by duly adopted provisions of the recorded documents, shift some of the associated costs in the direction of the primary users, if it desired, there is no legal requirement imposed by the statute, which is implementing and permissive in its most elemental form. “Chapter 183A is essentially an enabling statute. Although it lays out certain minimum requirements for setting up condominiums, it also provides planning and flexibility to developers and unit owners.” Tosney, 397 Mass. at 686-87 (internal citations omitted).

I do not consider a different conclusion to be required by the fact that the indoor parking spaces of the Condominium are not even open to use by the Najjars. They rely on Kaplan v. Boudreaux, 410 Mass. 435 (1991) for the proposition that “[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. In Kaplan, a bylaw amendment granted exclusive use of a walkway to a certain unit. Id. at 437. As a practical matter, that unit was (both before and after the amendment) the only unit served by the walkway, although prior to the amendment, the walkway was part of the common area of the condominium ostensibly open to all unit owners. Id. The amendment passed, as required by the terms of the master deed and declaration of trust, by a vote of holders of more than seventy-five percent of the interest. Id. One unit owner brought suit in Superior Court, arguing that the bylaw amendment affected a dilution of his percent interest in common areas, and that it took place outside the prescribed avenues of section 5 of the condominium statute. 410 Mass. at 436. The Superior Court granted summary judgment to the defendant trustees and the Supreme Judicial Court took the case directly from the Appeals Court and reversed the trial court’s judgment. Id. The Kaplan court first tried to determine what type of an interest was changed by the amendment: an easement, a lease, or a license, noting that two are considered interests in land, but a license is not. Id. at 439-40. The court ultimately held that the walkway had enough characteristics of the common law categories that are interests in land to implicate the prohibitions of G.L. c. 183A, § 5, and that the change in ownership from common-to-all, before the amendment, to exclusive use, following the amendment, was enough to require a recalculation of the percent interests. Id. at 441.

In Kaplan, prior to the amendment granting exclusive use of the walkway, the walkway was open to all of the unit owners and the court attributed “particular significance, as have other courts, to the fact that the by-law granted exclusive use of a common area. The other unit owners thus lost all right to use part of the common property, and one unit owner gained the right to use it exclusively.” 410 Mass. at 443.

The facts in Kaplan are distinguishable from the facts in the case before me. Here, the indoor parking spaces never were open to all, and so no unit owner has--as a result of the events involved in this pending case--been deprived of a property right of use which he or she once enjoyed. The disputed parking space was not converted from “common-to-all” to “private” or “exclusive” by a bylaw change, as was the case in Kaplan. Instead, the Master Deed always provided that the garage parking spaces were to be subject to exclusive use “licenses” to be held by “certain of the unit owners” and not open to all. As this court already has held, the property interest at issue here is a license. 17 LCR at 451, 2009 WL 1929195, at *6-7. In Kaplan, the property interest was something expressly different. 410 Mass. at 442 (license is not interest in land).

Another distinction between the case at bar is that in Kaplan, the vote to amend the bylaw was accomplished with a majority of more than seventy-five percent of the common interest, but less than 100 percent. Id. at 437. Thus, the holder of at least a portion of the common interest did not vote in favor of making the walkway exclusive use, and was deprived of his property against his wishes (as shown by the ensuing lawsuit). That scenario, which was troubling to the Kaplan court, is nowhere present at 330 Beacon Street. The establishment of the parking space rights, which were divvied up in the initial conveyances made out following declaration of the Condominium by its developers, was accomplished according to the duly adopted provisions of the documents, including Section 4 (f) of the Initial Master Deed, which authorized the Trustees to designate, from time to time, certain of the Unit Owners who would have the right to park in certain of the garage parking spaces. This construct was set forth in the recorded documents at the very start of the condominium regime, and what has happened since, leading to this litigation, is not a consequence of some deprivation of right of possession worked by later amendment. More fundamentally, here the Najjars identify themselves with the plaintiff in Kaplan who lost some of his property (whatever small percent interest he had in the walkway) against his wishes, but this is not the situation in which the Najjars have found themselves. The Najjars did not “lose” any rights because they never had a garage space parking license in the first place.

