GERALD R. GRASSO, GLORIA J. GRASSO, and JANET HINTLIAN v. DOUGLAS COHEN, CERISE JALELIAN, and JOAN ZEOLI, Individually and as Trustees of the CENTRE VILLAGE CONDOMINIUM ASSOCIATION and CENTRE VILLAGE CONDOMINIUM ASSOCIATION

Plaintiffs initiated this action on November 24, 2008, by filing a six-count verified complaint claiming breach of fiduciary duty, negligence, and encroachment and seeking damages, declaratory judgment, and injunctive relief. Defendants moved to dismiss Plaintiffs’ complaint in its entirety on January 20, 2009, and Plaintiffs opposed the motion through a written opposition filed on March 2, 2009. This court held a hearing on April 6, 2009, at which all parties were heard.

The Centre Village Condominium (Centre Village) is a condominium created pursuant to the provisions of G. L. c. 183A, and by Master Deed dated October 31, 1975, recorded in the Middlesex County Registry of Deeds in Book 12888, at Page 365. The Centre Village Condominium Trust (Centre Village Trust) was created by Declaration of Trust dated October 31, 1975, recorded in said Deeds in Book 12888, at Page 381. Pursuant to Section 10 of the Master Deed, the Centre Village Trust is empowered, through the organization of unit owners, to manage and regulate Centre Village. The trustees of the Centre Village Trust are the members of the governing body of Centre Village. Plaintiffs are unit owners of and reside at Centre Village. As owners of units at 25 Lois Lane (Building 7) and 21 Lois Lane (Building 5), respectively, the Grassos and Ms. Hintlian seek reimbursement from the trustees for expenses incurred by them in connection with certain repair work done to common areas. These claims are set forth in Counts I and II of the complaint. In Count III, all Plaintiffs allege the trustees have been negligent in their duty to keep the common areas in good condition, which has caused Plaintiffs to expend their own money to fund necessary repair work.

For the Grassos, their claim began in May of 2006, when Plaintiff Gerald Grasso and Defendant Cohen observed damage to the common area adjacent to the Grassos’unit. Mr. Grasso subsequently hired Magee Builders to perform the necessary repairs at a cost of $20,585. By letters dated September 25, 2006, and November 29, 2006, Mr. Grasso requested that the trustees reimburse him for the repair work. On October 5, 2006, the trustees responded by letter refusing to reimburse Mr. Grasso for the expenses incurred, as Mr. Grasso had “elected to conduct the work without following the procedure established by the Trustees Association, including obtaining the Trustees’ estimate of the cost. . . .” Similarly, in 2004, Plaintiff Hintlian had sought reimbursement from the trustees for repair work she had paid for that was done to stairs in the rear of Building 5, the building in which her unit is located. In December of 2004, the trustees voted to deny reimbursement for the work that Ms. Hintlian had financed.

In Count IV, Ms. Hintlian is also seeking relief relating to the trustees’ installation of pipes underneath the lawn adjacent to Ms. Hintlian’s unit. In May 2008, the trustees caused the installation of a sprinkler system to service several Centre Village units after a vote approving the installation of sprinklers. In so doing, they authorized pipes to be installed underneath the exclusive use lawn area adjacent to Plaintiff Hintlian’s unit. The trustees granted the easements necessary to install piping in the lawn area, including Ms. Hintlian’s. The installation of the pipes did not entail any digging trenches or excavating of the lawn areas. By letter dated August 8, 2008, Plaintiff Hintlian requested that the trustees remove the underground pipes from the lawn area adjacent to her unit. The trustees refuse to remove them.. Count V sets forth a request for declaratory relief, wherein Plaintiffs ask the court to nullify Rule 15 of the Condominium Amended Rules and Regulations dated November 8, 2006. Rule 15 provides “Unit owners are solely responsible for, . . . replacing windows, screen doors, bulkheads, basement door overhangs and deck doors for their unit.”

