BP WATERTOWN RETAIL, LLC and 615 ARSENAL RETAIL, LLC, v. HOME DEPOT U.S.A., INC. and WATERTOWN HOME IMPROVEMENT EXCHANGE, LLC.

The myriad disputes between the parties concern the improvements and activities of the defendant Home Depot U.S.A., Inc. (Home Depot”) in and around the parking lot of its store at the Arsenal Mall shopping center in Watertown. The plaintiffs, the owners of other commercial space in the Arsenal Mall, who share the same parking lot with Home Depot, seek injunctive relief concerning physical improvements made by Home Depot in the parking lot, and concerning activities conducted by Home Depot in the parking lot, in particular the use of the parking lot for outdoor sales.

Home Depot has moved for summary judgment, claiming that all of its improvements and activities in the parking lot are either permitted by the agreements governing the use of the shopping center, that the plaintiffs’ claims are barred by the applicable statute of limitations, or that the claims are otherwise unenforceable. For the reasons stated below, Home Depot’s motion for summary judgment is ALLOWED IN PART, and summary judgment is ALLOWED IN PART for the plaintiffs.

FACTS

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

THE PARTIES

1. Plaintiff BP Watertown Retail, LLC (“BP Watertown”) is the owner of three of the four parcels that comprise the Arsenal Mall in Watertown, Massachusetts (see infra, this section at para. 6).

2. Plaintiff 615 Arsenal Retail, LLC is the owner of Unit 1 of the EDF Watertown Condominium (see infra, this section at para.15).

3. BP Watertown is the prior owner of Unit 1 of the EDF Watertown Condominium.

4. Home Depot leases and occupies Unit 2 of the EDF Watertown Condominium. Unit 2 is owned by defendant Watertown Home Improvement Exchange, LLC.

THE ARSENAL MALL AND THE CONSTRUCTION, OPERATING AND RECIPROCAL EASEMENT AGREEMENT

5. The Arsenal Mall is an approximately thirty-acre shopping center located along Arsenal Street in Watertown including an enclosed mall and outlying buildings, with ancillary internal roadways, parking lots and parking structures. The Arsenal Mall includes a Home Depot store located at 615 Arsenal Street in part of a building formerly occupied by an Ann & Hope department store.

6. Boylston Street Partners, not a party to this case, through its ownership or control of BP Watertown, is the successor-in-interest to the original developer of the Arsenal Mall, designated as “Developer” in an agreement entitled, “Construction, Operating and Reciprocal Easement Agreement” (“COREA”), dated November 15, 1983, and recorded with the Middlesex South District Registry of Deeds (“Registry”) at Book 15336, Page 030.

7. The COREA recognized the division of the Arsenal Mall property into four separate parcels. Three of the parcels, the “Developer Parcel”, the “Market Parcel” and the “Ann & Hope Easement Parcel” (collectively, the “Developer Parcels”), were retained by the original developer. The fourth parcel, known as the “Ann & Hope Parcel” or the “Ann & Hope Fee Parcel”, was owned by a separate, unrelated development entity.

8. The COREA governed both the construction of improvements at the Arsenal Mall and the establishment of the rights and obligations of the parties to the COREA with respect to the “conduct, operation and maintenance” of the Arsenal Mall property. [Note 1]

9. In the COREA, the owner of the Developer Parcels and the owner of the Ann & Hope Parcel granted each other reciprocal easements for the use of the internal roadways, parking areas and pedestrian walkways existing or to be constructed on the Mall property, as well as other related easements. [Note 2]

10. The COREA provided that renovations to the existing building on the Ann & Hope Parcel (containing approximately 160,000 square feet of gross floor area), or new construction on the same site, were to be entirely within an area on the parcel labelled the “Ann & Hope Fee Parcel Permissible Building Area” as shown on a site plan attached as Exhibit C to the COREA. [Note 3] The balance of the Ann & Hope Parcel was to be a parking lot and internal roadways subject to the easements granted and reserved in Article 6 of the COREA. Parking lots and internal roadways at the Arsenal Mall are part of the “Common Areas” as defined in the COREA. [Note 4]

11. The reciprocal easements granted under the COREA include, among others, “Easements to use the parking facilities for the parking and passage of motor vehicles (and trucks, so long as there is no unreasonable interference with customers’ and employees’ parking) and passage by pedestrians.” [Note 5]