Likewise, the transfer of Unit 36 without the parking license did not require a revaluation of the percentage interests in common elements. The percentage interests in the common elements of the 330 Beacon Street Condominium were calculated and assigned to the various units in 1974. As the statute then and since has required, that calculation was based on the approximate fair values of the respective units. There is no evidence that the original percentage interest allocation set forth in the 1974 Schedule A took into account whether or not the unit had a license to use one of the parking spaces. In fact, the only reasonable inference is that it did not. This is because the declarants structured the use of parking spaces within the garage so that it was a license, and not a fixed appurtenant easement. A license is not a real property right. Thus, these licenses could be traded back and forth among the various units without affecting their respective percent interests because no ownership interest traded hands. [Note 6] Section 5 (a) of chapter 183A “requires that an ‘approximate’ valuation be made at a single moment in time, the recording of the master deed.... [R]esidential real estate valuations are often... ‘fluid and sometimes hard to pinpoint,’ and values of individual condominium units can and do change over time[.]” Scully v. Tillery, 456 Mass. 758 , 772 (2010). Once the percent interests are set at a certain point in time, there is no requirement in Massachusetts that every change which affects the relative values of the units requires revaluation of the whole. [Note 7] Id. Rather, the rule is more limited: that when formerly “open-to-all” common elements are appropriated for exclusive use, a revaluation is required. Kaplan, 410 Mass. at 441. [Note 8] Here, no common elements were appropriated for exclusive use, and no revaluation is required.

Finally, it is worth mentioning that this result is not at all unfair. Massachusetts decisional law has long held that purchasers of condominium units are bound by the terms of the recorded master deed. See Johnson v. Keith, 368 Mass. 316 , 321 (1975). See also Scully v. Tillery, 456 Mass. at 775 (“recorded amendments [to master deed] placed the phase II owners on notice of the precise nature of the estate that each purchased.”); Beaconsfield Towne House Condominium Trust v. Zussman, 416 Mass. 505 (1993) (unit owners took title subject to 155-year lease) [Note 9]; Tosney, 397 Mass. at 688. Here, the Master Deed clearly and explicitly sets forth that the garage is common area, that all unit owners must pay for the maintenance of all common areas, and that “certain of the unit owners shall have a license for the exclusive use of one (1) or more parking spaces.” Not only was the Master Deed duly recorded at the Registry, which would be enough by itself to provide notice sufficient to bind the Najjars to its terms, but the September 25, 2002 deed by which the Najjars hold their title states: “This unit is specifically not conveyed with the easement or license to use any parking space.” The language is underlined in the actual deed. The eyes of the Najjars were wide open.

III. TRIAL DECISION

According to the July 7, 2009 Order, the issue for trial was to be “what the proper remedy is for this inadequate effort to keep back a parking space long assigned to a conveyed unit.” 17 LCR at 449, 2009 WL 1929195, at *2.

Based on the trial exhibits, the testimony at trial, and the parties’ Statement of Agreed Facts, filed April 9, 2010 as part of their Joint Pretrial Conference Memorandum, and the undisputed facts established in the court’s July 7, 2009 Order, as trier of fact, drawing such inferences from the evidence as I consider reasonable and appropriate, I make the following findings of fact:

17. The plaintiff Trustees are trustees of the 330 Beacon Street Condominium Trust, which was created by the Declaration of Trust dated April 26, 1974.

18. Defendant Lesburg and Intevenor Susan Lesburg reside at 330 Beacon Street, Unit 146. Susan Lesburg is Michael Lesburg’s spouse. She owns Unit 146 in her capacity as Trustee of One Forty-Six Trust. The One Forty-Six Trust was created by Declaration of Trust dated July 21, 2003 and recorded with the Registry at Book 32294, Page 80. Michael Lesburg is the original and sole beneficiary of the One Forty-Six Trust.

