SEWALL-MARSHAL CONDOMINIUM ASSOCIATION v. 131 SEWALL AVENUE CONDOMINIUM ASSOCIATION.

Introduction

This action was initiated with the filing of a complaint on March 1, 2007. A First amended Complaint was filed thereafter on November 15, 2007. The case concerns a dispute between two abutting condominium developments located in the Coolidge Corner area of Brookline, Massachusetts. Each was “converted from rental use by a single developer in or about September through November of 1978.” [Note 1] The essence of the dispute concerns the enforceability of certain parking arrangements that have been in place since the submission in 1978 of each condominium development to the provisions of G.L. c. 183A. Those parking arrangements have been memorialized in a written agreement of December 29, 1978 that was executed under seal by the respective condominium boards of managers. The plaintiff filed a complaint and a motion for preliminary injunction. The court, (Lombardi, J.) allowed the motion for preliminary injunction on March 16, 2007. The preliminary injunction, inter alia, restrained the defendant from requiring any owner of a Sewall-Marshal Unit to execute any parking license, contract or agreement. In its amended complaint, the plaintiff seeks, inter alia, a judgment pursuant to G.L. c. 231A declaring its enforceable rights “to continue to park in 7 garage spaces and 8 outside spaces without costs.” [Note 2]

At a trial conducted over a three day period, September 16, 2013, September 17, 2013 and September 18, 2013, the court heard the testimony of Jeffrey Stern, Lawrence Onie, Jules Marc Fried, Richard A. Rosen, Richard Eckaus, James Gallagher, Hinda Goodstein, Michael Rozenblum and Nagopal Venna. Following closing arguments, post-trial briefs were submitted on June 6, 2014. The matter was thereafter taken under advisement. This court allowed the admission of forty-nine exhibits into the trial record. Those exhibits are incorporated by reference into this decision for purposes of appeal. The parties have submitted requests for findings of fact and rulings of law. To the extent they have been incorporated herein, they are hereby allowed. They are otherwise denied. Requests for directed verdict have been denied. [Note 3]

Findings Of Fact

On all credible testimony, exhibits, stipulations and other evidence properly introduced at trial or otherwise before it, and the inferences reasonably drawn therefrom, this court finds as follows:

1) Sewall-Marshal Condominium (Sewall-Marshal/plaintiff) was created by Master Deed, (Sewall-Marshal Master Deed) pursuant to the provisions of G.L. c. 183A and registered with the Norfolk County Registry District of the Land Court (Registry) on October 2, 1978, at which time its Bylaws were also received for registration.

131 Sewall Avenue Condominium (131 Sewall/defendant) was created by Master Deed, [Note 4] (131 Sewall Master Deed) pursuant to the terms of G.L. c. 183A, and registered with the Registry in Book C16 on November 13, 1978, at which time its Bylaws were also received for registration.

2) With certain exceptions, the organizing condominium documents of the Sewall-Marshal Condominium and the 131 Sewell Avenue Condominium mirror each other.

3) Prior to the conversion to condominium use, the structures at issue had consisted of rental units owned and operated by “Samuel Stern in his two company names.” [Note 5]

4) The Sewall-Marshal Condominium Master Deed describes the property as consisting of “four brick masonry and wood construction buildings being three stories…”

5) The Sewall-Marshal Condominium Master Deed Description of the Common Areas and Facilities includes the following: “All land, lawns, gardens, walkways, driveway, parking and other improved or unimproved areas….”

6) The 131 Sewall Avenue Condominium Master Deed describes the property as consisting of “brick masonry building seven stories at its highest elevation, and having elevations of six and four stories….”

7) The 131 Sewall Master Deed describes the common area and facilities as including “the basement parking garage” as well as “[a]ll land, lawns, gardens, walkways drive-way, parking and other improved or unimproved areas….”

8) The 131 Sewall Master Deed contains the following introduction as does the Sewall-Marshal Master Deed:

Roger W. Stern and Matthew W. Stern, Trustees u/d/t June 30, 1977, registered in Norfolk Registry District of the Land Court as Doc. 370835 (the “Sponsors”) Being the sole owners of the Land in Brookline…., do hereby, by duly executing and recording this master Deed, submit said land, together with the buildings and improvements erected thereon…to the provisions of Chapter 183A of the General Laws…, and do hereby create, with respect to the property a condominium to be governed by and subject to the provisions of said Chapter 183A….