12. The reciprocal easements granted by the owners of the parcels making up the Arsenal Mall for use of internal roadways and parking lots were not unlimited, but instead were subject to certain reservations:

a. Owners of the four parcels “shall have the right from time to time to make changes and modifications in and to the parking areas located on (each parcel), which are minor in nature or which do not adversely affect the Owners of the other Parcels.” [Note 6]

b. “[I]n order not to interfere with the use of the Common Areas, nor detract from the appearance of the Shopping Center, outdoor selling will not be permitted on the Developer Parcel and the Ann & Hope Parcel except (i) in the Ann & Hope garden shop; (and) (ii) in any area that is designated on the Site Plan as an Outdoor Selling Area…” [Note 7] The only location designated for outdoor selling on the Ann & Hope Parcel is the “garden shop”, as shown on a site plan that is an exhibit to the COREA. [Note 8] As shown, the “garden shop” is separate from the parking areas reserved as Common Areas under the COREA.

c. Except as otherwise specifically permitted elsewhere in the COREA or shown on the site plan attached to the COREA, and “except for decorative features and customer conveniences”, the COREA provides that “no fence, structure or other obstruction of any kind”, is permitted to be placed in the Common Areas (the parking lots) “without the prior written consent” of the parties to the COREA. [Note 9]

13. The COREA is in effect for a period of not less than fifty years, beginning November 15, 1983. [Note 10]

THE CONDOMINIUM

14. The Ann & Hope Parcel was subsequently submitted to the provisions of G. L. c. 183A by the filing of a Master Deed and Bylaws for the creation of the “EDF Watertown Condominium” (the “Condominium”). The Master Deed and Bylaws for the Condominium were recorded with the Registry on June 1, 2001 at Book 32981, Page 350.

15. The Condominium consists of two commercial condominium units. Unit 1, occupying 33,822 square feet, with a percentage interest of 20.62%, is a retail store; and Unit 2, occupying 130,204 square feet, with a percentage interest of 79.38%, is the building occupied by Home Depot.

16. Unit 1 is presently owned by the plaintiff 615 Arsenal Retail, LLC; Unit 2 is owned by defendant Watertown Home Improvement Exchange, LLC. Home Depot U.S.A., Inc. is the lessee of Unit 2.

17. The shared parking lot for Units 1 and 2 of the Condominium is the same parking area designated as a Common Area on the Ann & Hope Parcel in the COREA. The parking lot is also common area of the Condominium and is not part of either unit. [Note 11]

18. The Master Deed provides the owners of Units 1 and 2 (and their tenants) the non- exclusive “right and easement” to use the Common Areas as defined in and permitted by the COREA. [Note 12]

19. The Master Deed also created certain “Limited Common Areas and Service Areas”, which the Master Deed carved out of the Common Areas and reserved for the exclusive use of each unit owner.

20. Neither the Master Deed nor the Condominium Site Plan describes the location of these areas. Nonetheless, the parties do not appear to dispute that an area along the eastern side and southeastern corner of Unit 2 is the limited common area for Unit 2 and an area in the southeastern corner of the parking lot labelled on the Condominium Site Plan as “chain link fence enclosure” is the service area for Unit 2. [Note 13]

21. The Master Deed provides that, “[T]here shall be no change in parking layout or pattern of traffic flow or access within the Common Areas from that depicted on the Site Plan without the consent of 95% of the Unit Owners, which consent shall not be unreasonably withheld, conditioned or delayed. Any cart corrals serving a Unit shall be placed within the parking area in front of such Unit, not in front of other Units.” [Note 14]

22. The Master Deed further provides: “Rules for Use of Common Areas. Each Unit Owner shall comply with the terms of the COREA with respect to the Common Areas. In the event of an inconsistency between the terms of this Master Deed and the terms of the COREA, the terms of the COREA shall control.” [Note 15]

THE SUPPLEMENTAL AGREEMENT

23. In 2001, after the Ann & Hope department store went out of business, the then-owner of the Ann & Hope Parcel, EDF Watertown, LLC, entered into a “Supplemental Agreement” with Home Depot, as the anticipated lessee of the part of the former Ann & Hope department store that was to become Unit 2, and with Stop & Shop, the anticipated lessee of the part of the former Ann & Hope department store building that was to become Unit 1 of the Condominium.

