ARSENY VUZMAN and DANA VUZMAN v. WILLIAM KALES, NANCY KALES, JENNIFER KALES, AND JDM HOME IMPROVEMENT, LLC [Note 1]

This case arises from a dispute between owners of two condominium units over Plaintiffs' ability to access a portion of their "exclusive right area" by traversing the Defendants' "exclusive right area." Plaintiffs Arseny Vuzman and Dana Vuzman ("Plaintiffs" or the "Vuzmans") filed a three-count Complaint on September 8, 2015, seeking equitable relief, a declaration of rights, and damages against Defendants, William Kales and Nancy Kales ("Defendants" or the "Kaleses"). The court denied the Plaintiffs' application for a preliminary injunction after hearing on September 28, 2015, determining that Plaintiffs had failed to demonstrate a likelihood of success on the merits.

Also on September 28, 2015, Plaintiffs filed a First Amended Complaint, in which they seek to enjoin Defendants from installing a fence that they claim would prevent them from accessing and using land in which they have exclusive rights. They also seek declaratory judgments that there is an implied easement by necessity over a portion of the condominium common area which has been designated for the exclusive use of the Defendants' unit, and that the installation of a fence violates Plaintiffs' rights under certain provisions of the condominium master deed. On October 26, 2015, the Defendants answered and counterclaimed for trespass, seeking both injunctive relief and damages. On January 19, 2016, Plaintiffs filed a motion to dismiss the counterclaims. After considering the legal memoranda filed by the Parties, the court denied Plaintiffs' Motion to Dismiss on October 12, 2016, without hearing, pursuant to Land Court Rule 6. On the same date, the Court denied the Plaintiffs' motion for leave to file a second Amended Complaint, after determining that the claims Plaintiffs sought to add were not within the subject matter jurisdiction of the Land Court.

On November 18, 2016, Defendants filed a Motion for Judgment on the Pleadings under Mass. R. Civ. P. 12(c) as to all of the Plaintiffs' claims against them. [Note 2] Now, the Parties having submitted their respective memoranda of law in favor of, and in opposition to, the Rule 12(c) Motion, the court decides the matter without hearing pursuant to Land Court Rule 6. For the reasons discussed below, Defendant's Motion for Judgment on the Pleadings is ALLOWED.

FACTS [Note 3]

Both Plaintiffs and Defendants are unit owners in a two-unit, residential condominium known as the 129-131 Cypress Street Condominium located in Newton, Massachusetts (the "Cypress Street Condominium"). Plaintiffs have owned Unit 131 in the Cypress Street Condominium since June 17, 2014. Defendants have owned Unit 129 since December 1, 2014. [Note 4] The Cypress Street Condominium Master Deed and Declaration of Trust were executed on November 26, 1991, and were recorded with the Middlesex South Registry of Deeds in Book 21567, Page 198 and Page 213, respectively. Arseny Vuzman and William Kales are both Trustees of the Cypress Street Condominium Trust.

According to the Master Deed (attached as Exhibit E to the First Amended Complaint), the Cypress Street Condominium consists of a 12,877 square foot parcel of land with the buildings thereon (the "Premises"). The two-family residential building on the Premises (the "Condominium Building") contains two residential units – Unit 129 and Unit 131. In addition to describing the physical boundaries of each of the two Units within the Condominium Building, the Master Deed at Paragraph 4 provides that

Each Unit shall have appurtenant thereto, the following exclusive rights and easements, exercisable subject to and in accordance with the provisions and requirements of Paragraph 5 of this Master Deed and the provisions of the Trust and the rules and regulations promulgated pursuant thereto: to use (i) the front, side and rear yards designated on the Plans as appurtenant to each Unit, (ii) the front entry steps and walkway designated on the Plans as appurtenant to each Unit, and (iii) the driveway and parking space(s) designated on the floor plans as being appurtenant to that Unit.

Paragraph 5 of the Master Deed defines the "'Common Areas and Facilities' (also called herein 'Common Elements')" as "consist[ing] of the Premises, including without limitation the following:

(a) The land and except as set forth above, lawns, gardens, walks pathways, parking and other improved areas not within the Units or designated for the exclusive use of a particular Unit in Paragraph 4 above.