9) The 131 Sewall Master Deed establishes in paragraph 8 thereof, a Board of Managers [Note 6] (Board) described as follows:

An unincorporated association of Unit Owners through which the Unit owners will manage and regulate the Condominium and has enacted By-Laws pursuant to said Chapter 183A.… The name of the association is “131 Sewall Avenue Condominium.” The names of the initial Board of Managers of the association are Jeffrey A. Stern[,] Matthew W. Stern[, and] Roger W. Stern.

Paragraph 8 of the Sewall-Marshal Master Deed establishes a Board of Managers in virtually identical terms. [Note 7]

10) The Powers and Duties of the Board as set forth in s. 2.2 of the 131 Sewall Bylaws, include the following:

The Board shall act for and on behalf of the Condominium in all matters unless a particular matter is required by the Master Deed or these By-Laws to be decided by the Unit Owners. …. Such powers and duties of the Board shall include but not be limited to the following:

(a) Operation, care, upkeep, repair and maintenance of the Common Elements….

(o) Leasing, licensing and otherwise allocating parking spaces to the use of Unit Owners and others …. Without limiting the generality of the foregoing, the Board is expressly authorized to enter into an agreement with the Sewall-Marshal Condominium, whereby the 131 Sewall Avenue Condominium shall have the right to use parking spaces located within the Sewall-Marshal Condominium, all as may be agreed to by the boards of the Condominium. [Note 8]

The Powers and Duties of the Board as set forth in s. 2.2 of the Sewall-Marshal Bylaws is virtually identical to those set forth in the 131 Sewall Bylaws, but for subsection (o) which reads as follows:

(o) Leasing, licensing and otherwise allocating parking spaces to the use of Unit Owners and others … Without limiting the generality of the foregoing, the Board is expressly authorized to enter into an agreement with the 131 Sewall Avenue condominium whereby the Sewall-Marshal Condominium shall have the right to use parking spaces located within the 131 Sewall Avenue Condominium, all as may be agreed to by the Boards of the Condominium. (emphasis added)

11) Section 2.11 of the 131 Sewall Bylaws [Note 9] contemplates that the Board of Managers will contract on behalf of the Condominium. It provides in pertinent part, as follows;

….It is intended that the members of the Board of Managers shall have no personal liability with respect to any contract made by them on behalf of the Condominium, and the Unit Owners shall indemnify and hold harmless each of the members of the Board of Managers against all contractual liability to others arising out of contracts made by the Board of Managers on behalf of the Condominium unless any such contracts shall have been made in bad faith or contrary to the provisions of these By-Laws.

It shall be permissible for the original Board of Managers, some of whom are members of or employed by the sponsor, to contract with the sponsor and affiliated corporations without liability for self-dealing…. (emphasis added)

Once again, Section 2.11 of the Sewall-Marshall Bylaws is virtually identical to the foregoing.

12) Paragraph 12 of the 131 Sewall Master Deed provides in relevant part, as follows:

All present and future owners, tenants, visitors, servants, and occupants of Units shall be subject to, and shall comply with, the provisions of this Master Deed, the Unit Deed, the By-Laws and the rules and regulations thereunder, as each may be amended from time to time.

The acceptance of a deed or conveyance or the entering into occupancy of any Unit shall constitute an agreement that, (a) the provisions of this Master Deed, the Unit Deed, the By-Laws and the rules and regulations, as each may be amended from time to time, are accepted and ratified by such person, and all such provisions shall be deemed and taken to be covenants running with the land and shall bind any person having at any time any interest or estate in such Unit, as though such provisions were recited and stipulated at length in each and every deed or conveyance or lease thereof, and (b) a violation of the provisions of this Master Deed, the Unit Deed, By-Laws or rules and regulations by any person shall be deemed a substantial violation of the duties of the Condominium Unit Owner.