24. Home Depot, and the other parties to the Supplemental Agreement, acknowledged that the COREA governed the use of the Common Areas. In particular, Home Depot agreed “to comply with, all of the terms, conditions and provisions of the COREA to the extent that the COREA affects the Home Depot Premises…” [Note 16]

THE HOME DEPOT LEASE

25. On February 19, 2001, EDF Watertown LLC and Home Depot entered into a lease for the part of the former Ann & Hope department store that was to become Unit 2 of the Condominium. The lease incorporated the COREA and the Supplemental Agreement by reference and provided that Home Depot, as lessee, agreed to comply with the terms of the COREA and assumed the obligations of its lessor under the COREA. [Note 17]

HOME DEPOT’S IMPROVEMENTS AND USE OF THE PROPERTY

26. In connection with its lease of Unit 2, Home Depot made certain improvements in anticipation of opening a store at the leased premises. These improvements, completed by the time the Home Depot store opened in 2003, included:

a. The removal of an existing entrance vestibule and canopy on the south side of the building facing the parking lot, and the construction of a new entrance vestibule in its place in the same location, and extending to the same extent the prior vestibule and canopy over the sidewalk on the south side of the building. [Note 18]

b. Installation of a concrete rumble strip at the end of a parking aisle near the southeast corner of the building, resulting in a wider turning radius at that corner of the parking lot, with the elimination of four parking spaces (from nine to five). [Note 19]

c. Removal of traffic islands at the end of end of parking aisles closest to the south side of the building and their replacement with narrower concrete pavers, resulting in a wider driving aisle adjacent to the building, and no loss of parking spaces. [Note 20]

27. Although the dates are in dispute, it is not in dispute that at some point Home Depot installed up to fifteen cart corrals in the parking lot, thereby eliminating up to fifteen parking spaces.

28. Home Depot made some modifications to the already existing loading dock area on the east side and southeast corner of the building, which had been in use by Ann & Hope as a loading dock area as well.

29. Home Depot’s vendors leave trailers and plant racks in the parking lot; there is a dispute as to how long these items are typically left in the parking lot, but Home Depot agrees that this has been a practice since the store opened in 2003.

30. Home Depot has unilaterally designated several parking spaces in the parking lot adjacent to the store with signs stating: “Truck Rental Parking Only”, and uses these parking spaces to park trucks and vans for its truck and van rental business.

31. Home Depot has conducted periodic, mostly seasonal outdoor sales, in the parking lot every year since the store opened. These sales occur in the parking lot outside the limits of the “Garden Shop Outdoor Selling Area” as shown on the Site Plan, Exhibit C to the COREA.

32. Since 2012, Home Depot has been authorized by the Watertown Zoning Board of Appeals to conduct outdoor sales in the parking lot with the benefit of a special permit. The special permit authorizes the use of a 20,000 square foot area in the parking lot for use as a “garden center” from April through July, and for carpet sales in an 80’ x 20’ tent from August 15 through October 31. The special permit authorizes the removal of “up to 92 parking spaces from the 709 parking spaces” in the parking lot.

33. Home Depot neither sought nor received the consent, written or otherwise, of the parties to the COREA or the unit owners or trustees of the Condominium for any of the improvements or activities described above. Specifically, Home Depot did not receive separate written consent under the COREA for the construction of the new vestibule to the building, the addition of the rumble strip or the removal of the islands at the end of traffic aisles. Similarly, Home Depot did not seek or receive the permission of the parties to the COREA or the Condominium trustees for its outdoor selling activities beyond the limits of the “garden shop outdoor selling area”, for the issuance of the special permit, for the use of part of the parking lot for the parking of rental trucks and vans, or for the storage of trailers or the storage of plant racks.

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 , 643-44 (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 maybe 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).

All parties agree, as they should, that the “rules of the game” are set out in the COREA, and by incorporation of the terms of the COREA, also in the Master Deed and the Supplemental Agreement. These instruments govern the relationship of the parties to the various “common areas.” Likewise, there is no dispute that the plaintiffs have standing to seek enforcement of the COREA, [Note 21] and that the Master Deed and the Supplemental Agreement incorporate by reference the relevant provisions of the COREA.

“Ownership of a condominium unit is a hybrid form of interest in real estate, entitling the owner to both exclusive ownership and possession of his unit, and an undivided interest as tenant in common together with all the other unit owners in the common areas.” Flynn v. Parker, 80 Mass. App. Ct. 283 , 288 (2011) (quoting Berish v. Bornstein, 437 Mass. 252 , 262 (2002)). As a result, use of condominium common areas are controlled by the condominium statute, G.L. c. 183A, and the condominium master deed. Id. at 288-89. “The master deed itself provides ‘the rules of the game.’”’ Flynn v. Parker, supra, at 289 (quoting Strauss v. Oyster River Condo. Tr., 417 Mass. 442 , 452 (1994)).