(b) All portions of the Building not included in any Unit or designated for exclusive use of a particular Unit by virtue of Paragraph 4 above….

(c) Such additional common areas and facilities as may be defined in Chapter 183A which are not included within the boundaries of the Unit.

Paragraph 5 of the Master Deed further provides that "[e]ach Unit has exclusive rights to portions of the Common Elements, e.g., entry steps, parking spaces and yards, all as more particularly described in Paragraph 4." Pursuant to Paragraph 5, the Owners of each Unit are entitled to an undivided 50% interest in the Common Area and Facilities or Common Elements, and the Common Areas and Facilities are subject to the 129-131Cypress Street Condominium Trust By-laws "recorded herewith (the 'Condominium Trust')." [Note 5]

Recorded with the Master Deed are eight plans, including Drawing 1 of 8, entitled "Site Plan." [Note 6] The remaining seven drawings consist of the floor plans and elevations of the Condominium Building. The Site Plan (included with this Decision as a sketch) delineates the portions of the Premises which are designated as "exclusive right" for Unit 129 and those designated as "exclusive right" for Unit 131. Combined, the two exclusive right areas incorporate all of the land not covered by a building. [Note 7]

As shown on the Site Plan, the exclusive right area for Plaintiffs' Unit 131 encompasses a portion of the Premises' front yard, including the parking area for Unit 131, and continues along the southeast side of the Condominium Building, narrowing to four feet in width for a distance of approximately 60 feet where it runs parallel to the Unit 129 exclusive right area directly behind the Condominium Building, before opening up into the rearmost portion of the Unit 131 exclusive right area at the far southern end of the Premises. The Site Plan depicts the Unit 129 exclusive right area as covering the remainder of the Premises, including the yard area directly behind the Condominium Building. Neither exclusive right area includes the Barn.

As depicted on the Site Plan, the only way to access the rear-most portion of Plaintiffs' exclusive right area, without crossing the Unit 129 exclusive right area, is via the strip of land running along the southeast side of the Premises. Plaintiffs allege that "[i]n order to safely access and utilize land they own, they would utilize stairs located on the Kales' [sic] property, which would lead down to the Vuzmans [sic] property." They also allege that a steep slope and an approximately four foot high retaining wall running through most of the Premises leave Plaintiffs "no other way to access their land except to walk a path through the Kales land." The First Amended Complaint does not allege the exact location of the stairs, identify where and how steep the slope is, nor identify the location or length of the retaining wall. And none of these features are indicated on the Site Plan or described in the Master Deed.

When, in April of 2015, Defendants informed Plaintiffs that they were going to remove the existing stairs and install a fence around the backyard portion of the Unit 129 exclusive right area, Plaintiffs objected to these changes, which they viewed as preventing access to their own rear yard. In particular, Plaintiffs allege that the installation of a fence "would entirely eliminate the Vuzmans [sic] ability to safely access and utilize their land." They also allege that "[s]hould the Kales fence be installed as proposed, the only way for the Vuzmans to safely obtain access to the rear yard would be to trespass on the land of a neighbor or to make substantial costly modifications to their land." [Note 8]

DISCUSSION

A defendant's motion for judgment on the pleadings under Mass. R. Civ. P. 12(c) tests the legal sufficiency of the complaint. It is akin to a motion to dismiss under Mass. R. Civ. P. 12(b)(6), in that a 12(c) motion essentially argues that the complaint fails to state a claim upon which relief can be granted. Jarosz v. Palmer, 436 Mass. 526 , 529 (2002). In reviewing a 12(c) motion, the judge is limited to the complaint and the answer. Ridgeley Mgmt. Corp. v. Planning Bd. of Gosnold, 82 Mass. App. Ct. 793 , 801 (2012). All well-pleaded facts alleged by the nonmoving party are assumed to be true. Champa v. Weston Public Schools, 473 Mass. 86 , 90 (2015); Jarosz, 436 Mass. at 530.