Paragraph 12 of the Sewall-Marshal Master Deed is virtually identical to the foregoing.

13) Sewall-Marshal and 131 Sewall are situated on abutting parcels of registered land in Brookline, Massachusetts.

14) Paragraph 11 of the 131 Sewall Master Deed Provides in relevant part, as follows:

Each unit owner shall have an easement in common with the owners of all other Units to use all pipes, wires…and other Common Elements [common area and facilities provided for in the Master Deed] [Note 10] located in any of the other Units or elsewhere on the property and serving his Unit. (emphasis added)

Paragraph 11 of the Sewall-Marshal Master Deed contains identical language.

15) Sewall-Marshal contains 16 Condominium Units including the so-called Superintendent’s Unit, # 20-1. The parking area is part of the common area, as provided in section 4(c) of the Sewall-Marshall Master Deed. [Note 11]

16) 131 Sewall Ave. contains 51 Condominium Units. At the same time, it has approximately 60 parking spaces. [Note 12] The parking areas, including a parking garage, are part of the common area, as provided in sections 4(b) and 4(c) of the 131 Sewall Ave. Master Deed. [Note 13]

17) At the time of the creation of the condominiums there were, in the aggregate, 62 parking spaces between the two condominiums. There are currently, in the aggregate, a total of 68 parking spaces. [Note 14]

18) Both Sewall-Marshall and 131 Sewall Ave. were developed and created by Roger W. Stern and Matthew W. Stern (Stern Family Trust).

19) The Master Deeds and Bylaws (“the condominium documents”) for both Sewall-Marshal and 131 Sewall Ave. were prepared by the same attorney,

20) The Master Deed of Sewall-Marshal includes the following definition of Board of Managers:

Board of Managers. An unincorporated association of Unit Owners through which the Unit Owners will manage and regulate the Condominium has been formed and has enacted By- Laws pursuant to said Chapter 183A. The name of the association is “Sewall-Marshal Condominium”. The names of the initial Board of Managers of the association are: Jeffrey A. Stern, Matthew W. Stern, Roger W. Stern” [Note 15]

21) The Master Deed of 131 Sewall Ave. includes the following definition of Board of Managers:

Board of Managers. An unincorporated association of Unit Owners through which the Unit Owners will manage and regulate the Condominium has been formed and has enacted By- Laws pursuant to said Chapter 183A. The name of the association is “131 Sewall Avenue Condominium”. The names of the initial Board of Managers of the association are: Jeffrey A. Stern, Matthew W. Stern, Roger W. Stern” [Note 16]

22) The 131 Sewall Avenue Condominium By-Laws, submitted to registration on January 13, 1978 with the Registry at Book C16, provide in relevant part as follows:

1.2 …All present and future owners, mortgagees, lessees and occupants of Units and their employees, and any other persons who may use the facilities of the Condominium in any manner are subject to these By-Laws, the Master Deed, and the rules and regulations referred to in Section 5.12. The acceptance of a deed, conveyance, letting or occupancy of a Unit shall constitute an agreement that these By-Laws, the Master Deed and the rules and regulations, as they may be amended from time to time, are ratified and accepted.

2.1 Board of Managers

2.2 Powers and Duties. The Board shall act for and on behalf of the condominium in all matters unless a particular matter is required by the Master Deed or these By-Laws to be decided by the Unit Owners. The Board shall have the powers and duties necessary and proper for the administration of the affairs of the Condominium, and may do all acts and things related thereto except those specifically restricted by law or by the Master Deed or by these By-Laws. Such powers and duties of the Board shall include, but shall not be limited to the following:

(a) Operation… of the Common Elements; …

(e) Adoption, amendment and administration (including waiver) of reasonable rules and regulations covering the operation and use of the Condominium,…

(g) …[P]urchasing or leasing a Unit or other residential quarters in the Condominium, or in the vicinity but not within the Condominium, for use by a superintendent;…

(h) Leasing and, as provided in Section 19 of Chapter 183A, conveying any Common Elements;…

2.4 Original Board of Managers. …the first Board of Managers shall be designated by the Sponsor and shall consist of three Managers designated for an initial term as hereafter defined. …..