19. Defendant Susan Najjar resides at 330 Beacon Street, Unit 36. Defendant Elizabeth Najjar no longer resides at Unit 36 but remains a joint tenant on the title.

20. The 330 Beacon Street Condominium was created by the filing of the Initial Master Deed on April 26, 1974. The Condominium building consists of one seventeen-story structure containing primarily residential units and common areas and facilities identified in Section IV of the Master Deed, “Description of Common Areas and Facilities,” which provides in part that:

The Common areas and facilities of the Condominium (the “Common Elements”) consist of the entire Condominium, including all parts of the Building other than the Units, and include, without limitation the following: ...

(f) the garage of the Building, provided, however, that certain of the unit owners shall have a license for the exclusive use of one (1) or more parking spaces, as described in the Unit Deeds, the location of which shall be designated from time to time by the Trustees of 330 Beacon Street Condominium Trust.

21. The Condominium contains seventy-eight units. There are seventy-one parking spaces in the indoor garage, two of which are controlled by the Trustees. The Trustees auction these spaces off every two years in a process that is intended to favor those unit owners who do not already have indoor parking rights assigned to them. There are an additional thirteen outdoor parking spaces located to the rear of the building.

22. The Declaration of Trust as first recorded in 1974, provides, in pertinent part:

“VIII. Sale of Units

Section 1. No severance of ownership. No unit owner shall execute any deed, mortgage, or other instrument conveying or mortgaging title to his Unit without including therein the Appurtenant Interests (as hereinafter defined); it being the intention hereof to prevent any severance of such combined ownership. Any such deed, mortgage, or other instrument purporting to affect one or more of such interests, without including all such interests, shall be deemed and taken to include the interest or interests so omitted, even though the latter shall not be expressly mentioned or described therein. No part of the Appurtenant Interests of any Unit may be sold, transferred, or otherwise disposed of, except as part of a sale, transfer, or other disposition of the Unit to which such interests are appurtenant, or as part of a sale, transfer, or other disposition of such part of the Appurtenant Interests of all Units.

‘Appurtenant Interests,’ as used herein, shall include: (i) the undivided interests of a Unit Owner in the Common Elements; (ii) the exclusive license of a unit owner for one or more balconies, one or more indoor parking spaces (if included in his unit deed), and one or more storage rooms (if included in his unit deed)....

Notwithstanding anything to the contrary herein contained, a Unit Owner may, with the prior written consent of the Board of Trustees, convey his license to use one or more parking spaces or one or more storage rooms appurtenant to the Unit without conveying his Unit as a part of such transaction; thereby severing ownership of the parking spaces or storage rooms from ownership of the Unit.”

(emphasis supplied).

23. In 1977, the declaration of trust of the condominium was amended. A fourth amendment, recorded on June 1, 1977 in Book 8959, Page 205, changed the provisions of Article VIII. As amended, it continues to prohibit severance of appurtenant interests, but, unlike the original version of the declaration, does not list parking spaces in the definition of appurtenant interests. The amended provision says, in pertinent part, that:

[n]o Unit Owner shall convey, sublicense or otherwise by contract permit the use of any parking space(s) to or by any person excepting another Unit Owner or the resident lessee of another Unit Owner. Arrangements concerning or affecting such conveyance, sublicense or permission to use such garage space by a Unit Owner to another Unit Owner shall be submitted in writing to the Trustees for their information and approval, and such approval may be withheld only if in the judgment of the Board of Trustees the granting of such approval will not be in the best interest of the Condominium Trust and Unit Owners; otherwise, such approval shall not be unreasonably withheld or delayed.

This was the version of the declaration of trust in effect, as to these points, at the time of the deed conveying Unit 36 from Michael Lesburg to the Najjars.

24. The Declaration of Trust, as amended, defines “Unit Owner” as the “owner[] of record” of a unit or units in the Condominium.

