STEWART A. DON and ADAM E. DON v. KEN BANKLER, JAKE FORZIATI, ANTHONY GUALINO, MARY MAZZULLI and FRED VARONE, as they are TRUSTEES of SUNTAUG ESTATES CONDOMINIUM TRUST.

At issue in this action is the existence of a partition wall (Wall) separating certain parking spaces in the Suntaug Estates Condominiums (Suntaug Estates or the Condominium) from a common walkway, creating an enclosed garage space separate and distinct from the other parking spaces within the common garage. Plaintiffs Stewart A. Don and Adam E. Don (Plaintiffs) are the record owners of Unit 111 in the Condominium. As such, Plaintiffs hold an easement for the exclusive use of the parking spaces (Parking Spaces) enclosed by the Wall, which are numbered 1, 2 and 3 on plans filed with the Master Deed and recorded with the Essex South Registry of Deeds in Plan Book 92, at Page 72. [Note 1]

Defendants Trustees of the Suntaug Estates Condominium Trust (Defendants or Trustees) notified Plaintiffs of their intent to demolish the Wall, scheduled for May 13, 2014. Plaintiffs initiated this action on May 7, 2014, seeking a declaratory judgment, pursuant to G. L. c. 231A, that their easement for use of the Parking Spaces is appurtenant to Unit 111 (Unit) and includes the right to maintain the Wall adjacent to the Parking Spaces. [Note 2] Together with their Verified Complaint, Plaintiffs moved ex parte for a temporary restraining order to enjoin any alterations to or demolition of the Wall by the Trustees. This court allowed the temporary restraining order on May 8, 2014, and held a hearing on the preliminary injunction on May 16, 2014, at which all parties were heard. The court denied Plaintiffs’ motion for injunctive relief on May 19, 2014, and Defendants subsequently removed the Wall on or around June 4, 2014, at their own risk. [Note 3] Defendants moved for summary judgment on September 8, 2015, and a hearing was held on November 5, 2015, at which all parties were heard. [Note 4]

The summary judgment record includes the parties’ briefs and submissions, to which eleven exhibits are attached. Because material facts remain in dispute, Defendants’ Motion for Summary Judgment is DENIED. The following material facts are those not in dispute:

1. Defendants are the Trustees of the Suntaug Estates Condominium Trust (Defendants or Trustees), according to the Declaration of Trust recorded with the Essex County Registry of Deeds (Registry) in Book 6956, at Page 463.

2. Plaintiffs Stewart A. Don and Adam E. Don (collectively, Plaintiffs) are the record owners of the Unit.

3. Plaintiffs hold an easement for the exclusive use of spaces number 1, 2 and 3 (collectively, the Parking Spaces) as shown on the plans filed with the Suntaug Estates’ Master Deed (Master Deed) and recorded with the Essex South Registry of Deeds in Plan Book 92, at Page 72.

4. The original unit deed (Original Unit Deed) conveying Unit 111 to Gary W. Whitaker (Gary), from Paul A. Margolis and Fredric H. Margolis, Trustees of the Suntex Development Trust, recorded in Book 6927, at Page 252 and dated April 5, 1983, contains the following easement language: “[t]here is also conveyed hereby the easement for exclusive use of garage space[s] nos. 1, 2 and 3 as shown in the Plans filed with the Master Deed” (Parking Space Easement).

5. Ben Wayne Whitaker (Ben) [Note 5] conveyed the Unit to Plaintiffs, as joint tenants, in a unit deed dated September 21, 2010, recorded with in Book 29787, at Page 302 (September 2010 Deed). The September 2010 Deed contains the identical easement language as in the Original Unit Deed: “[t]here is also conveyed hereby the easement for exclusive use of garage space[s] nos. 1, 2 and 3 as shown in the Plans filed with the Master Deed.”

6. Thus, per the September 2010 Deed’s language, Plaintiffs acquired an easement for the exclusive use of the Parking Spaces.

7. Prior to June 2014, a wall (Wall) separated the Parking Spaces from a common area walkway within the garage.

8. Neither the Original Deed nor the September 2010 Deed includes language mentioning the Wall.

9. The Purchase and Sale Agreement pursuant to which Plaintiffs purchased the Unit does not reference the Wall.

Master Deed and Condominium Rules and Regulations

10. The Condominium was created by Suntex Development Company by Master Deed (Master Deed) recorded with the Registry on July 14, 1982, in Book 6956, at Page 441.

11. The floor plan filed with the Master Deed does not show the Wall.

12. Section 5(b) of the Master Deed, titled “Common Areas and Facilities,” provides: “[t]he common areas and facilities of the Condominium consist of . . . [a]ll portions of the Building not included in any Unit by virtue of the Plans[.]”