2.11 Liability of Board of Managers.

The members of the Board of Managers shall not be liable to the Unit owners for any mistaken judgment, negligence, or otherwise, except for their own individual willful [sic] misconduct or bad faith.

4.7 Agreements, Contracts, Deeds, Checks, etc.

All agreements, contracts, deeds, leases, and other instruments of the Condominium….shall be executed by any two officers of the Condominium or by any one office and such other person or persons as may be designated by the Board of Managers.

1.9 Certification. …. Any instrument signed by a majority of the Board named in the master Deed or a majority at any time of the members of the Board as they appear on the record and duly attested as the act of the Condominium may be relied on as conclusively establishing that such instrument was the free act of the Condominium, and shall be binding upon the Condominium.…

23) On December 29, 1978, prior to the conveyance of any condominium unit, the respective Boards of Managers for each condominium, entered into a written agreement captioned as follows:

131 SEWALL CONDOMINIUM – SEWALL-MARSHAL CONDOMINIUM PARKING AGREEMENT [Note 17]

24) The Parking Agreement (Agreement) was executed as a sealed instrument by the Board of Managers of both condominiums. At the time, the membership of each Board of Managers was identical, i.e. Roger Stern, Matthew W. Stern and Jeffrey A. Stern. [Note 18]

25) The Parking Agreement constituted a pooling arrangement that aggregated the available parking spaces at the two Condominiums into what is essentially a common parking area. The Agreement provides “...for both Condominiums respective rights to use the indoor and outdoor parking spaces now located within the Condominiums.” [Note 19]

26) The Parking Agreement provides in relevant part as follows:

WHEREAS, both Condominiums desire to provide for their respective rights to use the indoor and outdoor parking spaces now located within the Condominiums, all as hereafter provided.

NOW, THEREFORE, the parties agree as follows:

2. So long as the 131 Sewall Avenue Condominium and the Sewall-Marshal Condominium shall be condominiums subject to Chapter 183A, or similar successor provisions of the Massachusetts General Laws, Sewall-Marshal Condominium shall have the right, without cost, to use of 20% of the total number of parking spaces located in both Condominiums, and 131 Sewall Avenue Condominium shall have the right, without cost, to use of 80% of the total number of parking spaces located in both Condominiums. [Note 20]

3. The Boards of Managers, or their designees, of the two Condominiums shall meet during the month of December [Note 21] as necessary to agree upon the particular spaces which the condominiums shall have the right to use under section 1 for the next year. If the parties cannot so agree, then either party may demand arbitration of the matter, and any and all other disputes which may arise hereunder …. [Note 22]

4. The Boards of Managers of the respective Condominiums shall be solely responsible for assigning, letting or otherwise allocating use of the parking spaces allotted to their Condominium under section 1, and shall likewise be responsible for causing persons using such spaces to conform to such reasonable rules regarding use of parking spaces as the Boards of Managers may apply to all parking spaces.

5. This agreement shall continue in force as aforesaid unless amended by written agreement signed by both parties. (emphasis added)

27) The Parking agreement was never submitted to registration or otherwise placed on record.

28) It was the practice when units were first sold in each condominium that certain documents including the Parking Agreement were incorporated by reference into the relevant purchase and sale agreement. [Note 23]

Laurence Onie, who purchased the first Sewall-Marshal Condominium Unit testified that he received an unsigned copy of the Parking Agreement as part of the marketing proposal for the Sewall-Marshall Condominium. [Note 24] He believed that he subsequently received a signed copy of the Parking Agreement on the “day of the closing.” [Note 25] His Unit Deed was received for registration on January 2, 1979.

Richard A. Rosen closed on his Sewall-Marshal Unit on September 1, 1979. When first considering the purchase, he received a copy of the Sewall-Marshal Presentation marketing materials. The Presentation incorporates the Parking Agreement by reference. [Note 26]

Richard Echaus, a resident of 131 Sewall since approximately 1988, is currently a member of the Board of Managers. He testified in pertinent part as follows:

Q. And when the building was converted it’s exhibit 10 [Note 27] with the condominium documents that were presented to…each unit owner; isn’t that correct?...

