GREGORY BARSTOW v. EAGLE TRACE PROPERTIES, LLC, KEVIN MARSH, ROBERT ALVERADO and the TRUSTEES OF THE 75 FULTON STREET CONDOMINIUM.

When this old world starts getting me down

And people are just too much for me to face (Up on the roof)

I climb way up to the top of the stairs

And all my cares just drift right into space (Up on the roof)

Carole King and Gerry Goffin, Up on the Roof (as sung by The Drifters, Save the Last Dance for Me (Atlantic Records 1962)).

In August 2005, plaintiff Gregory Barstow purchased Unit 62 in a residential condominium located at 75 Fulton Street in Boston, in the city's historic North End. Unit 62 is one of thirteen in the condominium, called (simply enough) the 75 Fulton Street Condominium. There are two units, Units 61 and 62, on the sixth (top) floor of 75 Fulton Street. Each top-floor unit extends from the front of 75 Fulton Street to the back. Fulton Street runs along the front (western side) of the building, while a street called Public Alley 101 borders the back (eastern side) of the building. The building appears to predate the Second World War, although it has been renovated since then.

Mr. Barstow inspected Unit 62 before buying it. He noticed water damage on parts of its ceiling. He asked the unit's sellers, Jon and Kelly Ledwick, about the damage. The Ledwicks replied that they needed to fix a leak in the roof. It appeared to Barstow that the leak hadn't damaged the unit's floors or walls, and so he assumed that the leak would be easy to fix. Rather than insist that the Ledwicks do the repairs, Barstow negotiated a discount in the unit's sales price and bought Unit 62 leaks and all.

The Ledwicks told Mr. Barstow something else about Unit 62 when he bought it: the Unit included not only the interior of Unit 62, but also the roof of the Condominium immediately above Unit 62. While the Condominium's master deed described the roof as comprised of "tar and gravel," by 2005 someone had installed a rubber membrane on the roof. And atop Unit 62's half of the roof was a roof deck.

Roof decks can be special places in downtown Boston, and Unit 62's deck is no exception. At the time of trial, one looking in several directions from that deck would take in, at a respectful distance, Boston's skyscrapers. To the west one would glimpse portions of the Boston Greenway and the Zakim Bridge. To the north one would spot the quaint and quirky buildings of the North End. And in virtually every direction there'd be sky, and lots of it; few buildings are close enough so as to cast shadows. The roof is thus more than a roof: it's prime real estate. Or as Up On the Roof says:

When I come home feeling tired and beat

I go up where the air is fresh and sweet (Up on the roof)

I get away from the hustling crowds

And all that rat race noise down in the street (Up on the roof)

On the roof's the only place I know

Where you just have to wish to make it so. . . .

Before buying Unit 62, Mr. Barstow did one further bit of diligence: he reviewed a document recorded at the Suffolk County Registry of Deeds, titled "Easement." The Easement purportedly governed the use of 75 Fulton Street's roof and its decks. The Easement described Unit 62's roof as having been divided in 1997 into two "Exclusive Easement Areas." (Or to further quote Up on the Roof, "At night, the stars put on a show for free/And, darling, you can share it all with me/I keep-a tellin' you/Right smack dab in the middle of town/I found a paradise that's trouble-proof (Up on the roof)/And if this world starts getting you down/There's room enough for two up on the roof.") The Easement described the half of the roof closest to Fulton Street as "The Unit 62 Roof Area," and the half closest to Public Alley 101 as the "Roof Area" of another Condominium unit, Unit 42. The recorded Easement included a plan that showed the two easement areas. The Easement said that Unit 42's owners had an exclusive easement in the "The Unit 42 Roof Area." The Easement described various obligations of the owners of Units 42 and 62, and stated that the purported grantors of the Easement were the Trustees of the 75 Fulton Street Condominium Trust (the "Trustees" and the "Trust," respectively). The Trust is the Condominium's statutory unit-owner organization. See G.L. c. 183A, § 10.