25. At the annual meeting of the unit owners on April 28, 2005, after this litigation commenced, the meeting voted to amend Article VIII, Section 1 of the declaration of trust; this amendment added to the definition of appurtenant interests the exclusive license of “one or more parking spaces (if included in the Unit Deed.)” The amended language provided that “[n]o Unit Owner shall sublicense the use of any parking spaces(s) to or by any person excepting a resident Unit Owner or the resident lessee of another Unit Owner.”

26. The original unit deed of Unit 36 is dated May 7, 1974, recorded in Book 8708, Page124, signed by the declarant trustee of the 330 Beacon Street Realty Trust, and includes a “license to one (1) indoor parking space...” and the undivided percentage ownership interest in the common areas of 0.8622.

27. By mesne conveyances, Unit 36 came to be owned by the defendant Michael Lesburg, under a deed dated March 22, 2001, recorded in Book 26102, Page 249. This deed of Unit 36, like all the unit deeds of it before, conveyed the unit with “a license to use one (1) indoor parking space, the location of which shall be designated from time to time by the Trustees of 330 Beacon Street Condominium Trust...” and an undivided percentage interest in the common areas of 0.8622. Lesburg paid $525,000.00 for Unit 36.

28. On March 22, 2001, the Lesburgs purchased Unit 35 in the Condominium in the name of Susan Lesburg, Trustee of the Thirty-Five Trust. Unit 35 was conveyed by unit deed recorded at Book 26102, Page 224, and was conveyed together with the right to one indoor parking space, the location of which was to be designated from time to time by the Trustees.

29. The Lesburgs resided in Unit 35 and rented out Unit 36. During the time in which they rented Unit 36, the Lesburgs retained control over the parking license associated with Unit 36.

30. By deed dated September 25, 2002, recorded the same day in Book 29430, Page 18, Michael Lesburg conveyed Unit 36 to Susan M. Najjar and Elizabeth A. Najjar. The deed conveyed an undivided 0.8622 percentage interest in the common areas. The deed conveyed the exclusive license to use one storage room and any balconies extending from the unit. The deed provided: “This unit is specifically not conveyed with the easement or license to use any parking space.”(underlined in original). The stated consideration was $525,000.00.

31. At no time prior to Lesburg’s conveyance of Unit 36 to the Najjars did he seek or obtain formal Trustee approval of his retention of Parking Space 4.

32. On July 29, 2003, the Lesburgs purchased Unit 146 by deed recorded at Book 32294, Page 90. Susan Lesburg as Trustee of One Forty-Six Trust is the record owner. Unit 146 was conveyed together with an exclusive license to use two indoor parking spaces, the location of which was to be designated from time to time by the Trustees.

33. On November 21, 2003, Susan Lesburg, as Trustee, sold Unit 35 together with the license to use the parking space assigned to that unit.

34. Lesburg leased Parking Space 4 to unit owners Paul and Susan Flynn for the twelve-month period beginning December 1, 2003 for $400.00 per month. Lesburg also offered to the Flynns an option for an additional twelve-month lease, and a right of first refusal if the parking space were to become available for sale. The Trustees did not approve the 2003 lease agreement.

35. Lesburg entered into an additional agreement with the Flynns dated December 18, 2004 by which Lesburg leased the same parking space to the Flynns for another 12-month period commencing December 1, 2004 at the same $400.00 per month. This lease also included the same refusal right for the Flynns. The Trustees did not approve the 2004 lease agreement.

36. While the Flynns were renting Parking Space 4, I find there was some negotiation among the Flynns and the Lesburgs, particularly Susan Lesburg, about selling Parking Space 4 to the Flynns. I am not convinced these negotiations resulted in bona fide offer for $200,000.00, as suggested by trial exhibit 48, a purported offer to purchase. Nonetheless, I find that discussions were ongoing around the time of Mr. Lesburg’s meeting with the Trustees, and that it was Mr. Lesburg’s intent to consummate the sale of Parking Space 4.