13. Section 5.1, paragraph 3 of the Master Deed provides that “[s]ubject to regulation by the [Trustees], the Owners of each Unit who have not been granted an easement for exclusive use of a garage parking space as hereinafter described shall have the right, in common with others entitled thereto, to park one personal vehicle in the outside parking areas of the Condominium as designated by the Condominium Trustees[.]”

14. Section 5.1, paragraph 4 provides that “[t]he Declarant reserves for itself, its successors and assigns the right and the power to grant easements in gross to any person to use the garage parking spaces in the common area of the Condominium as shown on the Plans for any lawful purpose during the existence of the Condominium, but such easements shall end upon the permanent withdrawal of the premises from condominium status. The designation of such parking spaces will be made on the Unit Deed.” (Emphasis added).

15. The Condominium’s Rules and Regulations (Rules) state “[unit owners] shall not cause, nor shall they suffer obstruction of common areas and facilities except for storage in any assigned storage areas or except as the Trustees may in specific instances expressly permit.” [Note 6]

16. Under Section I, paragraph 14 of the Rules, “[t]he enclosed parking garages are reserved for the exclusive use of those residents holding easements or leases, and are subject to all applicable Rules contained herein.”

17. Pursuant to Section G, paragraph 1, “[r]esidents may not engage in, or permit, obnoxious or offensive dangerous or unsafe activity in any unit, or in the common areas and facilities, either willfully or negligently, which may be, or become, an annoyance or nuisance to other residents or occupants, or that will interfere with the rights, comforts, or convenience of the other residents or interest with their peaceful enjoyment.”

18. Further, Section G, paragraph 2 of the Rules proscribes “Unit Owners, residents or other occupants may not make, or permit, any disturbing noises by their families, guests[.] Residents are expected to keep the volume of television sets[,] radios, phonographs, stereos, musical instruments etc., at all times at sound levels that will not annoy the residents of neighboring units.”

19. The Rules further provide, under Section O, paragraph 1, “[t]he Board of Trustees has responsibility for enforcing any rules, regulations, or policies as they may be amended and adopted from time-to-time, or breaches of provisions of the Condominium Master Deed, Declaration of Trust, or the unit owner’s Deed.”

Existence of the Wall

20. The exact date the Wall was erected is unknown.

21. Ben assisted Gary with moving into Unit 111 on or around April 5, 1983. At this time, Ben observed the garage was “enclosed by concrete walls on two sides and a sheet rock wall standing on the garage floor, with access to the adjoining corridor through a private door.” See Ben Wayne Whitaker Aff., Ex. A to Pls.’ Opp. to Mot. Summ. J. (Whitaker Affidavit).

22. The Wall was in existence at the time Gary Whitaker took possession of the Unit. [Note 7]

23. The Wall was erected on the floor of the Parking Spaces, and not within the common area walkway. [Note 8]

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The standard of review for summary judgment is well-established. “Rule 56(c) of the Massachusetts Rules of Civil Procedure . . . provides that a judge shall grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Attorney General v. Bailey, 386 Mass. 367 , 370–71 (1982) (citations omitted). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue of fact and that the record entitles it to judgment as a matter of law. Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706 , 711 (1991). The facts must be viewed in the light most favorable to the Plaintiffs, as the non-moving parties. Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).

The majority of the parties’ arguments, in briefing and at oral argument, centered on the scope and purpose of the Parking Space Easement. Plaintiffs allege the Wall was built by the developer the Condominium and delivered to Gary, the first purchaser of Unit 111 and Plaintiffs’ predecessor-in-interest, as an essential element of the Parking Space Easement. They claim the easement includes rights to the Wall or, alternatively, that they have acquired a prescriptive easement to maintain it as located. Defendants counter that the easement grants Plaintiffs the exclusive use of the three Parking Spaces for the parking of Plaintiffs’ own vehicles, and does not grant any ownership interest in the Wall itself. However, based on the summary judgment record and the documentary evidence provided at the summary judgment hearing, it is clear that the Wall is located within the boundaries of the Parking Space Easement. Thus, the primary issue to be resolved is whether the Wall itself constitutes part of the easement.

I. The Wall Was Constructed Prior To Gary Whitaker’s Purchase of Unit 111

Defendants argue that the lack of reference to the Wall on the plans filed with the Master Deed indicates the Wall was not in existence at the time of the original grant of the easement, and therefore cannot be an essential element. However, the plans’ failure to depict the Wall is not evidence of its nonexistence. “As built plans,” pursuant to G. L. c. 183A, § 8(f), require only a “set of floor plans of the building or buildings, showing the layout, location, unit numbers and dimensions of the units, stating the names of the building or that it has not a name, and bearing the verified statement of a registered architect, registered professional engineer, or registered land surveyor, certifying that the plans fully and accurately depict the layout, location, unit number and dimensions of the units as built.” See also G. L. c. 183A, § 8(e) (requiring only a “description of the common areas and facilities and the proportionate interest of each unit therein”). The exclusion of the Wall on the plans demonstrates, at best, that the Wall was not in existence at the time the Master Deed was recorded on July 14, 1982.