In order for a plaintiff to meet his obligation to state a claim upon which relief can be granted, the factual allegations in the complaint must plausibly suggest an entitlement to relief. Iannacchino v. Ford Motor Company, 451 Mass. 623 , 636 (2008). "'Judgment on the pleadings may be entered if a plaintiff fails to present sufficient facts in the complaint to support the legal claims made.'" Welch v. Sudbury Youth Soccer Ass'n, Inc., 453 Mass. 352 , 354 (2009) (quoting Flomenbaum v. Commonwealth, 451 Mass. 740 , 742 (2008)). Legal conclusions are not "facts." Schaer v. Brandeis Univ., 432 Mass. 474 , 477-78 (2000) (court need "not accept legal conclusions cast in the form of factual allegations" as true for purposes of a motion to dismiss).

As discussed below, the factual allegations in the First Amended Complaint do not plausibly suggest any right to relief with respect to Plaintiffs' claims under Counts I and II that Defendants' actions violate Plaintiffs' rights under Paragraphs 4 and 5 of the Master Deed. The facts alleged in the Amended Complaint also do not plausibly suggest the existence of an implied easement by necessity across Defendants' exclusive right area. Accordingly, the Defendants are entitled to Judgment on the Pleadings in their favor.

Claims Under the Declaration of Trust

In Count I of the First Amended Complaint, Plaintiffs assert violations of Article V, Section 5.5.2 of the Declaration of Trust, on the basis that William Kales, as a Trustee of the Condominium Trust, failed to submit the proposed improvements (i.e., removal of stairs and installation of a fence) to the Unit Owners for authorization to proceed with same. [Note 9] In Count II of the First Amended Complaint, Plaintiffs allege to have suffered undue inconvenience and irreparable harm as a result of Defendants removing, what they characterize as, the "Stair Easement" and modifying, what they characterize as, the "Rear Yard Pathway" "in a manner which violates the Master Deed Paragraph 4 and Master Deed Paragraph 5 and the laws regarding implied easements." They allege that Defendants' actions consequently violate the provisions of Section 5.8.6 of the Declaration of Trust requiring that all additions, alterations or improvements to any Unit be performed in compliance with all applicable regulations and codes. I find that the factual allegations in Plaintiffs' First Amended Complaint, taken as true, are not legally sufficient to support the claims asserted under Counts I and II.

1. Section 5.5.2 of the Declaration of Trust

Section 5.5.2 of the Declaration of Trust requires that

[i]f and whenever the trustees shall propose to make any improvements to the common areas and facilities of the Condominium or shall be requested in writing by the Unit owners holding twenty-five percent (25%) or more of the beneficial interest in the Trust to make any such improvements, the Trustees shall submit to all Unit Owners (a) a form of agreement specifying the improvement or improvements proposed to be made and the estimated costs thereof, and authorizing the Trustees to proceed to make the same, and (b) a copy of the provisions of Section 18 of Chapter 183A. [Emphases added]

Plaintiffs assert in Paragraph 43 of the First Amended Complaint that the "Trustee for the Kaleses Unit" failed to provide the form of agreement and a copy of the G.L. c. 183A, § 18 provisions to all Unit owners. Plaintiffs' allegations fail to state any claim for relief under this section of the Trust for several reasons.

First, the improvements complained of were made to the Unit 129 exclusive right area by Defendants as Unit owners – not by the Trustees. Thus, on its face, Section 5.5.2 does not apply.

Second, although William Kales is one of the Trustees of the Cypress Street Condominium Trust, this fact does not make the Kaleses' actions the actions of the Trustees. According to Section 3.1 of the Declaration of Trust, there are two Trustees – one representing each of the two Units. Plaintiff Arseny Vuzman is the second trustee. According to Section 3.2 of the Declaration of Trust, actions by the Trustees require a majority vote. Without Arseny Vuzman's vote to make the improvements, there can be no majority vote and consequently, no action taken by the Trustees. There are no allegations in the First Amended Complaint that there has been a majority vote of the Trustees regarding the installation of the fence, removal of the stairs, or alteration of the alleged pathway.