After buying Unit 62, Mr. Barstow began investigating the leak. He thought that it originated within The Unit 42 Roof Area, and he felt it was Unit 42's obligation under the Easement to repair the leak. He contacted Unit 42's then-owner, Margaret Koehl, and requested a fix. She contracted for repairs, but six months later an even worse leak appeared in Unit 62's ceiling. Barstow traced that leak to a loose rubber-membrane panel within The Unit 42 Roof Area. Barstow paid a roofer to mend the roof. Barstow also made repairs inside Unit 62. The repairs reduced, but didn't fix, the leak, which Barstow now contends is connected to a split seam in the roof's rubber membrane within The Unit 42 Roof Area.

Mr. Barstow contacted Ms. Koehl several times about repairing the roof and the interior of Unit 62, to no avail. He eventually hired an attorney; in April 2017, that attorney detected a mistake in the Easement. In May 2017, Barstow filed suit in this Court against the Trustees and Eagle Trace Properties, LLC, an entity controlled by Koehl that's the current owner of Unit 42. Barstow later amended his complaint to name as defendants the current tenants of Unit 42, Kevin Marsh and Robert Alverado. In Counts I and II of his amended complaint, Barstow seeks declarations that (a) the Easement is void, (b) it conveyed nothing to Unit 42, and hence (c) Unit 62 owns the entirety of the roof above Unit 62 free and clear of the purported easement. In Count III, Barstow claims that Eagle Trace's use of Unit 62's roof constitutes trespass, a trespass that has caused leaks and resulting damage to Unit 62's interior.

Eagle Trace and Messrs. Marsh and Alverado answered Mr. Barstow's amended complaint and moved for summary judgment in June 2017. Eagle Trace, Marsh and Alverado claimed that the Easement is valid on its face. Mr. Barstow cross-moved for summary judgment and argued that the Easement is void. In January 2018, this Court (Scheier, J.) ruled that, on the "narrowly drawn" question posed by the parties' cross-motions for summary judgment – "whether the Easement properly created a right appurtenant to the owners of Unit 42 to use the portion of the roof described in the Easement" – Barstow was right. The roof over Unit 62 always belonged to Unit 62, and never was part of the Condominium's "common area" (over which the Trustees had control). The Easement thus "failed to convey easement rights to the owner of Unit 42, as it was granted by the Trustees who did not have authority to grant easement rights over a portion of Unit 62. . . ."

In March 2018, all of the defendants (including the Trustees) moved to amend the 2017 answer. They asked to include affirmative defenses that would establish that Eagle Trace had an easement over The Unit 42 Roof Area by prescription. The Court (Scheier, J.) denied that motion in May 2018. The parties then appeared for a pretrial conference. The Court (Vhay, J.) set four issues for trial: (1) whether Ms. Koehl granted in 1997 to the owner of Unit 42 an easement in The Unit 42 Roof Area; (2) whether Mr. Barstow should be estopped from denying the existence of an easement appurtenant to Unit 42 in The Unit 42 Roof Area; (3) whether the doctrine of laches bars Barstow's request for an injunction preventing Unit 42 from using the roof; and (4) whether defendants are liable to Barstow for (a) damages relating to the unpermitted occupation of the roof and (b) damages to the interior of Unit 62 resulting from leaks.

The parties appeared for trial on October 25, 2018. The Court began the trial with a view of the exterior and the roof of 75 Fulton Street, plus the interior of Unit 62. Based on that view, the evidence admitted at trial, and the briefs and other arguments of counsel, the Court finds the facts recited earlier in this decision as well as the following:

1. A Master Deed dated August 17, 1978 and recorded with the Suffolk County Registry of Deeds (the "Registry") in Book 9086, Page 480 established the 75 Fulton Street Condominium.

2. The Trustees of the 75 Fulton Street Condominium are the duly elected organization of unit owners for the Condominium, pursuant to a Declaration of Trust dated August 8, 1978 and recorded at the Registry in Book 9086, Page 489.

3. Paragraph 5 of the Master Deed, titled "Boundaries of the Units," provides:

The floor, ceiling, wall and other outer boundaries enclosing the perimeter of each of the Units are as follows:

. . .

(b) Ceilings: The exposed lower surface of the unfinished ceiling and beams, as the case may be, except that with respect to Unit No. 61 and 62, the entire portion of the roof above such Unit (except for structural beams and any portion of the roof located over Common Areas and Facilities) shall be a part thereof; provided that the portion of the roof which is part of Unit 61 shall be subject to an easement over the portion thereof shown as shaded on Exhibit C hereto hereby created in favor of all Unit Owners for the sole purpose of emergency egress from the Building.