A. Yes.… [Note 28]

Mr. Echaus acknowledged the practice of allocating to each unit owner of Sewall-Marshal one parking spot per unit. [Note 29]

29) The Bylaws of Sewall-Marshal were amended on January 8, 1979 to include the following language:

The right to use of each one of the parking spaces available to [Sewall-Marshal] pursuant to a parking Agreement between [131 Sewall] and [Sewall-Marshal] shall be allocated by the Board of Managers to the Unit Owners … A Unit Owner's right to use of a parking space, when so assigned, shall continue so long as the said Parking Agreement is in effect.... [Note 30]

30) At the time the Sewall-Marshal Condominium and the 131 Sewall Ave. Condominium were created and the Parking Agreement executed, Brookline zoning ordinances required a minimum of one parking space per condominium unit. [Note 31]

31) The stipulated 80 / 20 split in the allocation of parking spaces resulted in a fractional number of parking spaces allotted to each condominium. This fractional number resulted in disagreement between the condominiums and an effort to resolve their differences.

32) James Gallagher (Gallagher) began his superintendent’s career working for the Sterns as a live- in superintendent of their rental properties. The said rental properties were to become the two condominiums here at issue. Thereafter, he served both condominiums in that role, from their creation in 1978 until 2002. [Note 32] In 2002 he began working as the superintendent solely for 131 Sewall Ave. [Note 33] Nonetheless, he continued to reside in Unit 20-1 at the Sewall-Marshal Condominium which was conveyed by Roger Stern to the 131 Sewall Condominium. By agreement, his parking space was allocated to 131 Sewall-Marshal. He currently has three vehicles that are located in the common parking area. At least a portion of one vehicle is located on land belonging to the Sewall-Marshal Condominium. [Note 34]

33) Prior to the conversion of the buildings to condominiums, the practice was to use the entire outdoor parking areas for the two buildings together with the garage at what is now the 131 Sewall Avenue Condominium, as parking for residents at both buildings. That pre-existing practice was essentially codified in the Parking Agreement.

34) While Mr. Gallagher has assigned parking spaces over the years to unit owners of both condominiums, he has denied knowledge of the underlying Parking Agreement. However, on cross-examination, he responded as follows:

Q. Before this litigation started, did you understand that parking practices at both condominium associations ensured each unit occupant a parking space?

A. Yeah. [Note 35]

35) The purchasers of the units in each condominium have at no time acquired deeded parking spaces. Rather, they are entitled to the use of an assigned parking space for the duration of their ownership. However, spaces in the defendant’s parking garage have a waiting list and are assigned as they become available. [Note 36]

36) In 1983, the developer, Roger W. Stern, endeavored to resolve certain differences that had arisen between the plaintiff and defendant condominiums. Roger Stern submitted a “Report to the Boards of Directors” dated February 15, 1983, to each condominium; the Report was captioned “Resolution of Outstanding Differences.” [Note 37] One of the proposals advanced by Roger Stern concerned the 80 / 20 parking arrangement as set forth in the Parking Agreement. [Note 38]

That document includes the following proposals:

(a)- The original split of ‘80-20’ shall be recognized as the appropriate basis for the division of the original 62 parking spaces of which 36 were ‘inside’ spaces and 26 were ‘outside’ spaces.

(b)- The split of parking spaces mentioned… above shall be a condition precedent to any further agreement on parking.

(c)- The principle shall be established of allowing a first car to be parked by all 66 units, exclusive of the Superintendent’s unit, said principle shall be recognized by both Associations…. [Note 39]

37) By memorandum dated March 6, 1983 from the Sewall-Marshal Board of Directors to Roger W. Stern, it was advised that the Sewall-Marshal Condominium Association had met with the 131 Sewall Avenue Condominium Association to discuss the earlier Stern proposals. Sewall-Marshall advised that it was prepared to “formalize a compromise with the 131 Sewall Board based upon these principles.”

38) By letter dated April 15, 1983, [Note 40] “Dale D. Shaw, President of the 131 Sewall Condo. Board” directed the following to the “Sewall-Marshal Condo. Board”:

…[T]he enclosed sheets on parking spaces are as of 4/13/83. They show that of the 68 spaces “Marshal” is using 20 spaces, “131” is using 47 spaces, and Jim [Gallagher] one space….