Third, to the extent that the Plaintiffs' complaint can be read as an attempt by Plaintiffs, as Unit owners, to have the court revoke an unauthorized action of a single trustee, William Kales, such claim is not properly before this court. Notably, Section 5.5.3 of the Declaration of Trust sets out the procedures to be used "in the event that any Unit Owner(s) dissent from any determination of the Trustees with respect to the value of the condominium or any other determination or action of the Trustees under Section 5.5," which includes submission of the matter to arbitration. Even the broadest reading of the First Amended Complaint does not state a proper claim relative to a dispute between any Unit owner and the Trustees. [Note 10]

Finally, to the extent Arseny Vuzman, as a Trustee is attempting to assert a fiduciary claim against William Kales, as Trustee, such a claim is outside of this court's subject matter jurisdiction. See Cigal v. Leader Dev. Corp., 408 Mass. 212 , 219 (1990) (holding that breach of fiduciary duties claims against condominium Trustees can only be asserted via a derivative suit).

2. Section 5.8.6 of the Declaration of Trust

Paragraph 53 of the First Amended Complaint quotes the following language contained in subsection 5.8.6.B of the Declaration of Trust:

All additions, alterations or improvements to any unit (whether or not affecting the structural or mechanical systems of the Condominium) shall be performed in compliance with all applicable laws, regulations and codes, and when required thereby by licensed contractors, and in such a manner as not unduly to inconvenience or disturb the occupants of the Condominium. [Emphasis Added].

Plaintiffs allege under Count II that installation of the fence and removal of "areas of common use" violates the rights granted to Plaintiffs by the terms of Paragraphs 4 and 5(a) of the Master Deed, thereby violating "all applicable laws, regulations and codes" in contravention of Subsection 5.8.6.B of the Declaration of Trust.

As a threshold matter, neither removal of the stairs nor installation of the fence, involve any "additions, alterations or improvements to any unit." Based on the factual allegations, it is plain that these changes occurred on land located outside the Condominium Building which houses the two Units, on the Unit 129 exclusive right portion of the Common Area and Facilities. Accordingly, where the plain language in subsection 5.8.6.B makes its provisions applicable to improvements or alterations to any Units, the Amended Complaint does not state a plausible claim for violation of Section 5.8.6 of the Declaration of Trust, even if the words "applicable laws, regulations and codes" were to be interpreted, as Plaintiffs assert, as including the terms of the Master Deed.

Claims Under the Master Deed

The First Amended Complaint also does not support a claim that Defendants have violated either Paragraphs 4 or 5(a) of the Master Deed.

1. Master Deed, Paragraph 4

Paragraph 4 of the Master Deed is entitled, "Floor plans, Designation of Units and Their Boundaries." It defines the Units in the Condominium, as required by G.L. c. 183A, § 8(d). In addition to describing the physical boundaries of the Units within the Condominium Building, Paragraph 4 recites that each Unit shall have appurtenant to it the

exclusive rights and easements, exercisable subject to and in accordance with the provisions and requirements of Paragraph 5 of this Master Deed and the provisions of the Trust and the rules and regulations promulgated pursuant thereto: to use (i) the front, side and rear yards designated on the Plans as appurtenant to each Unit, (ii) the front entry steps and walkway designated on the Plans as appurtenant to each Unit, and (iii) the driveway and parking space(s) designated on the floor plans. [Emphasis added.]

Based upon the facts alleged in the First Amended Complaint, I find no merit in Plaintiffs' claim that removing the stairs and installing fencing on the rear yard portion of Defendants' exclusive right area violates Plaintiffs' rights in the Common Areas and Facilities under Paragraph 4. By the very terms of Paragraph 4, each Unit has appurtenant to it the exclusive rights and easements "to use…the front, side and rear yards designated on the plans as appurtenant to such Unit."

Plaintiffs' allegations concerning the installation of fencing and removal of stairs relate to work done by Defendants within the exclusive right area designated on the plans as appurtenant to their Unit 129. There is no allegation that the work was done on any part of the Common Areas and Facilities outside the designated exclusive right area for Unit 129. Moreover, there are no provisions in the Master Deed that grant the owners of Unit 131 any rights to use any portion of the Unit 129 exclusive right area. Accordingly, Plaintiffs' factual allegations do not suggest a plausible claim that Defendants have violated Plaintiffs' rights under Paragraph 4 of the Master Deed.

2. Master Deed, Paragraph 5(a)

Plainitffs also claim that Defendants' installation of a fence and removal of "areas of common use" violate the rights granted under Paragraph 5(a) of the Master Deed, entitled "Common Elements." Paragraph 5 of the Master Deed defines the "Common Areas and Facilities or Common Elements" as including, without limitation,

(a) The land and except as set forth above, lawns, gardens, walks, pathways, parking and other improved areas not within the Units or designated for the exclusive use of a particular Unit in Paragraph 4 above.