. . .

(e) As to Unit Nos. 61 and 62, any structures which may be constructed pursuant to paragraph 8 hereof shall be a part thereof.

4. Paragraph 7(d) of the Master Deed describes the Common Areas and Facilities of the Condominium as including, "except as set forth in paragraph 5(b), the roof of the Building."

5. Paragraph 8 of the Master Deed provides:

Structures. The Unit Owners of Unit Nos. 61 and 62 shall each have the right, if permitted under applicable governmental laws, rules and regulations, from time to time to construct additions to their Unit or other structures on the portion of the roof which is part of their Unit (including the right to remove any part of such portion of the roof provided that a new roof is installed on the structure constructed) provided that, in the case of Unit 62, such construction shall be limited to a roof deck. Any such construction shall be deemed to be a structural improvement and shall be performed in accordance with all applicable governmental laws, rules and regulations and the applicable provisions of the [75 Fulton Street] Condominium Trust. As constructed, the entire structure shall become a part of Unit No. 61 or 62, as the case may be.

6. The Master Deed twice mentions the granting of easements in Condominium Units, in paragraph 5(b) (set forth above) and in paragraph 9 (establishing a "valid easement" for certain encroachments of Common Area and Facilities upon Units, and vice versa). The Master Deed contains no provisions that address a Unit Owner's right to grant an easement over portions of that owner's Unit.

7. In October 1978, Hans H. and Margaret Koehl, who were husband and wife, bought as tenants by the entirety Unit 42 in the Condominium. They paid $43,200 for a 945-square-foot unit, plus a 7.4% undivided interest in the Condominium's common areas and facilities. In March 1981, Koehl became the sole owner of Unit 42. From October 1978 to December 1983, the period during which Koehl owned only Unit 42 in the Condominium, she didn't have the use of the building's roof or its roof decks.

8. In December 1983, while Ms. Koehl was still the sole owner of Unit 42, she and John and Harriet Olaski purchased as joint tenants Unit 62 in the Condominium, including its roof and related facilities, for $120,000. The interior of Unit 62 was the same size as that of Unit 42, 945 square feet. In September 1993, Koehl became the sole owner of Unit 62.

9. By 1995 or 1996, Ms. Koehl determined that Unit 62's roof area was big enough that she could use half of it for Unit 62 and the other half for Unit 42.

10. In 1995 or 1996, two Boston attorneys, Eric Lund and Russell Dunning, were renting Unit 42 from Ms. Koehl. Koehl asked attorney Lund if he could refer her to an attorney who could help her divide Unit 62's roof into two areas, one for the use of Unit 42 and the other for the use of Unit 62. Koehl sought legal help because she has no legal training.

11. Attorney Lund told Ms. Koehl that his law firm, Posternak, Blankstein & Lund, L.L.P., could handle the project. Koehl engaged the Posternak firm for that work. Koehl regarded attorney Dunning as her personal lawyer in the transaction. The firm billed Koehl for all of the firm's work, which the firm began in March 1996, and Koehl paid all of the firm's invoices for that work. The Condominium Trust did not reimburse Koehl for her payments to the Posternak firm.

12. In May 1996, a registered professional engineer, Kenneth Millet Stewart, prepared a plan (the "Stewart Plan") that depicted the roof of the Condominium. The plan also showed Unit 62's half of the roof as further divided into two exclusive-easement areas, "Exclusive Easement Area Unit 42" and "Exclusive Easement Area Unit 62."

13. In early 1997, the Posternak firm delivered to Ms. Koehl the Easement, a document later recorded at the Registry (on February 11, 1997) in Book 21196, Page 194. The Easement included the Stewart Plan. At the time she received the Easement, Koehl was still the sole owner of Units 42 and 62. She also was a trustee of the 75 Fulton Street Condominium Trust.