37. After the commencement of this litigation, the Flynns terminated their lease of the parking spot and have discontinued their use of the disputed spot. The Flynns had paid $400.00 a month since December 1, 2003.

38. Proceeds from renting Parking Space 4 have been held in escrow by the Trustees pending resolution of this case. The amounts collected per month have varied from $200 per month to $500 per month.

39. The Condominium is managed by a professional management company called the Copley Group. Barry Quinlan is employed by the Copley Group and is the manager of the 330 Beacon Street building.

40. In 2004, the Trustees adopted new policies governing the outdoor parking areas. The management of the outdoor parking was essentially delegated to the management company by the Trustees. The management company ran the new exterior parking program of providing month-to-month parking on nights and weekends to unit residents. The management company also ensured that unauthorized outdoor parking did not take place, and worked to make sure daytime parking was available for tradespeople, delivery vehicles, and those of contractors.

41. It was following the implementation of the new outdoor parking policy that Mr. Quinlan received a letter from Susan Najjar, dated August 21, 2004. The letter indicates that it was sent in response to being informed of the new policy. It also reports that Lesburg had reserved Parking Space 4 when he sold Unit 36 to the Najjars.

42. On August 27, 2004, the management company sent a letter to Lesburg stating that the Trustees would like a meeting with him to discuss the fact that Unit 36 had been conveyed without Parking Space 4. The letter, signed by Jeff Lambert, a Regional Manager at the Copley Group, states that the Trustees learned of the severance “after sending a notice to Ms. Najjar regarding her use of the visitor’s parking space owned by 330 Beacon Street Condominium Trust.” The Trustees maintain this was the first time they learned that Lesburg had severed Parking Space 4 from Unit 36, and I find as a fact this is true. To be sure, there were a number of occurrences, such as changing locks, and putting new names on the mailboxes, that could reasonably be expected to put the Trustees on notice that Unit 36 had been conveyed to the Najjars. None of these occurrences, however, could be expected to notify the Trustees that the unit had been conveyed without the parking space. To discover this, the Trustees would need to look at the deed, something I find they did not in fact do, nor were they under any duty to do.

43. On September 9, 2004, Lesburg attended the meeting of the Board of Trustees to address for them the issue of Parking Space 4. The discussion took place in executive session, and there is substantial disagreement and conflicting testimony about what took place. Lesburg claims that he was not given the chance to present his request to transfer Parking Space 4 to the Flynns, or to offer other documents to support his position that the Najjar severance and proposed sale were permissible. The Trustees claim that Lesburg was given the chance to speak at this meeting, and that he simply stated he believed he had done nothing wrong. That this was an unproductive, if not counterproductive, exchange is one of the few things on which the parties understandably do agree.

44. There likewise was conflicting testimony about which documents, if any, Lesburg brought with him to the September 9, 2004 meeting. Lesburg recalled bringing the written offer from Mrs. Flynn, but also admitted he might have been mistaken on that point in light of the fact the document is dated September 28, 2004. Lesburg also claims he brought with him and presented the one-page “memo” to the Trustees, dated September 9, 2004, that reads “I hereby request permission to convey one license to one parking space currently #4, such license I currently hold, to another unit owner in this Condominium, such conveyance to become effective on or about 9/15/04, and seek your formal approval thereof.” Mr. DeMarco and Mr. Schorr both testified that they did not see the memo at the meeting. Mr. Schorr testified that the Trustees took no official action on the issue following the September 9, 2004 meeting.