“The principles governing interpretation of a deed are similar to those governing contract interpretation.” Estes v. DeMello, 61 Mass. App. Ct. 638 , 642 (2004). “The interpretation of a contract is generally a question of law.” Suffolk Const. Co. v. Lanco Scaffolding Co., 47 Mass. App. Ct. 726 , 729 (1999). Thus, instruments “that are free from ambiguity must be interpreted according to their plain terms.” Id. Because both the Master Deed and the Supplemental Agreement incorporate the COREA, the court’s primary inquiry is with respect to the rights and obligations of the parties under the COREA.

Home Depot does not dispute that in connection with the opening of its store at 615 Arsenal Street in 2003, it made physical improvements including the razing of an existing canopy and vestibule on the south side of the building, and the construction of a new vestibule in its place; it made certain physical changes to the parking lot adjacent to the store, including the construction of a concrete rumble strip, which entailed the removal of four parking spaces; and the removal of several traffic islands at the end of parking aisles and their replacement with concrete pavers to widen the traffic aisle closest to the building. Home Depot further acknowledges that it made changes to the loading dock area; that it has added cart corrals in the parking lot, resulting in the elimination of a up to fifteen parking spaces; that it or its vendors have used the parking lot adjacent to the store to store trailers and plant racks; that it has appropriated several parking spaces for parking of rental trucks and vans; and that it has, since 2003, annually conducted seasonal sales in the parking lot, since 2012 with the benefit of a special permit issued by the Watertown Zoning Board of Appeals. Home Depot acknowledges as well that it has not received consent for these improvements or activities under the COREA or from the trustees of the Condominium.

Home Depot argues that these improvements and activities are either permitted under the COREA and Master Deed, or that if they violate the COREA or Master Deed, the applicable statute of limitations has expired, or, with respect to the Master Deed, that the plaintiffs do not have standing to enforce the Master Deed. In order to assess the merits of these arguments, it is first necessary to determine the nature of the rights and obligations of the parties under the COREA.

THE COREA

Home Depot argues that even if certain of its improvements and activities violate the COREA and the Master Deed, these provisions of the COREA and the Master Deed cannot be enforced. Home Depot argues that the prohibitions against improvements and uses in the Common Areas as defined by the COREA, which include the parking lot adjacent to the Home Depot store, are restrictive covenants regulated by G. L. c. 184, §§23-30. Accordingly, Home Depot argues, the physical improvements it constructed are protected by the statute of limitations in G. L. c. 184, §23A, and the outdoor sales activities, if in violation of the restrictions, may not be enforced by injunction, and should only be subject to an award of money damages, pursuant to G. L. c. 184, §30. Home Depot also argues alternatively that the COREA, not being signed under seal, is a simple contract, and that violations of its provisions are not enforceable beyond the six-year statute of limitations in G. L. c. 260, §2. [Note 22]

The COREA is a comprehensive document that imposes a combination of affirmative easement rights and negative restrictions on the respective owners of the four parcels of land making up the Arsenal Mall. As it pertains to the Ann & Hope Parcel, part of which is occupied by Home Depot, it restricts construction of buildings to the “permissible building area”, it grants affirmative rights to the owner of the three Developer Parcels to use the Common Areas (parking lots and roadways) on the Ann & Hope Parcel, and it imposes restrictions against construction of improvements on the Common Areas that would impair their utility for their intended purposes. The COREA grants corresponding rights to the owner of the Ann & Hope Parcel with respect to the parking facilities and internal roadways on the Developer Parcels and imposes similar restrictions on the owner of the Developer Parcels in order to protect those easement rights.