14. The Posternak firm advised Ms. Koehl to sign the Easement (or, as Koehl testified at trial, "I signed what the lawyer gave me to sign."). She did so above a signature blank that designated her as a "Trustee." The Easement's acknowledgement page, notarized by attorney Dunning, stated that Ms. Koehl, "Trustee as aforesaid . . . acknowledged the foregoing instrument to be . . . her free act and deed, as said Trustee . . . ." Two other Condominium Trustees also signed the Easement.

15. In the Easement, the Trustees purported to

(1) terminate and revoke the special rights and exclusive easements granted to the Unit Owners of Unit 62 by Paragraph 7.1 [sic] of the Master Deed over such portion of the Roof Deck Common Area as is shown on the [Stewart Plan] as "Exclusive Easement Area Unit 42" (such area being hereinafter referred to as "The Unit 42 Roof Area") and (ii) [sic] for consideration of One Dollar ($1.00) grant to the Unit Owners of Unit 42 the same special rights and exclusive easements described in Paragraph 7.1 [sic] of the Master Deed over The Unit 42 Roof Area, provided, however, that the Unit Owners of Unit 62 shall have (and are hereby granted) the right to pass and repass over The Unit 42 Roof Area for purposes of ingress and egress to the portion of the Roof Deck Limited Common Area shown on [the Stewart Plan] as "Exclusive Easement Area Unit 62" (such area being hereinafter referred to as "The Unit 62 Roof Area") and for purposes of using, in common with the Unit Owners of Unit 42, the existing water faucet now located in The Unit 42 Roof Area, as the said water faucet may be relocated from time to time.

It is the intention of the undersigned Trustees that the rights herein granted to the Unit Owners of Unit 42 with respect to The Unit 42 Roof Area shall be identical to the rights previously granted to the Unit Owners of Unit 62 (subject to the rights of the Unit Owners of Unit 62 to pass and repass over such area for the purposes hereinabove described) and that the Unit Owners of Unit 62 shall continue to enjoy all of the special rights and exclusive easements previously granted to such Unit Owners by Paragraph 7.1 [sic] of the Master Deed over The Unite 62 Roof Area.

16. The Master Deed contains no "Paragraph 7.1" or any other provision granting "special rights and exclusive easements" to the Unit Owners of Unit 62. Instead, the Master Deed declares that the roof above Unit 62 is part of Unit 62.

17. The relevant portions of the Easement continue:

The within grants to the Unit Owners of Unit 42 and the Unit Owners of Unit 62 are subject, however, to the following:

(a) the Unit Owners of Unit 42 shall be responsible for and shall pay for any and all improvements constructed on The Unit 42 Roof Area, all repairs and maintenance related to such improvements (regardless of the cause of the need for such repairs and maintenance) and all repairs and maintenance related to The Unit 42 Roof Area which are directly attributable to the construction or repair and maintenance of any such improvements and/or the negligence or intentional misconduct of the Unit Owners of Unit 42, their agents, guests, employees or invitees.

(b) the Unit Owners of Unit 62 shall be responsible for and shall pay for any and all improvements constructed on The Unit 62 Roof Area, all repairs and maintenance related to such improvements (regardless of the cause of the need for such repairs and maintenance) and all repairs and maintenance related to The Unit 62 Roof Area which are directly attributable to the construction or repair and maintenance of any such improvements and/or the negligence or intentional misconduct of the Unit Owners of Unit 62, their agents, guests, employees or invitees.

(c) the Unit Owners of Units 42 and 62 shall be jointly and severally responsible for all repairs and maintenance to the portions of the roof included in The Unit 42 Roof Area and in The Unit 62 Roof Area except as provided for in (a) and (b) above or except as otherwise provided for in the Master Deed or the [Condominium's Declaration of] Trust.

18. On the same day she signed the Easement in her capacity as a Condominium Trustee, Ms. Koehl signed a second document before attorney Dunning, a document titled "Consent of Unit Owners." The Consent was recorded with the Easement. Koehl signed the Consent twice, once in her capacity as "the Owner of Unit 42" and once in her capacity as "the Owner of Unit 62." In the Consent, Ms. Koehl stated her "consent to the above termination and revocation of special rights and exclusive easements affecting the Unit Owners of Unit 62 and to the above grants to the Unit Owners of Units 62 and Unit 42."