45. I believe Mr. Schorr when he testifies that no official action was taken. I also believe Mr. Lesburg’s testimony that he left the meeting believing his request has been, or would be, denied. And if Lesburg had any doubt about the leanings of the Trustees, he had his answer on November 19, 2004, and again on December 1, 2004, when Lesburg (through counsel) received a letter from the Trustees’ lawyer, which conveyed the Trustees’ position that Lesburg had violated “the letter and intent” of the condominium documents and the law. The Trustees have maintained that their only desire at that point was to remain neutral in the dispute between Lesburg and the Najjars. However, the fact is that they felt, consistent with their position for the duration of this litigation, that Lesburg acted not only improperly, but unlawfully. And regardless of what their intent was in having their counsel send these letters, the only inference from the language used is that Lesburg’s request for approval either was denied, or inevitably would be denied.

46. On June 9, 1975, Muriel Leventhal conveyed her right, title and interest in one indoor parking space to Howard Rubin and Estelle Rubin. The parking space originally had been associated with Unit 61. Leventhal, however, had sold Unit 61 to William Glovsky on May 21, 1975 without this parking space. The Trustees approved this conveyance, executing and recording a certificate of trustees dated June 1, 1977.

47. The Trustees approved a conveyance of one of two parking spaces associated with Unit 165, pursuant to the provisions of an agreement dated March 22, 2002. Robert and Ruth Remis conveyed the space to the Trustees.

48. Stephen and Susan Paine conveyed on July 30, 1990 Units 102, 105, and 106 to Paul Goss along with the licenses to use parking spaces, assigned to Units 102 and 106, while withholding from the conveyances the license for the space assigned to Unit 105. The trustees say they have been unable to locate records that would indicate whether the trustees approved the Pain-Goss conveyance.

49. The October 17, 2000 minutes of the meeting of the Trustees has the following entry: “Parking: The Board approved the swapping of parking spaces between two unit owners.”

50. Despite the Trustees taking the position that the rights to use parking spaces could not be reserved by a selling owner of the unit to which the space formerly was attached (a position that does not reflect the law of the Commonwealth), the Trustees were unable to produce evidence I accept of a single instance in which a request to convey separately a parking space (or storage unit, for that matter) was not approved by the Trustees. Notwithstanding the provisions in the Declaration of Trust requiring Trustee approval, the evidence strongly suggests, and I make the inference and find as a fact, that the Trustees never conducted full-blown “hearings” on parking issues. “Swapping” of parking spaces between unit owners was approved by the Trustees as a matter of course, routinely, and without much inquiry. To the extent that this contradicts the testimony of Mr. Schorr, I do not find Mr. Schorr’s testimony credible on this point.

51. I find little evidence that I credit that the Trustees historically used the approval requirement “to regulate the demand for parking rights to ensure a fair and reasonable allocation of parking licenses as opposed to their consolidation in the hands of fewer unit owners.”

52. As to whether Lesburg believed he was acting according to the customs and practices of the Condominium, or whether Lesburg knew or should have known that prior approval was necessary to convey separately his parking space, I find that Lesburg did not intentionally violate or attempt to evade the approval process. The most reasonable explanation is that Lesburg assumed he needed permission to sell Parking Space 4 to the Flynns, but did not think he needed permission to convey Unit 36 separate from Parking Space 4.

The trustees seek a declaration that they, on behalf of the organization of unit owners, now hold the license to Parking Space 4. The Trustees take the position that the parking space right did not pass to the Najjars (because it was specifically excluded in the deed), and yet did not remain in the grantor, Mr. Lesburg, because that was prohibited by the relevant condominium documents, particularly because after selling Unit 36, Lesburg was not the owner, at least as a matter of strict legal title, of any unit within the Condominium, and because Lesburg failed to obtain the prior approval required by the Declaration of Trust. Lesburg argues that his failure to obtain prior approval of the severance does not warrant a forfeiture of his valuable property. Lesburg also argues that, had he sought prior approval, the Trustees would have had no proper reason to deny his request, that the issue of the nominee trust form of unit ownership is a purely technical deficiency, and that even after trial in the Land Court, the Trustees have failed to offer a valid reason why they would not approve the severance.

