RUSSELL SMITH individually and RUSSELL SMITH, JENNIFER BENNETT and BRIAN BURROUGHS as trustees of the 246 MARLBOROUGH STREET CONDOMINIUM TRUST v. LAURENCE A. MILLS as trustee of the VARLEY REALTY TRUST and THOMAS STEPHANS [Note 2]

On January 9, 2012, for the reasons set forth in the notice of docket entry and the court’s prior orders as referenced in that notice: [Note 3] (1) defendant Varley Realty Trust’s counterclaims were dismissed, (2) the court found for the plaintiffs on the merits of their claims, (3) an evidentiary hearing was set for February 9, 2012 to determine the amount of the plaintiffs’ damages, and (4) the motion of the Trust’s then-counsel to withdraw from the case was allowed. Notice of Docket Entry (Jan. 9, 2012). See G.L. c. 185, §25 (powers of land court); G.L. c. 185, §25A (power of land court to enforce orders, sentences, judgments and decrees; contempts); Ayash v. Dana-Farber Cancer Institute, 443 Mass. 367 , 401-404 (2005) (court’s inherent powers to impose sanctions for violation of orders).

The evidentiary hearing was held as scheduled on February 9, 2012. The plaintiffs were represented by counsel. The Trust was represented by new counsel, first retained on February 6, 2012, who filed his appearance and a motion to continue the evidentiary hearing on February 8, just one day before the hearing. Motion to Continue (Feb. 8, 2012). The motion to continue was opposed by the plaintiffs (Plaintiffs’ Opposition to Defendant’s Motion to Continue, Feb. 8, 2012) and denied by the court (Order, Feb. 9, 2012). The hearing then proceeded.

This case concerns a condominium parking space — specifically, Parking Space C of the 246 Marlborough Street Condominium. Under the Master Deed and case law, the space belongs to the plaintiff condominium association and its use to the owner of the associated condominium unit (Unit #7, presently owned by plaintiff Russell Smith). See, e.g., Howell v. Glassman, 33 Mass. App. Ct. 349 (1992); Schwartzman v. Schoening, 41 Mass. App. Ct. 220 (1996); McElligott v. Lukes, 42 Mass. App. Ct. 61 (1997). Having sold the unit to Mr. Smith [Note 4] after purporting to sever the parking space, at a discount from the price it wanted for that unit if the parking space was included, the Trust claimed the right to an irrevocable license to the space or, in the alternative, to be compensated for its value. The plaintiffs disagreed, and the Trust’s right to assert those claims at trial was barred by the court’s August 15, 2011 and January 9, 2012 orders for the reasons set forth in those orders. The plaintiffs’ permission (either express or implied) for the Trust to use the parking space was terminated by letter dated November 13, 2006. (Trial Ex. 1). The Trust had been renting the space to third-parties for the four years prior to that time (four years of rental payments it has kept), as well as the entirety of the time from its receipt of the November 13, 2006 letter to August 31, 2011. See Memorandum and Order on Counsel for Defendant Varley Realty Trust’s Motion to Withdraw at 2-3 (Aug. 15, 2011). The damages sought by the plaintiffs were thus limited to the November 14, 2006 — August 31, 2011 rental payments. Three exhibits were offered and received into evidence: (1) the November 13, 2006 letter (Trial Ex. 1), [Note 5] (2) defendant Varley Realty Trust’s History of Parking Space Rent [as] Required by Court Order of April 28, 2011 for Pre-Trial Conference on June 1, 2011 (sworn-to by the trustee of the Trust, Mr. Laurence Mills) (Jun. 1, 2011) (Trial Ex. 2), and (3) a summary exhibit of the rents received by the Trust from November 14, 2006 — August 31, 2011, totaling $15,182.50 (Trial Ex. 3). The plaintiffs sought a monetary judgment in that amount, plus interest and costs, and a declaratory judgment confirming their ownership and control of the parking space, free of all claims from the Trust.

The Trust filed a post-trial opposition, raising the following points.