19. After the Easement was signed, the owners and tenants of Unit 42 used The Unit 42 Roof Area, and the owners of Unit 62 used The Unit 62 Roof Area. The Unit 42 Roof Area added to Unit 42 a highly valuable amenity that Unit 42 didn't enjoy prior to execution of the Easement, except by permission of Ms. Koehl.

20. Six months after signing the Easement, while she still was the sole owner of Unit 42, Ms. Koehl conveyed Unit 62 to Matthew J. Leary for $250,000. Koehl's deed to Leary states that the conveyance is "[s]ubject to and with the benefit of all easements, restrictions, reservations, and agreements set forth in [the] Master Deed, the unit deed recorded [at the Registry] in Book 9147, Page 586, and in the Easement dated January 8, 1997 and recorded in Book 17085, Page 080." (The latter easement is not the Easement at issue in this case.)

21. On August 8, 2005, Mr. Barstow became the owner of Unit 62. His deed states that his interest in Unit 62 is "[s]ubject to and with the benefit of all easements, restrictions, reservations, and agreements set forth in [the] Master Deed, the unit deed recorded [at the Registry] in Book 9147, Page 586, and in the Easement dated January 8, 1977 [sic], and recorded in Book 17085, Page 080."

22. On August 31, 2006, Mr. Barstow asked Ms. Koehl, who was still the owner of Unit 42, to repair Unit 62's leaking roof. Barstow made the request by e-mail. The e-mail states in part:

Attached are pictures of the damage done to my condo as a result of the roof leak on your easement [area]. The easement from 1997 clearly states that:

(a) the Unit Owners of Unit 42 shall be responsible for and shall pay for any and all improvements constructed on the Unit 42 Roof Area, all repairs and maintenance related to such improvements (regardless of the cause of the need for such repairs and maintenance) and all repairs and maintenance related to The Unit 42 Roof Area which are directly attributable to the construction or repair and maintenance of any such improvements and/or the negligence or intentional misconduct of the Unit Owners of Unit 42, their agents, guests, employees or invitees.

The leak has been caused by the roof deck. The deck was never properly supported and has actually damaged the roof slats between joists . . .

. . .

If you would prefer to revoke the easement, I might consider absolving you of the repair responsibility. . . .

23. After receiving Mr. Barstow's e-mail, Ms. Koehl paid for repairs to The Unit 42 Roof Area. The repairs occurred in 2006 and 2007.

24. The work performed by Ms. Koehl's contractors stopped the leaks (or masked their effects) only for approximately six months. Since that time, membranes and seams within The Unit 42 Roof Area have split and caused leaks within Unit 62. Those leaks have damaged the ceilings, walls and floors in the interior of Unit 62. The estimated cost of repairing the known leaks in the roof and the damage to the interior of Unit 62 is $52,425.13.

25. There are several structural elements within The Unit 42 Roof Area. Those elements form a roof deck and raised flower beds. Footings supporting those elements rest directly on the roof's rubber membrane. The footings stress the membrane and contribute to pooling of water and tears in the membrane.

26. On March 10, 2016, Ms. Koehl conveyed to defendant Eagle Trace her interest in Unit 42.

*.*.*

Defendants contend that, either as a result of the actions that culminated in the execution of the Easement or as a result of the parties' conduct after Mr. Barstow purchased Unit 62, Unit 42 has an appurtenant easement over The Unit 42 Roof Area. A party asserting easement rights has the burden of proving that an easement exists. See Goldstein v. Beal, 317 Mass. 750 , 757 (1940).

The Court will address Defendants' "conduct of the parties" argument first. They argue that (a) Mr. Barstow knew of the Easement prior to purchasing Unit 62; (b) Barstow invoked the Easement in 2006, when he demanded that Ms. Koehl pay for repairs; and (c) Koehl paid for repairs in reliance on Barstow's apparent agreement to be bound by the Easement. Defendants claim these facts estop Barstow from denying the existence of Unit 42's easement over The Unit 42 Roof Area.

Defendants' estoppel theory fails for two reasons. It first is factually flawed: Defendants offered no proof that Ms. Koehl paid for roof repairs because she was counting on Barstow to be bound by the Easement. Koehl testified instead that she paid for repairs (for which she could have been liable for reasons having nothing to do with the Easement) "just because I didn't want to deal with [Barstow]."