The requirement to seek prior approval from the Trustees before conveying or sublicensing a garage parking space analogizes to a restraint on alienation. See Slavin v. Rent Control Bd. of Brookline, 406 Mass. 458 , 463 (1990) (discussing restraints on alienation in commercial and residential leases). Restraints on alienation are generally disfavored, but will be upheld and enforced when reasonable. Id. Lesburg prudently does not argue that this is an unreasonable restraint. The relevant provisions of Section 1 of Article VIII of the Declaration of Trust set up the requirements for a unit owner to convey or sublicense a parking space. They are (1) that the grantee or sublicensee be either a unit owner, or the resident lessee of another unit owner, and (2) that “[a]rrangements concerning or affecting” the transfer must be submitted in advance to the Trustees for approval, and that approval may be withheld “only if in the judgment of the Board of Trustees the granting of such approval will not be in the best interest of the Condominium Trust and Unit Owners; otherwise, such approval shall not be unreasonably withheld or delayed.”

The Trustees argue that legal principles guiding my analysis are those set forth in the decisional law dealing with a landlord’s right of prior approval of an assignment or sublease in the commercial leasing context. In this context, courts have found a breach when the lessee fails to obtain prior approval, even when “the landlord might have had to strain its imagination, or that of its lawyer, to invent a reasonable ground for withholding or delaying consent[.]” Tage II Corp. v. Ducas (U.S.) Realty Corp., 17 Mass. App. Ct. 664 , 666 (1984) (Kass, J.). A violation, even when approval appears to be required pro forma, renders the assigned lease voidable by the lessor. Healthco, Inc. v. E & S Realty Assoc., 400 Mass. 700 , 702 (1987) (citing Restatement (Second) of Prop.: Landlord and Tenant § 15.2 cmt. g (1977)).

The problem for the Trustees is that, even were I to agree that the commercial leasehold cases, and the Restatement provisions dealing with the landlord tenant relationship are sufficiently similar to control in the case at bar, the Trustees are left only with a transfer that is voidable, [Note 10] meaning that the severance of the parking space is undone, and the parking space returns to the grantor, Lesburg. The Trustees have not pointed to a legal mechanism by which Parking Space 4 would somehow be forfeited by Lesburg and land in the controlof the Trustees. This is partly because the decisional law, and those provisions of the Restatement (Second), dealing with leasehold estates, take for granted the existence of the future interest retained by the landlord/lessor, i.e., the reversion at the end of the lease term. In the context of a leasehold, the violation of a covenant in a lease could result in a termination of the leasehold, and the property would revert to the landlord. Here, there is no future estate in the parking license that could revert to the Trustees. In its July 7, 2009 Order, the court characterized these parking rights as licenses, however, the revocable nature of a license should not be confused with an estate of limited duration. The parking spaces in the garage are not “rented” to the individual unit owners; the Trustees are owners of the common elements, and they are not the “landlords” of the parking spaces.

The Trustees argue, citing Baseball Publishing Co. v. Bruton, 302 Mass. 54 , 56 (1938), that “it is the essence of a license that it is revocable at the will of the possessor of the land.” The import, I gather, is that the Trustees feel they may “revoke” Lesburg’s parking license because he violated the rules plainly set forth in the Declaration of Trust. The Baseball Publishing decision, however, goes on to say that “[t]he revocation of a license may constitute a breach of contract, and give rise to an action for damages.” Id. Here, the parking licenses are clearly not revocable at the will of the Trustees without incurring some liability for damages. There is in the evidence no history or practice of treating the parking licenses as revocable at will. To the contrary, the evidence is that a parking license is a valuable asset to individual unit owners, and the only inference I draw is that the unit owners would be surprised-- if not shocked--to learn that the Trustees had decided unilaterally to revoke the owners long-used parking licenses for no cause or compensation. Moreover, the language in the Declaration of Trust, stating that approval may be withheld “only if in the judgment of the Board of Trustees the granting of such approval will not be in the best interest of the Condominium Trust and Unit Owners; otherwise, such approval shall not be unreasonably withheld or delayed[],” is an express limitation on the ability of the Trustees to revoke the parking licenses at will.

