This case pertains to a dispute between Plaintiff Village at Bedford Woods Condominium Trust (Plaintiff) [Note 1], which is an organization of unit owners at The Village at Bedford Woods Condominium (the Condominium) [Note 2], and Defendants Century Bank & Trust Co. (the Bank) [Note 3] and Middlesex Point LLC (the Declarant) [Note 4] (together, Defendants) as to whether the Declarant has a continued right (the Phasing Rights) [Note 5] to access Condominium land and construct additional units thereon pursuant to certain phasing provisions in the Condominiums master deed, and whether the Bank has any interest in the Phasing Rights pursuant to the Mortgage granted to the Bank by the Declarant. Plaintiff seeks a judicial declaration that the Declarants said rights have expired, and also seeks an injunction against the Bank (preventing the Bank from foreclosing upon the Mortgage and selling or transferring the Phasing Rights) pending the resolution of the issue of the Phasing Rights.
To that end, Plaintiff commenced this action by filing a Verified Complaint on May 27, 2014, by which Plaintiff sought (a) certain judicial declarations, pursuant to G. L. c. 231A, relative to the Declarants Phasing Rights under the Master Deed [Note 6], and (b) injunctive relief, pursuant to G. L. c. 185(1)(k), prohibiting the Bank from foreclosing upon and/or transferring any rights in the Condominium in which the Bank holds a security interest. A case management conference was held on June 25, 2014. On June 30, 2014, the Bank filed its Answer to the Complaint, which included a Counterclaim seeking a declaratory judgment, pursuant to G. L. c. 231A, relative to the Declarants Phasing Rights and the Banks security interest therein. [Note 7] On July 1, 2014, an entity called Tower LLC (which had alleged an interest in the Mortgage) filed a motion to intervene; both Plaintiff and the Bank filed opposition to the motion to intervene, which was later withdrawn on July 14, 2014. On July 11, 2014, Plaintiff filed an Answer to the Banks Counterclaim. The Declarant never appeared or filed an answer in this case. [Note 8]
On September 24, 2014, Plaintiff filed its motion for summary judgment, together with a memorandum of law, statement of undisputed material facts, and an appendix of exhibits, including an affidavit (the Anctil Affidavit) of Robert W. Anctil, Esq. (Anctil), who claims to be an expert in condominium master deed construction. On October 31, 2014, the Bank filed its opposition to Plaintiffs motion, as well as its cross-motion for summary judgment, together with a memorandum of law, statement of additional material facts, and an appendix of exhibits, including an affidavit of James M. Flynn (Flynn), Senior Vice President of the Bank. [Note 9] On November 10, 2014, Plaintiff filed its opposition to the Banks cross-motion for summary judgment, together with a statement of additional material facts and a supplemental appendix. [Note 10] A hearing was held on all motions on December 8, 2014, at which time all matters were taken under advertisement.
The court has issued a decision (the Decision) as of todays date. In accordance with the Decision, it is hereby:
ORDERED and ADJUDGED that Plaintiffs motion to default the Declarant is ALLOWED; and,
ORDERED and ADJUDGED that the Banks motion to strike the Anctil Affidavit is hereby ALLOWED; and,
ORDERED and ADJUDGED that the Banks motion to strike Plaintiffs supplemental filings is hereby ALLOWED, in part, as follows: Plaintiffs supplemental filings will be included in the summary judgment record, as will Flynns supplemental affidavit; however, Plaintiffs discussion, in its reply brief, as to whether the Mortgage is in default are stricken from the summary judgment record; and,
ORDERED and ADJUDGED that the Declarants Phasing Rights in Phase II and Phase III of the Condominium did not expire on the conclusion of the Construction Period [Note 11], but rather are still in effect, and will remain so (barring the occurrence of either contingency stated in Section h, ¶ (III)(G)(I) of the Master Deed) until October 12, 2027 [Note 12]; and,
ORDERED and ADJUDGED that the Banks security interest in the Declarants Phasing Rights pursuant to the Mortgage remains in full force and effect; and,
ORDERED and ADJUDGED that Plaintiffs motion for summary judgment is DENIED in all respects, with prejudice; and,
ORDERED and ADJUDGED that the Banks cross-motion for summary judgment is ALLOWED; and,
ORDERED and ADJUDGED that Plaintiffs complaint is hereby DISMISSED, with prejudice.
By the court.
[Note 1] Plaintiff is the organization of the Condominiums unit owners and the governing body of the Condominium. Plaintiff was created pursuant to a declaration of trust dated September 21, 2006 and recorded in the Middlesex County South Registry of Deeds (the Registry) at Book 48312, Page 324 (the Declaration of Trust, and together with the Master Deed, the Condominium Documents)
[Note 2] The Condominium is a condominium located in Bedford, Massachusetts, which was established pursuant to a master deed (the Master Deed) dated September 21, 2006 and recorded in the Registry on October 12, 2006 at Book 48312, Page 293. Bycomprehensive permit (the Comprehensive Permit) issued bythe Town of Bedford (the Town) on August 26, 2004 and recorded in the Registry at Book 43879, Page 320, the Town authorized the construction of the Condominium, subject to several conditions specified therein, including that twenty-two of the eighty-eight total Condominium units be affordable housing units.
[Note 3] The Bank is the mortgagee and holder of a mortgage granted to the Declarant (the Mortgage) dated October 8, 2004 and recorded in the Registry at Book 43879, Page 374, which secured two promissory notes from the Declarant in the amounts of $5,685,000 and $6,670,000. By subordination agreement (the Subordination Agreement) dated October 4, 2006 and recorded in the Registry at Book 48380, Page 331, the Bank and the Declarant agreed to subordinate the Mortgage to the Condominium Documents, and clarified that the Mortgage was secured by the Condominium, including any future developments thereof.