Second, even if Ms. Koehl had paid for repairs in reliance on Mr. Barstow's willingness to be bound by the Easement, under Massachusetts law, that won't support a holding that Defendants now have an easement in The Unit 42 Roof Area by estoppel. General estoppel principles "do not apply to the creation of easements." Blue View Construction, Inc. v. Town of Franklin, 70 Mass. App. Ct. 345 , 355 (2007). Under Massachusetts law, an easement by estoppel may arise in only two circumstances: first, "when a grantor conveys land bounded by a street or way," in which case the grantor, "and those claiming under him, are estopped to deny the existence of the street or way, and his grantee acquires rights in the entire length of the street or way as then laid out or clearly prescribed"; and second, "when a grantor conveys land situated on a street in accordance with a recorded plan that shows the street," in which case "the grantor, and those claiming under him, are estopped to deny the existence of the street for the distance as shown on the plan." Id. (citations omitted). Neither situation is present here. The Court thus DENIES Defendants' request that the Court declare Barstow to be estopped from challenging Defendants' easement rights.

That leaves Defendants' other easement theory: that the circumstances surrounding the execution of the Easement indicate that Ms. Koehl granted an easement to Unit 42 over The Unit 42 Roof Area. Mr. Barstow contends that two things prevent the Court from reaching that easement theory. Barstow first submits that Judge Scheier decided that issue against Defendants in her January 2018 ruling on the parties' motions for summary judgment. The Court disagrees. While there is language in the January 2018 ruling that could give one the impression that the Court had resolved all issues concerning Unit 42's easement rights, a careful reading of the ruling (a ruling that was based on motions that were, in the ruling's words, "narrowly drawn") reveals that it isn't all-encompassing. The ruling's central holding is this: that the Easement, by itself, "was insufficient to convey rights to the owner of Unit 42 and her successors and assigns" because the Trustees, the named "grantor of the Easement, did not have the right to grant such rights. . . ." The Trustees lacked that right because, at the time they executed the Easement, "the roof area in question was part of Unit 62 . . . and not part [of the] common area." The Court further held that, "as a conveyancing matter," the Consent of Unit Owners that Koehl signed in conjunction with the Easement "did not cure the defect in the grant of the Easement by the Trust."

The January 2018 ruling thoroughly examines why the Trustees could not (and therefore, did not) grant the owner of Unit 42 an easement over The Unit 42 Roof Area, despite what the Easement purports. The ruling doesn't consider, however, whether Ms. Koehl granted or otherwise made appurtenant to Unit 42 an easement. The ruling's focus on the Trustees is understandable: Defendants didn't argue on summary judgment that Koehl had granted an easement. They attempted instead to prove that the Trustees had done that. Mr. Barstow's counterarguments on summary judgment were similarly focused and narrow. The conclusion of his brief in support of his cross-motion for summary judgment says it best (italics added): "WHEREFORE, as the Condominium Trust did not own Unit 62 and the roof above the Condominium was part of Unit 62 and not Common Area at the time of granting of the Easement, the Condominium Trust did not have authority or ability to grant the Easement and the Easement is void." Perhaps most tellingly, no one presented on summary judgment any testimony from Koehl herself. The Court thus does not read the January 2018 ruling as resolving the question of whether Koehl granted an easement to Unit 42.

Mr. Barstow next argues that Judge Scheier barred Defendants from making their current easement argument in May 2018, when she refused Defendants leave to amend their answer and counterclaims. Barstow's argument fails for two reasons. First, Defendants didn't need to amend their Answer in order to contend that Ms. Koehl had granted an easement to Unit 42. That's because in ¶ 10 of his Amended Verified Complaint, Barstow made this broad allegation: "At no time did Koehl or any subsequent owner of Unit 62 grant an easement or convey any portion of Unit 62 to Unit 42." In their Answer, Defendants denied that contention. That denial put Barstow on notice, as a matter of the pleadings, that the issue of Koehl's grant or conveyance of an easement to Unit 42 was in play.