39) By letter dated September 28, 1983, [Note 41] Dale Shaw, president of the 131 Sewall Condominium Association wrote to the Sewall-Marshal Condominium Association. In that letter, he made the following observations:

[O]ne thing that we thought had been promised to us was that the existing parking spaces based upon the existing agreement foran 80/20 split would be designated and agreed to us…. We have already agreed, between us, that as far as the indoor paces are concerned your Association has spaces 7, 13, 14, 22, 23, 28 and 36. Thus, it comes down to your designating six outdoor spaces….

If this is agreeable to you would you kindly sing the duplicate copy of this letter where indicated, in which event, there will be a binding agreement between the two associations as to the designation of the parking spaces under the existing agreement. (emphasis added)

40) By letter of November 8, 1984 Jules M. Fried, a member of the Sewall-Marshal Condominium Association wrote to Roger W. Stern concerning the prospective sale of Sewall-Marshal Condominium Unit 20-1, the so-called Superintendent’s Unit, to 131 Sewall. He referenced Sewall-Marshal’s right to 15 parking spaces, i.e. twenty percent of the existing spaces rounded up to fourteen, including the single space attributable to the Superintendent. [Note 42]

By letter of December 20, 1984 directed to the 131 Sewall Board of Managers, Roger W. Stern outlined the proposed terms on which he was prepared to convey to 131 Sewall, Unit 20-1, the Superintendent’s Unit, at Sewall-Marshal. The bulk of the Stern proposal concerned “the use of parking spaces at the two condominiums.” [Note 43]

The Stern Proposal was endorsed as follows by Arthur S. Braverman on behalf of 131 Sewall Avenue Condominium:

We hereby agree to the terms of this letter agreement.

The Unit 20-1 Unit Deed to 131 Sewall Avenue Condominium was received for registration on February 1, 1985. [Note 44]

41) This court is satisfied that more likely than not, an unsigned copy of the Parking Agreement was made available to the original Unit purchasers as part of their initial documents package. [Note 45] There is no evidence that a copy of the Parking Agreement was distributed to those acquiring Units from the original owners, or thereafter.

42) Management has continued to assign spaces in accordance with the terms of the Parking Agreement. The 131 Sewall Avenue Condominium Association maintains this allocation through a management company which it employs. Mr. Gallagher, who is currently employed by 131 Sewall’s management company, has borne the responsibility for implementing the said allocation. While the subject of some dispute, this court is satisfied that acting in such capacity, Gallagher has acted on behalf of the condominium(s) by which he was employed at the time. [Note 46]

43) In 1984, Roger Stern sold a basement Unit that he owned in the Sewall-Marshall Condominium to 131 Sewall for use by the common superintendent, James Gallagher. [Note 47] During the period that the services of James Gallagher were being shared by the two Condominiums, [Note 48] Sewall-Marshal and 131 Sewall each paid their share of the carrying charges, including mortgage and tax costs, for the Sewall Marshal Condominium Unit in which he continues to reside with his family. [Note 49] The costs were allocated predicated ultimately upon the 80/20 split as reflected in the Parking Agreement. As part of the arrangement, the superintendents’ parking space would not be charged against those allocated to Sewall-Marshall as per the Parking Agreement. [Note 50]

44) So too, costs of maintaining the common parking area, including landscaping and snow plowing, have been similarly allocated on an 80/20 basis. [Note 51]

45) The two condominiums adopted a common towing policy as regards the pooled parking area. [Note 52] 131 Sewall issued the common towing policy on November 2, 1987. [Note 53]

46) On November 2, 1987, 131 Sewall Avenue adopted a series of Parking Rules which concerned the assignment of individual parking spaces. The said Parking Rules included a prohibition on the transfer or subleasing of any space, provisions for overnight guest parking, the maintenance of a waiting list for indoor garage parking, and provisions for those seeking parking for a second vehicle. Paragraph 2 of the Parking Rules reference the use of a space that may have been “ reclaimed per agreement with the Sewall-Marshal Condominium Association.” [Note 54]