(b) All portions of the Building not included in any Unit or designated for the exclusive use of a particular Unit by virtue of Paragraph 4 above….

(c) Such additional common areas and facilities as may be defined in Chapter 183A which are not included within the boundaries of the Unit.

Each Unit has exclusive rights to portions of the Common Elements, e.g., entry steps, parking spaces and yards, all as more particularly described in Paragraph 4.

The Owners of each Unit shall be entitled to an undivided interest in the Common Areas and Facilities in the percentages shown on Exhibit B attached to this Master Deed and incorporated herein by reference. [Note 11] These percentage interests have been computed in conformance with Chapter 183A…. The Common Areas and Facilities shall be subject to the provisions of the By-laws or 129-131 Cypress Street Condominium Trust recorded herewith (the "Condominium Trust") and any rules and regulations from time to time in effect pursuant thereto.

[Emphases added.]

Paragraph 5 of the Master Deed concludes:

If any portion of the Common Elements of the Condominium shall actually encroach upon any Unit or if any Unit shall actually encroach upon any portion of the common areas or any other Unit, as these are shown on the Plans, there shall be deemed to be mutual easements in favor of the Unit Owners collectively as owners of the common areas and the respective individual Unit Owners involved to the extent of such encroachment so long as the same shall exist.

The factual allegations in Count II of the First Amended Complaint do not present a plausible claim that Defendants' removal of stairs and installation of a fence violate Plaintiffs' rights in the Common Areas under the language of Master Deed Paragraph 5. The allegations make clear that the removal of stairs and the installation of a fence occurred on the exclusive right area appurtenant to Unit 129. Based upon the facts alleged none of that work encroaches on Unit 131 or on any non-exclusive portion of the common area. Thus, for the same reasons stated with respect to the Paragraph 4 claim – i.e., that nothing in the Master Deed grants Unit 131 any rights to the Unit 129 exclusive use area – the factual allegations contained in the Amended Complaint do not support a claim that Defendants' actions violate any rights of Plaintiffs under Paragraph 5 of the Master Deed.

Claims Asserting an Implied Easement by Necessity

Plaintiffs assert under Count III that they hold an "implied easement by necessity" through Defendants' exclusive right area because they otherwise cannot access the rearmost portion of their own exclusive right area. In making this claim, the Vuzmans misapprehend the peculiar nature of condominium ownership. Ownership of a condominium unit is a "hybrid interest in real estate, entitling the owner to both exclusive possession of his unit and an undivided interest as tenant in common with other unit owners in the common areas." Lallo v. Szabo, 75 Mass. App. Ct. 1 , 4 (2008) (citing Noble v. Murphy, 34 Mass. App. Ct. 452 , 455-456 (1993)). Accordingly, the situation presented in the instant case does not meet the requisites for creation of an easement by implication or necessity. Contrast New England Cont'l Media, Inc. v. Town of Milton, 32 Mass. App. Ct. 374 , 378 (1992) ("An easement is said to arise (or be implied) by necessity when a common grantor carves out what would otherwise be a landlocked parcel."); Kitras v. Town of Aquinnah, 474 Mass. 132 , 140 (2016) ("A presumption of easement by necessity arises upon a showing of the following elements: (1) unity of title; (2) severance of that unity by a conveyance; and (3) necessity arising from the severance, most often when a lot becomes landlocked."). Simply put, because this case involves a condominium development submitted to Chapter 183A, which does not, by its very nature, involve a division of land into separately owned parcels, the common law theory of implied easements does not apply here. From the time of execution of a master deed, the rights in and to the condominium are defined by the master deed and Chapter 183A of the General Laws.

The Premises (land and buildings) at 129-131 Cypress Street were submitted to G.L. c. 183A through the execution and recording of the Declaration of Trust and Master Deed for the Cypress Street Condominium while it was still under one ownership. At the time, the premises were owned by the Sangiolos. Afterwards, title to the entire Premises remained under the ownership of the Sangiolos, although the nature of that ownership interest was altered. See Massachusetts Real Estate Bar Association, Title Standard 74, Comment 5 ("Upon recording of the master deed the owner's interest becomes an interest in units with their appurtenant rights in common areas.").