Second, when he opposed Defendants' motion to amend their Answer, Mr. Barstow didn't ask Judge Scheier to preclude Defendants from arguing that Ms. Koehl had granted an easement to Unit 42. Barstow argued instead that Defendants should be precluded from further contending that the "Easement" was valid, or that they had acquired easement rights by prescription. Judge Scheier's May 2018 ruling seems to suggest that it was too late for Defendants to claim that the Easement was valid, but nowhere does the ruling state that Defendants couldn't argue that Koehl had granted Unit 42 an easement by other means. In any event, this Court's Order in Advance of Trial alerted the parties three months before trial that the first issue to be tried was this: "Whether Margaret Koehl granted in 1997 to the owner of Unit 42 . . . an easement for use of half of Unit 62's roof?" Barstow hasn't identified any prejudice he has suffered on account of having to litigate Defendants' second easement theory, nor has he ever asked for leave to conduct additional discovery on that theory.

The Court thus turns to the merits of Defendants' second easement theory. Each unit in a condominium, "together with its undivided interest in the common areas and facilities . . . shall constitute real estate, and may be the subject of demise, devise, gift, mortgage, ownership, possession, sale, trust, the laws of descent and distribution and all other rights incidental to the holding of real estate as if it were sole and entirely independent of the other units in the condominium of which it forms a part." G.L. c. 183A, § 3. This language permits unit owners to grant easements over and within their units, subject to the terms of the condominium's master deed and other governing documents. The Master Deed of the 75 Fulton Street Condominium contains no restrictions on a Unit Owner's rights to grant an easement. Thus, Ms. Koehl had the right, while she owned Unit 62, to grant an easement in the whole or any part of Unit 62, including Unit 62's roof.

Did she? The answer to that question, like the answer to many other questions that come before this Court, depends on intent. That's the case whether one views this dispute as one involving a (facially defective) easement by express grant or one involving an implied easement. See Patterson v. Paul, 448 Mass. 658 , 665 (2007) (the meaning of an express easement created by deed is "derived from the presumed intent of the grantor"); Dale v. Bedal, 305 Mass. 102 , 103 (1940) (implied easements find "[t]heir origin . . . in a presumed intention of the parties"). The evidence at trial demonstrates that, from the moment Ms. Koehl asked attorney Lund to recommend a conveyancer to help her divide Unit 62's roof, through the time of trial, Koehl intended to allow Unit 42 to use half of Unit 62's roof, regardless of whether she or the Trustees controlled that roof. So Koehl's intention to grant an easement is clear.

When did Unit 42's easement come into being? Strictly speaking, it wasn't when Ms. Koehl signed the Easement. That's because, as of that moment, she owned both Unit 42 and Unit 62 in her own name. A landowner "cannot have an easement in its own estate in fee." York Realty, Inc. v. Williams, 315 Mass. 287 , 289 (1943). While the cases that discuss this doctrine do so in the context of whether an easement lapses on account of "merger" (the situation that arises when the owner of an easement's dominant estate later becomes the owner of the servient estate, or vice versa), the principles discussed in the merger cases apply equally to the situation one encounters when one tries to grant oneself easement rights: there's no need for it, "as the owner already has 'the full and unlimited right and power to make any and every possible use of the land.'" Busalacchi v. McCabe, 71 Mass. App. Ct. 493 , 498 (2008), quoting Ritger v. Parker, 62 Mass. (8 Cush.) 145, 147 (1851).

The Court won't dwell long on the question of timing. That's because shortly after Ms. Koehl signed the Easement, she ceased her contemporaneous ownership of Units 42 and 62, selling the latter unit in August 1997 to Mr. Leary. The seller of a property may reserve an easement in the land she sells. See Busalacchi, 71 Mass. App. Ct. at 496. A reservation of an easement also can be implied, when it is reasonably necessary for the enjoyment of the land the grantor retains. See Cheever v. Graves, 32 Mass. App. Ct. 601 , 608-609 (1992).