Home Depot’s argument that the COREA, at least as it pertains to improvements and activities in the Common Areas (the parking lots and roadways) of the Ann & Hope Parcel, constitutes a restrictive covenant subject to the statute of limitations in G. L. c. 184, §23A and the enforcement limitations in G. L. c. 184, §30, is misplaced. The distinction between an affirmative easement, which is not subject to G. L. c. 184, §§23-30, and a negative restriction, is well-established. “An affirmative easement ‘creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement.’” Patterson v. Paul, 448 Mass. 658 , 663 (2007), quoting Restatement (Third) of Property. On the other hand, “[a] restriction on the use of land is a right to compel the person entitled to possession of the land not to use it in specified ways.” LaBounty v. Vickers, 352 Mass. 337 , 347 (1967). A restriction, or negative easement, “consists solely of a veto power.” Patterson v. Paul, supra, at 663. Affirmative easements, that is, those which grant nonpossessory rights over the land of another, as opposed to those which merely prohibit the owner of land from making a particular use of the land, are not subject to the limitations on restrictive covenants contained in G. L. c. 184, §§26-30. Id., at 347. Nor are such affirmative easements restrictions that are subject to the time limitations contained in G. L. c. 184, §23. Patterson v. Paul, supra, at 663 (“An affirmative easement is not considered to be a ‘restriction’ affecting the use of real property such that it is subject to the statutory time limitation imposed by G. L. c. 184, §23”). By extension, an affirmative easement also is not subject to the statute of limitations for building additions found in G. L. c. 184, §23A.

The rights sought to be enforced by the plaintiffs in this action are not simply the “veto power” to prevent Home Depot from making improvements or conducting activities on property of which it is in possession. The nature of the plaintiffs’ rights under the COREA are affirmative easement rights to the use of the parking lot for parking by customers of the successors in interest of the owners of the Developer Parcels. The COREA grants the owners of the Developer Parcels affirmative easement rights, “to use the parking facilities for the parking and passage of motor vehicles (and trucks, so long as there is no unreasonable interference with customers’ and employees’ parking) and passage by pedestrians.” [Note 23] The corresponding prohibition against improvements in the Common Areas (with certain exceptions, as to which, see infra), and against outdoor selling except in the “garden shop” area, found in Section 14.3 of the COREA, are on their face an enforcement mechanism to protect the integrity of the parking lot so that it remains available for its intended use for the parking of vehicles by customers of both the owners of the Ann & Hope Parcel and the Developer Parcels. Any improvement that materially decreases the availability of the parking lot for parking would negatively impact the utility of the affirmative easement granted to the owners of the dominant estate. Even an essentially negative restriction, such as a view easement, when coupled with the affirmative right of the owner of the dominant estate to enter onto the servient estate to take action, such as the trimming of trees, to protect the view easement, is deemed to be an affirmative easement that is not subject to the restrictions contained in G. L. c. 184, §§23-30. Patterson v. Paul, supra. The present case does not present nearly as close a question as that presented in Patterson v. Paul.

Accordingly, the COREA is not governed by the provisions of G. L. c. 184, §§23-30. If outdoor selling beyond the garden shop area, and improvements and other activities in the Common Areas that affect the utility of the easements granted to the owners of the dominant estate are prohibited by the COREA, G. L. c. 184, §23A and G. L. c. 184, §30 are not available to bar enforcement of the prohibitions in the COREA. In light of the court’s determination that the COREA does not constitute a restrictive covenant subject to G. L. c. 184, §§23-30, each of the improvements and activities at issue in this matter are considered below.

Outdoor Sales in the Parking Lot

Home Depot acknowledges that its practice of annually taking over parts of the parking lot for seasonal sales of plants, Christmas trees, grills and the like, with no consent under the terms of the COREA, is prohibited by the COREA. Home Depot argues in its brief that it and its predecessor Ann & Hope have been conducting these activities in the parking lot “for decades”. In support of this claim, it offers the affidavit of Lorianne Camilli, who offers that Home Depot has conducted seasonal sales in the parking lot and on the apron in front of the store “since the Store opened in 2003.” She further offers that in “most years” there is a tent sale of rugs in the parking lot. Home Depot also offers copies of permits issued by the Town of Watertown demonstrating that permits were issued to Ann & Hope for the erection of tents for Memorial Day, Columbus Day, or Labor Day tent sales in the parking lot in 1995, 1996, 1997 and 1998. [Note 24]

As an affirmative easement, the rights of the plaintiffs and those under whom they claim their rights, could be extinguished by adverse use. See Emery v. Crowley, 371 Mass. 489 , 495 (1976); Delconte v. Salloum, 336 Mass. 184 , 188 (1957). To terminate an easement by adverse use, “there must be an element of adverse use by the owner of the servient estate inconsistent with the continuance of the easement ... or a use which would be privileged if, and only if, the easement did not exist and such use is both adverse as to the owner of the easement and ... for the period of prescription, continuous and uninterrupted.” Lemieux v. Rex Leather Finishing Corp., 7 Mass. App. Ct. 417 , 422 (1979) (internal quotations and citation omitted); New England Home for Deaf Mutes v. Leader Filling Stations, 276 Mass. 153 , 159 (1931). “Acts of possession which are ‘few, intermittent and equivocal’ do not constitute adverse possession.” Kendall v. Salvaggio, 413 Mass. 619 , 624 (1992), quoting in part Parker v. Parker, 83 Mass. 245 , 247 (1861). “The period of time over which adverse use must be exercised so as to extinguish an easement is the same period as that required to establish a right by prescription--twenty years.” Lemieux, supra, at 422 n. 6.

