MEGHAN McNAMARA and JOSHUA WERNIG v. SUSAN FERRAZ.

The plaintiffs, Meghan McNamara and Joshua Wernig, and the defendant, Susan Ferraz, reside in condominium units at the opposite ends of a townhouse condominium building in the Charlestown neighborhood of Boston. The plaintiffs filed a verified complaint alleging that Ms. Ferraz has repeatedly trespassed, with her dog, on their patio, to which they have an exclusive use easement. The plaintiffs sought preliminary and permanent injunctive relief. Ms. Ferraz admits that she traverses the area in question, but maintains that she has the right to do so under the documents governing the condominium. This matter was first before the court on the plaintiffs’ motion for a preliminary injunction, pursuant to which the court (Speicher, J.) issued a preliminary injunction on April 28, 2015. The matter is now before the court on the plaintiffs’ motion for summary judgment. A hearing was held on August 11, 2015, at which counsel argued on behalf of the plaintiffs and the defendant appeared pro se.

Upon consideration of the verified complaint, the summary judgment materials submitted by the parties (which included the recorded master deed and site plans and floor plans, as well as photographs of the disputed areas), and the arguments of counsel for the plaintiffs and of the defendant at the summary judgment hearing, the court finds and rules that summary judgment shall enter for the plaintiffs, for the reasons stated below.

FACTS

The material undisputed facts pertinent to this motion for summary judgment are as follows:

1. The plaintiffs, Meghan McNamara and Joshua Wernig, own and reside in Unit 1E of The Hadley Street Condominium, located at 1 Hadley Street in the Charlestown neighborhood of Boston (the “Condominium”).

2. The defendant, Susan Ferraz, owns and resides in Unit 1A of the Condominium.

3. The master deed for the Condominium is recorded with the Suffolk County Registry of Deeds in Book 47759, Page 292; the site plans and floor plans for the Condominium are recorded with the Registry in Plan Book 2011, Page 96.

4. The Condominium consists of six attached townhouse units along Hadley and Crescent Streets in Charlestown. The six units are built above a semi-enclosed ground-floor garage, which provides off-street parking for each of the units in the Condominium.

5. Unit 1A, owned by Ms. Ferraz, and Unit 1E, owned by the plaintiffs, are at opposite ends of the Condominium building.

6. Each unit in the Condominium has a separate entrance to the street, and each unit has a separate stairway or other access directly into the garage.

7. Unit 1E, owned by the plaintiffs, has appurtenant to it two parking spaces in the ground-floor garage; Unit 1A, owned by Ms. Ferraz, has one parking space appurtenant to it at the other end of the garage.

8. Section 3(B) of the master deed provides that the parking spaces appurtenant to the units consist of “an easement for the exclusive right to use” the applicable parking spaces. Under the heading, “Use of the Parking Spaces”, the same section provides in relevant part, “nothing shall prevent a Unit Owner and/or legal occupant of a unit from traveling, at their own risk, across and through the Garage to access a Parking Spaces (sic) or any other part of the common areas or Condominium to which said Unit Owner or occupant is entitled to access.” (emphasis in original)

9. Section 3(F) of the master deed provides in relevant part as follows:

There is a paver patio (the “Patio”) located on the street level adjacent to Crescent Street and accessible from the Stairwell of Unit 1-E and shown on the Site Plan and Floor Plans as “Patio.” The Patio is a part of the common areas and facilities, except as provided herein. The Owners of Unit 1E, shall have as an appurtenance to his/her Unit, an easement for the exclusive right to use the Patio.

10. The Condominium site plans show a “Conc. Block Patio” adjacent to Unit 1E; specifically, next to the stairway from the street level to the first floor of Unit 1E, and adjacent to a “concrete wall” separating the patio from a step down into the garage and a “common site utility area”. The step down to the garage level is adjacent in turn to one of the plaintiffs’ two parking spaces. It is also possible to access the step from the garage level to the patio by crossing the “common site utility area.”

11. Section 4 of the master deed provides that “common site utility areas” are “used to locate and run equipment” such as HVAC equipment, and are accessible to the unit owners only “at reasonable times and/or as necessary to service, repair or maintain any utility line, apparatus or equipment which so services their respective Unit.” The common site utility area adjacent to the patio for Unit 1E does not contain any equipment serving Ms. Ferraz’s unit, which is at the other end of the Condominium.

12. Ms. Ferraz has, on an undetermined number of occasions, walked her dog across the garage from the vicinity of her unit, and stepped up from the garage onto the patio adjacent to Unit 1E and walked to the gate in front of the stairway leading to the plaintiffs’ unit in order to go out to Crescent Street. In order to get from the common area of the garage to the gate out to Crescent Street, Ms. Ferraz must cross one or both of the plaintiffs’ parking spaces, the common site utility area adjacent to the patio, and then step up onto the patio and cross part of the patio to reach the front gate.