[Note 4] The Declarant was the declarant of the Condominium under the Master Deed, and was organized in 2003 for the acquisition, development, construction, sale, and leasing of Condominium real estate. According to Massachusetts Secretary of State, Corporations Division (the Corporations Division) records, the Declarant was dissolved by order of involuntary dissolution dated April 19, 2011. Said records indicate that Stephen F. Vazza (S. Vazza) was the sole manager and registered agent for service of process of the Declarant.
[Note 5] The Phasing Rights is defined in the Decision (defined, infra) as the right, pursuant to Section h, ¶ III of the Master Deed, to add two additional phases of development (respectively, Phase 2" and Phase 3") of the Condominium at 2000 Albion Road and 3000 Albion Road, Bedford Massachusetts. Pursuant to the Master Deed, the first phase of development of the Condominium (Phase 1") pertained to the property located at 1000 Albion Road.
[Note 6] Specifically, Plaintiff requested declarations that (a) [t]he access and construction reserved right has expired, (b) [t]he amendment reserved right has become a nullity, (c) [t]here is no right for [Defendants] to add Phases, Units or Buildings to the condominium, (d) [Defendants] reserved development rights no longer exist, and (e) [the Declarant] . . . [has] abandoned construction of the condominium and [ ] its Marketing phase is over.
[Note 7] The Banks Answer alleges that the Declarant defaulted upon the Mortgage (which is also alleged in Plaintiffs Complaint), but the Banks Counterclaim does not incorporate that allegation, nor does it seek a judicial declaration that the Mortgage is in default.
[Note 8] On July 15, 2014, Plaintiff filed an affidavit of due diligence relative to Plaintiffs attempts to locate the Declarant. Service by publication upon the Declarant was authorized on September 26, 2014, and such publication was made in the Bedford Minuteman on October 16, 2014. On October 27, 2014, Plaintiff filed an affidavit of service relative to service by publication. On November 21, 2014, Plaintiff filed a motion for entry of a default against the Declarant pursuant to Mass. R. Civ. P. 55(a).
[Note 9] On the same date, the Bank also filed a motion to strike the Anctil Affidavit.
[Note 10] The supplemental appendix contained, inter alia, copies of the recorded deeds for all thirty units in Phase I of the Condominium, copies of the recorded partial releases of the Mortgage for twenty-seven of said units, copies of settlement statements pertaining to several of said units, and an affidavit of Sidney Whiting (owner of Unit 1102). On November 14, 2014, the Bank filed a motion to strike Plaintiffs statement of additional material facts and supplemental appendix. On November 21, 2014, Plaintiff filed opposition to this motion to strike. At the summary judgment hearing, the Bank requested permission to file a supplemental affidavit of Flynn (addressing the issue of the Declarants default upon the Mortgage), which Plaintiff opposed. This court allowed Flynns supplemental affidavit to be filed, de bene.
[Note 11] The Construction Period is defined in the Decision as the Declarants reserved three-year access right (pursuant to Section b of the Master Deed) to the Condominium for construction purposes, specified as follows:
The Declarant hereby expressly reserves to itself and its successors-in-title and their nominees, for a period ending three (3) years next after the date on which this Master Deed is recorded, the easement, license, right and privilege to pass and repass by vehicle and on foot in, upon, over and to the common areas and facilities of the Condominium (hereinafter defined) for all purposes, including but not limited to transportation of construction materials in order tocomplete construction work on the Condominium.
Section a, ¶ (I)(b) of the Master Deed also contains similar language pertaining to this Construction Period, and further specifying that:
The Declarant reserves the exclusive right to grant easements over, under, through and across the common areas and facilities of the Condominium, including but not limited to the land and all buildings, for the purpose of (a) satisfying any special permit or variance requirement for the Town of Bedford and (b) installing cable television lines and utilities serving the Units and the common areas and facilities in the Condominium and such other equipment as may be necessary for the installation and operation of the same, and the Declarant reserves the right to install cable television lines and other equipment as may be necessary for the installation and operation of same in any portions of the Condominium buildings.
[Note 12] Pursuant to Section h, ¶ (III)(G)(i) of the Master Deed:
The Declarants reserved rights [i.e., the Phasing Rights] to amend this Master Deed to add all or any portion or portions of future Phases to the Condominium and/or to add new Units to the Condominium as part of future phases shall expire twenty-one (21) years [the Phasing Period] after the date of the recording of this Master Deed . . . .
This section further provides that the Phasing Rights expire upon(a) the completion of eighty-eight units in the Condominium (which has not occurred), (b) the Declarants relinquishment of said rights (which has not occurred), or (c) the expiration of the twenty-one year Phasing Period (i.e., October 12, 2027) -- whichever occurs first. Section h, ¶ III (G)(xi) of the Master Deed further provides, in pertinent part, as follows:
The Declarant hereby reserves the right to amend, restate, reaffirm or otherwise take whatever steps which may be required to complete the Condominium and construction of the Buildings, improvements and Units and the phasing of any of the same into the Condominium notwithstanding that any of the same may be required to be done beyond any time or period as may be otherwise provided herein so long as any such act or omission shall not be in violation of any rule of law, then in effect.
Finally, Section h, ¶ III (G)(iv) of the Master Deed provides that [t]he Declarant may unilaterally amend this Master Deed to add new Units to the Condominium as part of future phases.