Even assuming, arguendo, that the seasonal sales activities conducted in the parking lot were not too “few, intermittent and equivocal” to constitute an adverse use of the parking lot so as to extinguish the easement, there is no suggestion in the record that such activities have occurred continuously for twenty years, since no evidence was presented of such sales occurring for a period of four years from 1999 through 2002. Hence, as a matter of law, Home Depot cannot prevail on a claim of extinguishment by adverse possession or prescriptive easement.

Nor could Home Depot reasonably claim that the use of the parking lot for seasonal outdoor sales is permitted by Sections 7.4 or 14.3(B) of the COREA. Section 7.4 provides in relevant part that an owner, “shall have the right from time to time to make changes and modifications in and to the parking areas located on (each parcel), which are minor in nature or which do not adversely affect the Owners of the other Parcels.” Section 14.3(B) provides in relevant part, “[N]o fence, structure or other obstruction of any kind…except for decorative features and customer conveniences, shall be placed, kept, permitted or maintained upon the Common Areas…” Home Depot obtained from the Watertown Zoning Board of Appeals in 2012 a special permit authorizing it, pursuant to the Watertown Zoning Bylaw, to occupy up to 20,000 square feet of the parking lot and eliminate up to 92 parking spaces out of a total of 709 parking spaces, from April through July and from August 15 through October 31 each year for the purpose of conducting outdoor sales in the parking lot. [Note 25] The authorization by the Zoning Board, in the absence of consent by the owner of the dominant estate, does not extinguish the plaintiffs’ rights in the parking lot, but it does serve to define the extent of the area claimed and sought to be used by Home Depot. There can be no serious argument that, whatever the limits of the minor modifications allowed by Section 7.4 of the COREA, that section does not allow as a “minor modification” the elimination of 13 percent of the parking spaces for more than six and one half months each year. Nor can there be any serious argument that appropriation of 20,000 square feet of the parking lot for non-parking purposes for more than half the year does not constitute an “obstruction” in violation of Section 14.3 of the COREA.

Parking of Rental Trucks

Home Depot asserts that it has been parking three rental trucks or vans in spaces that it has designated in the parking lot, since the store opened in 2003. A photographic exhibit to the second amended complaint shows that Home Depot has installed signage adjacent to these parking spaces stating, “Truck Rental Parking Only.” The conduct of a truck rental business in the parking lot is not a permitted activity in the parking lot under the COREA, and violates the prohibition against outdoor sales except in the garden shop area. An interference with the availability of parking spaces for a use not authorized by Section 7.4 or Section 14.3 is a violation of the COREA, and cannot be justified under any other argument offered by Home Depot (see discussion re: outdoor sales, supra).

The apparent justification that this is an activity that is necessary to Home Depot’s business does not justify violation of the COREA and does not authorize Home Depot to permanently occupy property that is not part of its leased premises or to which it has any other right of occupation. Home Depot’s conduct in this regard, by which it is prepared to appropriate property that it believes it needs for its own purposes, and is willing to pay money damages in return, is a form of attempted private eminent domain. As the Supreme Judicial Court has made clear, private parties do not have the right in Massachusetts to take property just because they need it and are willing to pay damages. See Goulding v. Cook, 422 Mass. 276 (1996) (property owner may not utilize neighbor’s land for septic system, despite unsuitability of property owner’s land for placement of septic system).

Plant Racks and Trailer

The plaintiffs allege, and Home Depot does not deny, that Home Depot uses the parking lot to store plant storage racks and a truck trailer (shown on Exhibits E, F1 and F2 to the second amended complaint), each of which take up several parking spaces. Home Depot disputes the period of time that these items have been in place, [Note 26] and disputes that it has placed them in the parking lot, stating that they were placed in the parking lot by Home Depot’s vendors. The court finds that for the purposes of this motion, Home Depot’s vendors are persons or entities who are agents, invitees or others for whom Home Depot is responsible.