DISCUSSION

“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 Gen. v. Bailey, 386 Mass. 367 , 371, cert. denied, 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. When appropriate, summary judgment may be entered against the moving party and may be limited to certain issues. Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

Ms. Ferraz, who has adequate and legal access to the street from her own condominium unit, does not dispute that on occasion she accesses Crescent Street from the garage of the Condominium by crossing over one or both of the plaintiffs’ parking spaces, crossing the common site utility area, stepping up onto the area under or next to the plaintiffs’ staircase into their unit, and crossing this area to the front gate to Crescent Street. Ms. Ferraz claims she has the right to use this route, arguing that the nature of the exclusive use easement granted to the plaintiffs by the master deed does not prohibit her from using the area to gain access to the street, and further arguing that if it does, the plaintiffs’ exclusive easement for the use of the patio does not cover the area she crosses to get to the front gate. Ms. Ferraz is incorrect in both of these arguments.

The master deed grants to the owners of Unit 1E “an easement for the exclusive right to use the Patio”, as well as an easement for the exclusive use of the two parking spaces that are appurtenant to Unit 1E. Such an easement for the exclusive use of what is otherwise a part of the common area of the Condominium is explicitly authorized by statute. General Laws, chapter 183A, §1, defines such exclusive use easement areas as follows:

“Limited common areas and facilities”, a portion of the common areas and facilities allocated by the master deed or any amendment thereto for the exclusive use of one or more but fewer than all of the units.

This definition was added to the statute in 1994, and codified existing practice and case law already allowing and utilizing such limitations on the use of common areas. St. 1994, c. 365, §1; Tosney v. Chelmsford Village Condominium Association, 397 Mass. 683 (1986) (Establishment of limited common areas authorized by G. L. c. 183A, even though statute silent on subject). Thus, pursuant to applicable case law prior to the amendment of the statute, and pursuant to the explicit statutory authorization for such limited common areas, a master deed may provide that a part of the common area may be reserved for the “exclusive use of one or more but fewer than all of the units”. Belson v. Thayer & Associates, Inc., 32 Mass. App. Ct. 256 , 259 (1992). Such an easement reserving part of the common area for the exclusive use of one or more unit owners may be called an “exclusive use area”, and may be used to reserve an outdoor patio for the exclusive use of the owner of one unit in a condominium. Trustees of One Hundred Nine Condominium Trust v. Maurer, 81 Mass. App. Ct. 1131 (2012) (Memorandum and Order Pursuant to Rule 1:28).

Ms. Ferraz argues that the word “exclusive” in the reservation of the easement for the use of the patio and the two parking spaces to the owners of Unit 1E somehow does not mean that the use of those areas is limited to the owners of Unit 1E. This argument is unavailing. Although the word “exclusive” is undefined in both the statute and in the master deed, undefined terms are to be given their “usual and accepted meanings, as long as these meanings are consistent with their statutory purpose.” Eastern Point, LLC v. Zoning Board of Appeals of Gloucester, 74 Mass. App. Ct. 481 , 486 (2009), citing Commonwealth v. Zone Book, Inc., 372 Mass. 366 , 369 (1977). The word “exclusive” in the master deed grants to the plaintiffs the “exclusive right to use the Patio”, as well as the exclusive use of the parking spaces. The word “exclusive” would be rendered meaningless if it was interpreted to permit Ms. Ferraz or other unit owners to share in that right of use for the purpose of crossing from the garage to the front gate out to Crescent Street. Giving the word “exclusive”, its ordinary meaning, as used in these two grants of exclusive use easements to the plaintiffs as owners of Unit 1E, the court finds and rules that Ms. Ferraz does not have a right to cross, access or use the plaintiffs’ parking spaces or the patio appurtenant to their unit for any purpose. Nor does she have the right to use or access the common site utility area adjacent to the plaintiffs’ patio, since there is no equipment in that area servicing her unit.

Ms. Ferraz further argues that even if she does not have the right to use the patio appurtenant to the plaintiffs’ condominium unit, the patio is only 75 square feet, and does not include the path she takes from the garage to the front gate. Ms. Ferraz misreads the Condominium site plans in this regard. There is a reference on the site plans to “Unit 1E Right of Use Easement Access – 75 sf”, but this label is with reference to an easement access area to the garage, also for the benefit of the owners of Unit 1E. The access easement is separate from the patio, which is not described as being limited to 75 square feet. The “right of use easement access” appears to grant the owners of Unit 1E access rights to the step down from their patio, across the common site utility area, to the location of their parking spaces in the garage. In any event, it is another example of an easement limited to the exclusive use of the owners of Unit 1E, separate and apart from their exclusive right to use the patio. The patio, as is amply shown on the Condominium site plans, extends over the entire area adjacent to the common site utility area, which is in turn adjacent to the garage. It would not be possible for Ms. Ferraz to walk out of the garage onto the area adjacent to the common site utility area to get to the gate to Crescent Street without violating the plaintiffs’ easement rights by walking over the patio that is reserved for the exclusive use of the plaintiffs. Even if it were possible to do so, it could not be done without also walking over the plaintiffs’ parking spaces, and over the common site utility area, to which Ms. Ferraz has no access rights, since there is no equipment in that area servicing her unit.

CONCLUSION

For the reasons stated above, the plaintiffs’ motion for summary judgment is ALLOWED.

Judgment will enter in accordance with this Decision.