When the Sangiolos later conveyed out Units 129 and 131 to two different owners, there was no severing of the unity of title with respect to the Cypress Street Condominium land. An undivided 50% interest in that land was conveyed to each of the Unit owners, notwithstanding the designation of the areas surrounding the Condominium Buildings as "exclusive right" areas. [Note 12] Such exclusive right areas fall within the definition of "limited common areas and facilities" in the condominium statute. See G.L. c. 183A, § 1 (defining the term "Limited common areas and facilities" as "a portion of the common areas and facilities either (i) described in the master deed or (ii) granted or assigned in accordance with the provisions of this chapter by the governing body of the organization of unit owners for the exclusive use of one or more but fewer than all of the units."). The Master Deed designation of the exclusive right areas appurtenant to each of the Units, did not result in a division of the common areas and facilities into separate parcels; nor was the conveyance of the two Units into separate ownership a severance of the unity of title of the common areas and facilities, as argued by the Plaintiffs.

Thus, the rear most yard portion of the Unit 131 exclusive right area is not a separate parcel, landlocked or otherwise. As shown on the Site Plan, that yard is part of, and continuously connected with, the remainder of the Unit 131 exclusive right area, which is accessed from Cypress Street. Any difficulty the Vuzmans experience accessing the rear most yard of the Unit 131 exclusive right area, due to the physical attributes of the connecting strip, is not a controlling factor where the Common Areas and Facilities (including the two designated exclusive right areas) and their uses are governed by the Master Deed.

The Master Deed (and the Site Plan referenced therein) plainly evidence the intent of the Declarant as to which portion(s) of the Premises were to be used exclusively by the respective owners of Unit 129 and Unit 131. The language in Paragraph 4 of the Master Deed expressly provides that each Unit owner has the "exclusive rights … to use … the front, side and rear yards designated on the Plans as appurtenant to such Unit..." [emphasis added]. Nothing contained in the Master Deed or the Site Plan indicates that the Declarant intended the owner of Unit 131 to have any rights in the portion of the Premises dedicated to the exclusive use of the owner of Unit 129.

Notably, although the stairs were in existence at the time the Cypress Street Condominium was created, the Site Plan does not show those stairs; nor does the Site Plan show a path running through the Unit 129 exclusive right area. Further, the description of the Unit 129 exclusive right area contained in the Master Deed does not call out an exception, allowing use of the stairs or any other portion of the Unit 129 exclusive right area by the owners of Unit 131.

Where the entire land area of the Condominium Premises is held in common ownership by the Unit Owners, and where neither the Site Plan, nor the Master Deed make any provisions with regard to use by Unit 131 of any stairs and/or path across the Unit 129 exclusive right area, the intent of the original parties is overwhelmingly clear. Accordingly, the factual allegations in the First Amended Complaint, taken as true and evaluated in the light most favorable to Plaintiffs, suggest no viable legal basis for an implied easement claim.

CONCLUSION

For the reasons discussed, Defendants are entitled to judgment on the pleadings in their favor regarding all of Plaintiffs' claims. Upon final resolution of this case, Declaratory Judgment shall enter that, on the facts presented in the First Amended Complaint, the removal of stairs and the installation of a fence by Defendants' within the Unit 129 exclusive right area does not violate any rights of the Vuzmans under either Paragraph 4 or Paragraph 5(a) of the Master Deed; that, on the facts presented in the First Amended Complaint, there are no implied easements of necessity over any portion of the Unit 129 exclusive right area. Furthermore, upon final resolution of this case, a judgment of dismissal shall enter on all of Plaintiffs' remaining claims, for failure to state a claim upon which relief may be granted.

Because Defendants have two trespass counterclaims remaining in this case, a final judgment may not be entered at this time. Defendants are hereby ORDERED to report to this court within 14 days of the date of this Decision whether they wish to voluntarily dismiss their trespass counterclaims or proceed with such claims, and if so, how they intend to proceed (by trial, by dispositive motion, etc.) and whether any discovery remains outstanding.

exhibit 1