Defendants have moved pursuant to Mass. R. Civ. P. 12(b)(1), to dismiss Counts I, II, III, and V of Plaintiffs’ complaint for a lack of subject matter jurisdiction. Additionally, Defendants have moved pursuant to Mass. R. Civ. P. 12(b)(6), to dismiss Counts IV and VI for failure to state a claim upon which relief can be granted.

Because Defendants have challenged the court’s subject matter jurisdiction as to Counts I, II, III, and V under Mass. R. Civ. P. 12(b)(1), this court must address the factual issues pertaining to jurisdiction. Once jurisdiction has been properly challenged, “a rule 12(b)(1) motion supported by affidavits places the burden on the plaintiff to prove jurisdictional facts.” Callahan v. First Congregational Church of Haverhill, 441 Mass. 699 , 709-10 (2004) (quoting Hiles v. Episcopal Diocese of Massachusetts, 437 Mass. 505 , 516 n.13 (2002)). “Under this factual challenge to the jurisdiction, the plaintiff’s jurisdictional averments in the complaint are entitled to no presumptive weight . . . .” Hiles, 437 Mass. at 516 (quoting Valentin v. Hospital Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001) (internal quotations omitted)).

Counts I, II, III, and V of Plaintiffs’ Complaint are claims seeking: (1) reimbursement for repair expenses resulting from the trustees’ alleged negligence, and (2) a declaration that Rule 15 of the Centre Village Rules and Regulations is in violation of the Master Deed. The jurisdiction of this court is set forth in G. L. c. 185, § 1, and does not encompass claims sounding in contract or tort where there is no right, title, or interest in land at issue. Although Plaintiffs argue that this court has jurisdiction over these claims because Plaintiffs seek equitable relief, that assertion is misplaced. This court has jurisdiction over only those “matters cognizable under the general principles of equity jurisprudence where any right, title or interest in land is involved.” Ritter v. Bergmann, 72 Mass. App. Ct. 296 , 299 (2008) (emphasis added); G. L. c. 185, § 1(k). Plaintiffs’ claims raise issues regarding monetary damages, negligent performance of duties, and improper promulgation of condominium rules and regulations, none of which involve right, title, or interest in land. Consequently, Defendants’ motion to dismiss is ALLOWED, as to Counts I, II, III, and V.

As the moving party seeking to dismiss Counts IV and VI under Mass R. Civ. P. 12(b)(6), Defendants bear the burden of showing that Plaintiffs have failed to state a claim upon which relief can be granted. The standard of review for a motion to dismiss under Mass. R. Civ. P. 12(b)(6), was refined by the Supreme Judicial Court in Iannacchino v. Ford Motor Company, 451 Mass. 623 (2008). Prior to Iannacchino, “[a] motion to dismiss [would have been] granted only where it appear[ed] with certainty that the non-moving party [was] not entitled to relief under any combination of facts that he could prove in support of his claims.” Sullivan v. Chief Justice for Administration and Management of the Trial Court, 448 Mass. 15 , 21 (2006). However, in Iannacchino, the Court adopted the federal standard, requiring a complaint to have “factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief. . . .” Iannacchino, 451 Mass. at 636 (quoting Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1966 (1977)). Under this new standard, “to survive a motion to dismiss, a complaint must contain factual allegations enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true.” Flomenbaum v. Commonwealth, 451 Mass. 740 , 751 n. 12 (2008) (internal quotations and citations omitted).

Since this case was filed after Iannacchino was decided, the new standard applies. The court can, under the new standard, take “the allegations in the complaint, as well as such inferences as may be drawn therefrom in the plaintiff[’]s favor, . . . as true.” Iannacchino, 451 Mass. at 625, n. 7. However, “the court [does not] accept legal conclusions cast in the form of factual allegations.” Schaer v. Brandeis University, 432 Mass. 474 , 477 (2000) (internal citations and quotations omitted). Under this new standard, this court cannot conclude that Plaintiffs are entitled to any form of legal or equitable relief.