47) Laurence Onie, the first to acquire a Sewall-Marshal Condominium Unit, was assigned a specific parking space inside the garage by Roger Stern when he purchased his unit. [Note 55]

48) Residents of 131 Sewall Ave have regularly used, for a period approximating twenty years, parking space #29 located on Sewall Marshal's property. [Note 56]

49) Exhibit 15, minutes of a meeting of the Sewall-Marshal Board of Managers of November 10, 1982, references ongoing interaction with the defendant concerning parking assignments. [Note 57] Similarly, Exhibit 2, minutes of the Sewall-Marshal Condominium Association of January 15, 1983, references the “original parking agreement” and possible resort to arbitration. [Note 58]

50) As recently as August 18, 1990, one Mark Keil, a resident of 131 Sewall, forwarded a packet of material to one Roberta Gollon, a resident of Sewall-Marshal. There is no evidence on the trial record to clearly indicate that these individuals served 131 Sewall and Sewall-Marshal in official capacities. See Exhibit 33. It is noteworthy, nonetheless, that the documents so forwarded include “Parking Agreement that is part of our Condo Docs.” The documents include “Our [131 Sewall’s) parking rules”, “changes to the parking agreement” and “the most recent list of who parks where.” [Note 59]

51) On December 14, 2006, the Board of Managers of 131 Sewall caused to be mailed a letter addressed to Unit Owners of Sewall-Marshal Condominium which apparently prompted the instant litigation. It stated in pertinent part, as follows:

[E]ffective midnight, February 14, 2007, the 131 Association will no longer allow Sewall-Marshal residents to park on 131 Association common areas. Rather, we will designate spaces to our own unit owners. As of February 15, 2007, any vehicle that is parked on 131 Association property without a written agreement for the same... will be towed at the vehicle owners expense. Please also be advised that the 131 Association will change all of the locks on its building and garage. No one other than 131 Association residents will be provided keys. [Note 60]

Discussion

The enforceability of the Parking Agreement is the clear focus of this litigation. In the case of Busalacchi v. McCabe, 71 Mass. App. Ct. , 493, 499 (2008) at 499, the Court observed as follows:

Ownership of a condominium unit is a hybrid form of interest in real estate entitling the owner of both ‘exclusive ownership and possession of his unit, G.L. c. 183A, s. 4, and…an undivided interest [as tenant in common together with all the other unit owners] in the common areas….” Condominium ownership “affords an opportunity to combine the legal benefits of a fee simple ownership with the economic advantages of joint acquisition and operation of various amenities including recreational facilities, contracted caretaking, and security safeguards.” Noble v. Murphy, 34 Mass. App. Ct. at 456.

At page 497, the Busalacchi court continued, as follows:

Without a clear expression from the Legislature breaking with the common law, the common law will apply. See Pineo v. White, 320 Mass. 487 , 491 (1946) (“statute not to be interpreted as effecting…a repeal of the common law unless [such] intent…is clearly expressed.”) See also Kaplan v. Boudreaux, 410 Mass. 435 , 442 (1991) (although “condominiums are essentially creatures of statute, “when the statute is silent, “look to the common law” for guidance)….

The plaintiff has argued that the relationship between the two condominiums, insofar as it relates to parking, is that of contracting parties. This court concurs and sees no reason, given the circumstances pertaining herein, why such contract should not be enforced under pertinent principles of common law, or relevant statutory law where appropriate.

Significantly, the Boards of Managers of the respective Condominiums were authorized pursuant to Section 2.2(o) of the 131 Sewall Bylaw and Section 2.2(o) of the Sewall-Marshal Bylaw to allocate “parking spaces to the use of Unit owners and others….” [Note 61] Pursuant to Section 2.2(a) the respective Boards of Managers are charged with the “[o]peration of the common elements.” This court is of the view, therefore, that the Boards of Managers were acting within their authority in contractually obliging themselves, and their successors, to allocate the pooled parking spaces in the manner in which they did so. In fact, the respective condominiums have adhered to the primary allocation provisions of the Parking Agreement for a period of approximately thirty years. In the case of both Condominiums, this Bylaw provision, Section 2.2, is effectively incorporated by reference into the Master Deed by Section 12 thereof [Note 62] which is captioned:

Units Subject to Master Deed, Unit Deed, By-Laws and Rules and Regulations

In executing the Parking Agreement on behalf of their Condominiums, the Boards of Managers effectively bound themselves to pool and allocate the parking spaces available to both Condominiums in the manner described. Moreover, in allocating at least one parking space to each Unit, the contractual arrangement assured compliance with the Brookline Zoning Bylaw.