I am left with the conclusion, foreshadowed in the July 7, 2009 Order, [Note 11] that the Trustees have no claim to Parking Space 4. There is no legal mechanism, and no procedure set forth in the Declaration of Trust, whereby the failure to obtain approval of a conveyance of a parking space results in a forfeiture. The only inquiry that remains is whether the Trustees would have had a valid reason to deny Lesburg’s request had it timely been made. And I conclude there is no such reason on the evidence presented at trial.

Lesburg faces two potential problems. The first is the fact that he violated the Declaration of Trust by not seeking the consent of the Trustees prior to severing the parking space from Unit 36. The second problem is that Lesburg did not hold record title to any unit in the condominium when he made the purported severance, and thus could not have been the grantee of a parking space.

I am not troubled by the technical failing resulting from Lesburg not being the record owner of a unit in the Condominium. The fact is he was at all times resident in the Condominium, and the sole beneficiary of the nominee trust in which Unit 146 was held. It would not have been reasonable, or in the best interests of the Condominium, for the Trustees to have denied Lesburg’s request permanently on that reason alone. To be sure, the Trustees could have, and indeed should have, required the conveyance be in proper form prior to granting their approval, but nothing in the evidence presented at trial even suggests that, once in proper form, the conveyance or severance would not have been approved. Said another way, the evidence convinces me that it would have been unreasonable for the Trustees to have withheld their assent to a properly formed transfer of the parking right. The evidence is clear that Lesburg intended a valid reservation of Parking Space 4, which would have attached it to the record owner of Unit 146, Susan Lesburg.

The Trustees offer no other reason why they would not have allowed Lesburg’s request. There was testimony about a general desire to avoid having many parking spaces consolidated in the hands of a few unit owners, but there was no evidence that in this particular instance Lesburg’s request would on that basis have been troubling to the Trustees. I am not at all persuaded by the Trustee’s argument that today, a number of years after the severance, the Trustees would have denied Lesburg’s request because of all the trouble it caused. The inquiry, rather, is whether the Trustees would have been reasonable in turning down, back in 2002, Lesburg’s request to convey separately Parking Space 4. Following from this determination, I conclude that, in equity, the flawed reservation of the right to use parking Space 4 by Michael Lesburg at the time he conveyed Unit 36 to the Najjars ought not supply a reason for him not to be able to hold that right as associated with another unit within the Condominium occupied by him or owned beneficially or otherwise by him and or his wife. The judgment that will enter in this case will clarify that right as to Parking Space 4.

Finally, the Trustees seek an award of attorneys’ fees under G.L. c. 183A, § 6 (a) (ii), which provides that “If any expense is incurred by the organization of unit owners as a result of the unit owner’s failure to abide by... the requirements of the master deed, trust, by-laws, restrictions, rules or regulations, or by the misconduct of any unit owner..., the organization of unit owners may assess that expense exclusively against the unit owner....” The Trustees provide some caselaw to support their position that attorneys’ fees are a type of “expense” contemplated under that section, see Brough v. Juniper Finance Corp., 57 Mass. App. Ct. 1108 (2003), 2003 WL 328693 (rule 1:28), however, I am aware of no support for the proposition that Lesburg’s relatively benign failure to seek prior approval amounts to the type of misconduct contemplated by the statute. In Brough v. Juniper Finance Corp., the “misconduct” for which attorneys’ fees were awarded was the defendants’ use of their residential unit for commercial photo processing, which the trial judge found was “noxious or offensive” under the condominium bylaws, and violated a master deed prohibition on commercial use. Id. at *1-2. Moreover, I am not convinced that Lesburg alone is the proximate cause of this protracted legal battle and the undoubtedly substantial legal bills incurred on behalf of the Trustees. For these reasons, I conclude that attorneys’ fees are not warranted under these provisions of chapter 183A.

Judgment accordingly.