Home Depot does not argue that these activities are authorized by Sections 7.4 or 14. 3 of the COREA, but instead argues that they are permitted by Section 6.2(A)(1) and Section 6.2(A)(3) of the COREA, which grant to the owners easements as follows:

(1) Easements to use the parking facilities for the parking and passage of passenger motor vehicles (and trucks, so long as there is no unreasonable interference with customers’ and employees’ parking) and passage by pedestrians;…

(3) Easements to use the various walkways and all other portions of the Common Areas for the general use of the Grantees, the Grantor and the invitees of either.

These provisions do not authorize the storage of plant storage racks or a truck trailer (unattached to a tractor cab) in the parking lot. The storage of an immobile trailer is not the same as the parking of a truck. Further, the authorization to use the Common Areas for the “general use” of the grantors, grantees and their invitees cannot be construed to allow activities by Home Depot’s vendors, as its invitees, that Home Depot itself would be prohibited from conducting by Section 14.3, which prohibits “obstructions” of the Common Area parking lots. As for the plant storage racks, they are no less obstructions than are the rental trucks that are in permanently appropriated parking spaces. Nothing in the COREA authorizes Home Depot to convert the parking lot into an outdoor inventory or equipment storage room accessory to its retail operation.

Improvements in the Parking Lot

In connection with the opening of the store in 2003, Home Depot, without seeking or obtaining any approval under the COREA, made the following improvements in the parking lot adjacent to the store: it installed a concrete rumble strip at the end of a parking aisle near the southeast corner of the building, resulting in a wider aisle available for a turn at the corner of the parking lot closest to the southeast corner of the building, at the expense of the loss of four parking spaces; and it removed traffic islands at the end of the parking aisles closest to the south side of the building, replacing them with narrower concrete pavers in order to widen the driving aisle along the south side of the building where customers enter, with no loss of parking spaces. [Note 27]

The validity of these modifications is entirely dependent on whether they comply with the minor modifications to the Common Area parking lots permitted by Section 7.4 of the COREA, and the changes excepted from the prohibitions in Section 14.3. Section 7.4 of the COREA provides in full as follows:

7.4 Changes to Parking Areas. An Owner shall have the right from time to time to make changes and modifications in and to the parking areas located on the Developer Parcel, the Market Parcel and the Ann & Hope Parcel, as applicable, which are minor in nature or which do not adversely affect the Owners of the other Parcels. No Owner shall make any changes or modifications of any other nature in and to the parking areas located on its Parcel without the prior written consent of the other Owners, which consent shall not be unreasonably withheld.

Correspondingly, Section 14.3 of the COREA provides that, “[N]o fence, structure or other obstruction of any kind…except for decorative features and customer conveniences, shall be placed, kept, permitted or maintained upon the Common Areas…”

The plaintiffs make no argument or showing that the purpose of these two specific modifications to the parking lot, the slight increase in the width of the driving aisle closest to the building, with no loss of parking spaces, and the introduction of a rumble strip to improve the safety of turns near the corner of the building, are for any purpose other than to improve traffic flow and safety and for customer convenience. Although plaintiffs assert that the totality of changes to the parking lot by Home Depot resulted in the loss of thirty-three parking spaces, that estimate is based on a comparison of Home Depot’s changes with the special permit plan approved in 1981, and not on a comparison of those changes with the actual existing conditions on the ground at the time Home Depot became involved with the property in 2001. There is therefore no material dispute of fact that the only loss of parking spaces from the two specific changes discussed above, is the loss of four parking spaces as a result of the construction of the rumble strip. The plaintiffs make no argument or showing that the loss of approximately one half of one percent of the parking spaces in the parking lot in order to facilitate the installation of a wider aisle and a safer turn is anything other than minor in nature or that these specific modifications adversely affected the rights of the plaintiffs or the owners of the other parcels. Nor can any argument be made that the slight widening of the driving aisle or the introduction of the rumble strip constitutes a “structure or obstruction” prohibited by Section 14.3 of the COREA.

Accordingly, the court finds and rules that the removal of the traffic islands and their replacement with concrete pavers, and the installation of the rumble strip, complied with the permission granted for minor modifications to the parking lot in Section 7.4 and did not violate Section 14.3 of the COREA.