For its part, the defendant argues, inter alia, that 131 Sewall obtained nothing of value under the said Agreement and that mutual consideration is therefore lacking. However, this court is satisfied that there is by the plain language of the Parking Agreement, mutuality of consideration. The Parking agreement was executed under seal by the first Board of Managers of each condominium acting on behalf of each party to this litigation. Those Boards, together with their condominium associations have continuously implemented the provisions of the Parking Agreement. [Note 63] Moreover, in aggregating or pooling the parking spaces in the fashion that they did, 131 Sewall was assured of access to the Sewall-Marshal parking spaces, and vice versa. Testimony at trial disclosed that for a period of at least twenty years, a parking space at Sewall-Marshal has been assigned to and used by a 131 Sewall Unit owner. The 131 Sewall Superintendent James Gallagher testified that he parks “half” of one of his three vehicles in a Sewall-Marshal parking space.

Chapter 183A, section 5 (b)(1) of the General Laws provides in relevant part, as follows:

The granting of an easement by the organization of unit owners, or the designation or allocation by the organization of unit owners of limited common areas or facilities…shall not be deemed to affect or alter the undivided interest of any unit owner. (emphasis added)

The court recognizes that the matter before it is somewhat unique involving as it does a contractual arrangement for the pooling and allocation of parking spaces in the common areas of two abutting condominiums. The Parking Agreement effectively perpetuates an arrangement that was in place prior to the submission of the properties to the provisions of G.L. c. 183A. As the factual record makes clear, the Boards of Managers, and / or the condominium associations have interacted on numerous occasions with regard to the Parking Agreement. With the exception of the period preceding this litigation, the trial record discloses no instance where the underlying validity of the Parking Agreement was questioned by either party.

The defendant argues too, that the Parking Agreement is “void, voidable and/or unenforceable as an unconscionable contract. It basis this argument upon the defendant unit owners purported lack of notice. This court disagrees and does not view the contractual arrangement as unconscionable in any sense. As previously observed, this court views the Parking Agreement as a contractual arrangement between the two governing Boards of Managers obliging them to allocate the pooled spaces on a percentage basis. The percentage interests of the unit owners in their respective common area have not been diminished or otherwise affected.

This court infers and so concludes from the evidence set forth in the trial record that in conjunction with the sale of the Superintendent’s Unit 20-1, the parties reached an agreement to round Sewall-Marshal’s twenty percent share [Note 64] upward to 14 spaces, together with an additional space for Superintendent Gallagher, i.e. for a total of fifteen parking spaces. [Note 65] Seven of these spaces are located within the defendant’s parking garage, [Note 66] while the remaining eight spaces are outdoors. That arrangement is to remain in place subject to any alteration in accordance with Paragraph 2 or Paragraph 4 of the Parking Agreement. Thus, going forward, the parties may agree on alternate locations of the spaces at issue in accordance with the said Paragraph 2. Failing such agreement, either party may demand that such issue, or any other parking related issue, be submitted to arbitration. In this regard, the Parking Agreement contemplates that the parties will meet annually in December to “agree upon the particular spaces which the condominiums shall have the right to use…for the next year.” In the event the parties are unable to so agree, or if there are any other disputes which may arise under the Parking Agreement, either party may demand arbitration. [Note 67]

It is the determination of this court that the Parking Agreement is to be enforced as set forth herein. As a consequence, this court need not address the plaintiff’s Count IV estoppel claim, its Count V unjust enrichment claim, or its Count VI equitable interest claim. Defendant’s counterclaim will be dismissed.

Judgment to enter accordingly.