First, the Trust sought to limit the Judgment to the defendant Trust and not include Laurence Mills, the trustee, individually. This is correct, to this extent. Mr. Mills, individually, was previously dismissed as a defendant in this case and I reaffirm that dismissal. [Note 6] This does not mean, however, that Mr. Mills is forever shielded from any possibility of liability for the amount of the Judgment against the Trust or any part thereof. He may, for example, be liable for any distributions of the rental amounts he collected, plus interest thereon, depending upon the circumstances and recipients of those distributions —an issue I need not and do not reach at the present time. That issue will arise, if ever, only if the underlying Judgment proves uncollectible from the Trust, in whole or in part.

Second, the Trust sought to make clear that a $15,182.50 monetary judgment in favor of plaintiff Russell Smith (as the owner of Unit #7 and thus of the associated right to its parking space — the monetary judgment plaintiffs seek), also binds the plaintiff condominium association, preventing it from obtaining any additional money for itself. This is correct, and the Judgment will so reflect.

The Trust’s other arguments lack merit. Just because the November 13, 2006 letter was sent on behalf of the condominium association does not mean that Russell Smith, as unit owner, cannot recover monetary damages from and after that date. He has the exclusive right to use that parking space under the condominium Master Deed, and he is thus the party monetarily damaged. The condominium association was a proper party to send the “cease and desist” letter to the Trust because the association owns the parking space (it is condominium common area). The letter thus worked for both. The Trust’s contention that “mutual mistake” and “unjust enrichment” either limit or bar a monetary recovery by Mr. Smith, individually, is an impermissible attempt to avoid the effect of the court’s January 9, 2012 order, which found for the plaintiffs on the merits of their claims and dismissed the Trust’s counterclaims.

In sum, for the foregoing reasons, plaintiff Russell Smith, individually, shall recover $15,182.50, plus costs and interest, from the Trust. Also, a declaration shall enter that:

• Parking Space C is an appurtenance to Unit #7 of the 246 Marlborough Street Condominium as set forth in the Condominium’s Master Deed recorded September 10, 1980 in the Suffolk County Registry of Deeds in Book 9529, Page 1 (the “Master Deed”). As an appurtenance to Unit #7, Parking Space C cannot be severed from Unit #7 without there being a duly authorized and recorded Amendment to the Master Deed.
• Paragraph 5 of the Unit Deed from Laurence Mills, Trustee of Varley Realty Trust to Russell Smith dated November 22, 2002 and recorded in the Suffolk County Registry of Deeds in Book 29917, at Page 4, purporting to allow Mr. Mills, as Trustee of Varley Realty Trust, to retain the continued exclusive right and easement to use Parking Space C as well as the right to lease, assign, convey or transfer the exclusive right and easement to use Parking Space C to another person or entity other than Mr. Smith, constitutes an impermissible attempt to sever the right to use Parking Space C from Unit #7 and is hereby stricken and declared void.
• The purported “Assignment” of Parking Space C from Russell D. Smith to Laurence A. Mills, Trustee of the Varley Realty Trust, dated November 22, 2002, and recorded with the Suffolk County Registry of Deeds at Book 29917, at Page 42, is hereby declared invalid and void.
• The exclusive right to use Parking Space C of the 246 Marlborough Street Condominium is vested in the owner of Unit #7 of the 246 Marlborough Street Condominium, presently plaintiff Russell D. Smith, whose Unit Deed is recorded with the Suffolk County Registry of Deeds in Book 29917, at Page 4. Said Parking Space is hereby declared free and clear of any claim made by defendant Laurence Mills, individually or as Trustee of the Varley Realty Trust.
• Any and all lease agreements between Mr. Mills, individually or as Trustee of Varley Realty Trust and any other person with respect to the use of Parking Space C are hereby declared invalid and void. This includes any such agreement between the Varley Realty Trust and defendant Thomas Stephans.
• Mr. Mills, individually or as Trustee of Varley Realty Trust, is hereby permanently enjoined from using that Parking Space, allowing others to use it, or collecting any rents for its use unless and until such time, if ever, as he becomes the owner of Unit #7.
• All other claims and counterclaims of the parties are dismissed, with prejudice, except those related to collection of the Judgment to be entered herein.

Judgment shall enter accordingly.

SO ORDERED.