Ms. Koehl can be seen as having reserved an easement to Unit 42 both explicitly and implicitly. Her August 1997 deed to Mr. Leary doesn't mention such a reservation, but the evidence at trial explains the oversight: Koehl thought by the time she deeded Unit 62 to Leary that she had already granted an easement to Unit 42. After all, that's why she had hired attorneys to draft the Easement, had numerous persons (including herself, as owner of both Units) sign it, and had put the Easement on record. Had Koehl petitioned for reformation of her 1997 deed to Leary so as to include in it an express reservation of an easement to Unit 42 over The Unit 42 Roof Area, on the facts found after trial, she'd be entitled to relief. Under Massachusetts law, a party is entitled to reformation of a deed "on grounds such as fraud, mistake, accident or illegality." Beaton v. Land Court, 367 Mass. 385 , 392 (1975). "Reformation is available to parties where there has been a mutual mistake which is material to the instrument and where no rights of third parties are affected." Beach Associates, Inc. v. Fauser, 9 Mass. App. Ct. 386 , 394- 395 (1980). The evidence shows a series of mutual mistakes, beginning with the drafting of the Easement and ending with the failure to reserve Unit 42's easement expressly in the 1997 deed to Leary. There's also no prejudice to third parties by reforming the 1997 deed. Mr. Barstow testified that he believed at the time he bought Unit 62 (as did the Ledwicks) that Unit 62's roof was subject to an easement appurtenant to Unit 42. In both respects, this case is similar to Board of Managers of Sea Pines Condominium Assoc. v. Mostyn, 16 LCR 48 (2008) (Lombardi, J.), where the court held after reviewing the history of various conveyances that a 1970 deed should have reserved beach-easement rights to a parcel retained by the grantors.

Defendants also prevail on a theory of implied easement. An implied easement "must be found in a presumed intention of the parties, to be gathered from the language of the instruments when read in the light of the circumstances attending their execution, the physical condition of the premises, and the knowledge which the parties had or with which they are chargeable." Dale, 305 Mass. at 103. This Court holds that Unit 42 enjoys an implied easement over The Unit 42 Roof Area, based on (a) the overwhelming evidence of Koehl's intent to split the use of the roof above Unit 62; (b) her good-faith reliance on counsel to memorialize her intent; (c) a recorded document, the Easement, that describes easement; (d) the unique value that The Unit 42 Roof Area brings to the enjoyment of Unit 42; (e) the fact that severance of the titles of Units 42 and 62, both owned by Koehl, didn't occur until after Koehl executed and recorded the Easement; and (f) the lack of any challenge to Unit 42's use of The Unit 42 Roof Area until May 2017.

The Court thus DENIES Mr. Barstow's request for a declaration that Unit 42 has no easement rights (it does), and DENIES Barstow's request for an order enjoining Unit 42 from using any part of the roof (it may). In light of these rulings, the Court does not need to address Defendants' laches defense.

That leaves Mr. Barstow's damages claims. Barstow proceeded at trial under only one damages theory, that of trespass. A defendant's exercise of his or her easement rights does not constitute trespass on real property, see Anderson v. Healy, 36 Mass. App. Ct. 131 , 134-135 (1994), and thus Barstow can't recover from Eagle Trace or its tenants via a claim for trespass. But it's possible that, in the course of trying Barstow's trespass claim, the parties have essentially tried all of the issues pertaining to the leaks originating from The Unit 42 Roof Area and the damage wrought on Unit 62, without having identified the pertinent theory of recovery. Rule 15(b), Mass. R. Civ. P., allows parties to try issues not raised in the parties' pleadings, and directs the courts to allow amendments to the pleadings (even after trial) in order to conform them to the evidence admitted at trial. The key consideration in allowing such amendments is whether a party will suffer undue prejudice as a result. See Hamed v. Fadili, 408 Mass. 100 , 105-106 (1990).

Because it's possible that the parties have presented all of the evidence pertaining to Eagle Trace's liability for the damage to Unit 62 from leaks, the Court ORDERS Mr. Barstow, should he contend that the parties have tried by consent all "leak" liability and damages issues, to move by March 1, 2019 under Rule 15(b) for amendment of his Amended Verified Complaint. The motion must set forth Barstow's proposed additional claims and his arguments as to why amendment will not prejudice those Defendants named in the proposed claims. The Court will set a deadline for Defendants to oppose Barstow's motion if and when he files the motion. In the absence of a motion under Rule 15(b), the Court intends to enter judgment in favor of Defendants, and against Barstow, on Count III of his Amended Verified Complaint.

SO ORDERED.