Cart Corrals

The plaintiffs assert that “cart corrals”, metal frames placed over parking spaces and used to collect shopping carts, are placed in the parking lot in violation of the COREA. The plaintiffs assert that as many as fifteen parking spaces are taken up by cart corrals. [Note 28] Plaintiffs acknowledge that cart corrals are “customer conveniences” permitted in the Common Areas by Section 14.3(B) of the COREA, but argue that they are not permitted to be located so as to eliminate parking spaces. [Note 29] This is a forced and incorrect interpretation of the COREA. Section 14.3 explicitly makes “customer conveniences” an exception to the prohibition against the placement of any “structure, or other obstruction of any kind” in the Common Areas. There is no requirement that such customer conveniences be shown on the site plan attached to the COREA to be authorized, nor is there any explicit limitation on the number of such customer conveniences that can be placed in the Common Areas, although, at least impliedly, the number must be reasonable in the context of the size of the parking lot and the total number of parking spaces. The court declines to find that the fifteen parking spaces asserted to be lost to cart corrals is an unreasonably high number.

Dumpster in the East Service Area

The Dumpster in the so-called East Service Area is not in a part of the Common Areas reserved for parking of vehicles. This is an area shown on all of the 2001 plans in the record, including the Condominium Site Plan, as “Chain Link Fence Enclosure”. Its use as a Dumpster location therefore does not interfere with any of the easement rights reserved to the plaintiffs, as it does not obstruct or interfere with any parking or passage rights reserved to the plaintiffs or others.

Loading Dock Area

The plaintiffs do not contend that Home Depot has made any unauthorized modifications to the loading dock area on the east side and the southeast corner of the building. Rather, the plaintiffs contend that Home Depot is using the loading dock area for unauthorized outdoor sales. Home Depot acknowledges what might be termed some incidental sales of materials stored at the loading dock area, but denies that it actually conducts outdoor sales from the loading dock area. To the extent the loading dock area is being utilized for outdoor sales, such sales are prohibited for reasons stated above.

Vestibule

Prior to Home Depot’s involvement with the property, the Ann & Hope department store building included a vestibule and canopy on the south side of the building facing the parking lot. The vestibule and canopy extended out over the sidewalk along that side of the building to the same extent as the vestibule constructed by Home Depot in the same location. It is not clear from the record whether or not the vestibule as constructed by Home Depot is entirely within the “Ann & Hope Fee Parcel Permissible Building Area” pursuant to Article 4, Section 4.1 of the COREA. However, this disputed fact is not material because Section 4.1 allows the owner of the Ann & Hope Parcel to “construct and/or renovate” the building on the Ann & Hope Parcel. To the extent that the vestibule constructed by Home Depot prior to the store opening in 2003 extends into the Common Area and beyond the limits of the “Permissible Building Area”, the court finds that the construction of the vestibule in its present location is permitted by Section 4.1 of the COREA as part of the “renovation” of the existing building, since the new vestibule was constructed in the same location as the previously existing vestibule and canopy.

THE MASTER DEED AND THE SUPPLEMENTAL AGREEMENT

There is a dispute between the parties whether the plaintiffs, as the owner and former owner of Unit 1 of the Condominium, have standing to enforce the provisions of the Master Deed of the Condominium against the owner (and lessee) of Unit 2, occupied by Home Depot, for alleged violations of the provisions of the Master Deed governing the use of the parking lot, which is a Common Area under the Master Deed as well as under the COREA. However, the Master Deed provides that the use of the Common Areas is to be governed by the COREA, that the unit owners are required to comply with the COREA, and that in the event of a conflict between the COREA and the Master Deed, the COREA shall govern. [Note 30] Therefore, it is not necessary to reach the question of the plaintiffs’ standing to enforce the Master Deed, or to reach the question whether the plaintiffs’ rights under the Master Deed have been violated, since they are the same as the rights under the COREA. Similarly, the Supplemental Agreement incorporated the terms of the COREA and required its signatories to comply with the COREA. Accordingly, since the court has determined the parties’ respective rights under the COREA, it is unnecessary to reach the parties’ separate (but identical) claims under the Master Deed and the Supplemental Agreement.

CONCLUSION

For the reasons stated above, Home Depot’s motion for summary judgment is ALLOWED with respect to its claims concerning improvements in the parking lot adjacent to its store, with respect to the cart corrals in the parking lot, with respect to the vestibule, and with respect to the Dumpster maintained by it in the East Service Area. Summary judgment is ALLOWED for the plaintiffs with respect to their claims concerning outdoor sales in the parking lot and the loading dock area, the parking of rental trucks and vans in the parking lot, and the storage of plant racks and trailers in the parking lot.

Judgment will enter in accordance with this Decision.