In Count IV of the Complaint, Plaintiff Hintlian claims that the trustees and the Centre Village Condominium Association (Association) have unlawfully encroached upon her exclusive use of the lawn area adjacent to her unit by installing underground pipes. G. L. c. 183A, §5(b)(2) provides that the “organization of unit owners, acting by and through its governing body, shall have the power and authority . . . to [g]rant, modify and amend easements through, over and under the common areas and facilities. . . provided, however, that the consent of at least 51 per cent of the number of all mortgagees holding first mortgages on units within the condominium who have requested to be notified thereof. . .is first obtained; and provided, further, that at the time of creation of such easement and at the time of modification or amendment of any such easement, such easement and any such modification or amendment shall not be inconsistent with the peaceful and lawful use and enjoyment of the common condominium property by the owners thereof.” [Note 1]

Plaintiff Hintlian argues that because she has exclusive use of the lawn area it is not a common area as defined by G. L. c. 183A, § 5(b)(2) or the Master Deed. This court disagrees. Granting one unit owner exclusive use of a common area does not remove the area from common ownership and transfer a fee simple ownership of it to the unit owner. While Plaintiff Hintlian correctly notes “[e]xclusive use is not a characteristic of a license, but is a primary characteristic of a lease,” Kaplan v. Boudreaux, 410 Mass. 435 , 442 (1991), it does not follow that the lawn area is no longer a common area. Section 6 of the Master Deed, entitled “Description of the Common Areas and Facilities” states in relevant part that the “common areas and facilities of the Condominium consist of the entire property, including. . . (c) [a]ll land, lawns, gardens. . .and other improved or unimproved areas not within the Units (subject to exclusive use areas. . . ).” Further, section 4 of the Master Deed, entitled “Description of Units,” states in relevant part “[e]ach of the Units shall have as appurtenant thereto the exclusive right and easement, in and with respect to that portion of the area at the side and rear of the Unit. . . to use the same for residential purposes, including gardening. . . .” The Master Deed makes clear that Ms. Hintlian has an easement for exclusive use of the lawn area adjacent to her unit, not a fee simple interest. “Treated as an easement appurtenant to [Ms. Hintlian’s unit], the right to exclusive use of the [lawn area] is, by definition, incapable of existence separate and apart from the particular land to which it is annexed.” Schwartzman v. Schoening, 41 Mass. App. Ct. 220 , 223 (1996) (internal quotations omitted). As a result, the lawn area remains a common area and the trustees were within their rights to grant an easement under the lawn area to facilitate installation of piping for a sprinkler system, provided that the use of the sprinkler easement does not interfere with Ms. Hintlian’s exclusive use of her lawn area. She has not alleged any facts which would establish interference with her use of the lawn area. As the pipes are underground and as their installation caused no lasting change in the character of the lawn area, the sprinkler easement does not interfere with Ms. Hintlian’s exclusive use easement. Accordingly, Defendants’ motion to dismiss is ALLOWED, as to Count IV. [Note 2]

Plaintiffs finally argue in Count VI that because the easements granted for the sprinkler system were recorded as amendments to the Master Deed, they required the approval of 75% of the unit owners and seek a declaration that because no such approval was obtained the easements are invalid. Although Plaintiffs correctly point out that the Master Deed requires that 75% of unit owners approve any amendment, G. L. c. 183A, § 5 does not require that the unit owners approve of any easement granted in accordance with its provisions. As this court has noted, it is G. L. c. 183A, § 5 which gives the trustees the authority to grant such easements. As noted above, G. L. c. 183A, § 5 only requires that “the consent of at least 51 per cent of the number of all mortgagees holding first mortgages on units within the condominium who have requested to be notified thereof. . .is first obtained” and that “such easement and any such modification or amendment [is not] inconsistent with the peaceful and lawful use and enjoyment of the common condominium property by the owners thereof.”

Consequently, the fact that a 75% approval was not obtained prior to the grant of the sprinkler easement does not render the easement invalid. Accordingly, Defendants’ motion to dismiss is ALLOWED, as to Count VI. Judgment to issue accordingly.

Karyn F. Scheier

Chief Justice

Dated: August 21, 2009