Based on the summary judgment record, it is clear that the Wall was in existence at the time of the conveyance of Unit 111 from the developer to Gary. Ben states in his affidavit that his brother took title to Unit 111 on or around April 5, 1983, and that he assisted Gary with moving his possessions into the unit on that same date. At that time, he observed the garage located directly beneath Unit 111, “enclosed by concrete walls on two sides and a sheet rock wall standing on the garage floor, with access to the adjoining corridor through a private door.” Gary Whitaker would not have had an opportunity to construct a wall on property he did not yet own prior to taking possession of the Unit. Defendants have not challenged this affidavit or the information contained therein. Based on inferences drawn in favor of Plaintiffs as the nonmoving party, the Wall existed at the time of the original conveyance and constitutes an “existing condition” within the easement area. Because the Wall was in existence at the time Unit 111 was conveyed to Gary Whitaker, but not indicated in the plans filed with the Master Deed, the court draws the reasonable inference that the developer or Declarant constructed it at some point prior to Unit 111’s initial conveyance. [Note 9]

II. The Wall Is Located Within The Boundaries Of The Parking Space Easement

Having established that the Wall existed prior to Unit 111 being deeded to Gary, and that it is located within the boundaries of the three parking spaces comprising the Parking Space Easement (see fact paragraph 23, supra), the Wall falls within the easement boundaries.

The Original Deed conveying Unit 111 to Gary Whitaker states unambiguously that, together with Unit 111, “[t]here is also conveyed hereby the easement for exclusive use of garage spaces nos. 1, 2 and 3 as shown on the Plans filed with the Master Deed.” Although the Master Deed distinguishes between parking easements for non-garage spaces and easements in gross for garage parking spaces, the language in the Original Deed conveys the exclusive use of three garage spaces together with Unit 111. Identical easement language is found in the September 2010 Deed. “An easement is appurtenant to land when the easement is created to benefit and does benefit the possessor of the land in the use of his land.” Schwartzman v. Schoening, 41 Mass. App. Ct. 220 , 223 (1996), citing Restatement of Property § 453 (1944). The objective of the Original Deed was to confer the exclusive benefit of designated garage spaces numbers 1, 2 and 3 upon Plaintiffs’ predecessor, together with his ownership and possession of Unit 111. The conveyance of the Parking Space Easement in a deed for a particular unit renders the easement appurtenant to the Unit.

Plaintiffs, at oral argument, asserted that the easement language in Section 5.1 of the Master Deed constituted a reservation of rights by the Declarant that served to remove garage parking spaces from the common areas of the Condominium. While it is true that G. L. c. 183A, § 5(c) does not prohibit a Declarant from retaining interests that never become part of the condominium common area, see Commercial Wharf East Condo. Ass’n v. Waterfront Parking Corp., 407 Mass. 123 , 131 (1990), the language of the Master Deed at issue here, and subsequent easement language in the Unit 111 Deed, did not reserve the garage parking spaces from the common areas. The garage spaces are subject to the Rules applicable to the common areas.

To the extent Defendants allege Plaintiffs use the parking spaces for unauthorized activities, such as loud parties, prompting complaints from other Condominium residents, the Trustees are responsible for enforcement of the Rules and Regulations. The Rules provide a mechanism for residents to file complaints, and allegations of unauthorized or offensive activity.. Those allegations are outside the scope of this case and the summary judgment motion before the court.

III. Genuine Issues Of Material Fact Remain As To Whether The Wall Constitutes A Violation Of The Master Deed And Whether Plaintiffs Acquired A Prescriptive Easement For Use Of The Wall

Plaintiffs, in the final count in their Amended Complaint, allege they have acquired a prescriptive easement for maintenance and use of the Wall. Whether the elements of a prescriptive easement claim have been satisfied is essentially a factual question for the trial court. Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 41 n.3 (2007). They argue they have used and maintained the Wall since approximately June 1984. Questions of material fact remain as to whether, by building the Wall prior to conveying Unit 111 and possibly other actions, the developer granted permission for Plaintiffs’ predecessors-in-title to use the Wall. Also, there is a question whether the Trustees revoked that permission in 1984, and, if so, have Plaintiffs’ actions since that time resulted in the ripening of prescriptive rights. As a result, summary judgment cannot be reached on the prescriptive easement issue.

Accordingly, Defendants’ Motion for Summary Judgment is DENIED. A telephone conference is scheduled for April 19, 2016, at 9:45 AM, to discuss the scheduling of the next event and Plaintiffs’ intent to request an interdepartmental transfer of this matter to Essex Superior Court for consolidation with case 1577-CV-01348, Stewart v. Bankler, et al., as Trustees of the Suntaug Estates Condominium Trust, filed August 5, 2015.