Drummer Boy Homes Association, Inc. v. Britton

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SJC-11969

DRUMMER BOY HOMES ASSOCIATION, INC. vs. CAROLYN P. BRITTON &
another.1

Middlesex. January 7, 2016. - March 29, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.

Condominiums, Common expenses. Real Property, Condominium.
Lien. Mortgage, Priority. Practice, Civil, Standing,
Attorney's fees.

Civil actions commenced in the Concord Division of the
District Court Department on August 8, 2007; February 6, 2008;
and October 6, 2008.

After consolidation, the case was heard by Peter J.
Kilmartin, J., on a motion for summary judgment, and a motion to
alter and amend the judgment was also heard by him.

After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.

Thomas O. Moriarty (Jennifer L. Barnett with him) for the
plaintiff.
Michael A.F. Johnson, of the District of Columbia (Rhiannon
A. Campbell with him), for Federal Housing Finance Agency &
others, amici curiae.
Randy A. Britton, pro se.

1
Randy A. Britton.
 2

The following submitted briefs for amici curiae:
Alan E. Lipkind & Elizabeth Brady Murillo for Avidia Bank &
others.
Henry A. Goodman, Ellen A. Shapiro, Charles A. Perkins,
Jr., Scott J. Eriksen, & David R. Chenelle for Community
Associations Institute.
Clive D. Martin & Diane R. Rubin for Real Estate Bar
Association for Massachusetts, Inc.
Stephen C. Reilly & Jennifer E. Greaney for Bank of
America, N.A.

SPINA, J. At issue in this case is whether G. L. c. 183A,

§ 6, permits an organization of unit owners to establish

multiple contemporaneous priority liens on a condominium unit by

filing successive legal actions to collect unpaid monthly common

expense assessments (common expenses).2 We conclude that the

statute allows for such liens. Accordingly, we reverse the

judgment of the Appellate Division of the District Court,3 which

reached a contrary conclusion.4

2
Common expenses are defined in G. L. c. 183A, § 1, as "the
expenses of administration, maintenance, repair or replacement
of the common areas and facilities, and expenses declared common
expenses by this chapter."
3
The Appellate Division of the District Court is
encompassed within the definition of a "lower court" from whose
decision an appeal may be taken to an appellate court. See
Mass. R. A. P. 1 (c), as amended, 454 Mass. 1601 (2009).
4
We acknowledge the amicus briefs submitted in support of
Drummer Boy Homes Association, Inc. (association), by Avidia
Bank, Brookline Bank, Mutual of Omaha Bank, North Shore Bank,
and Rockland Trust Company; Community Associations Institute;
and the Real Estate Bar Association for Massachusetts, Inc. We
also acknowledge the amicus briefs submitted in support of the
decision of the Appellate Division of the District Court by Bank
of America, N.A.; and the Federal Housing Finance Agency, the
 3

1. Background. Over the last ten years, the parties in

this case have been involved in protracted and contentious

litigation concerning parking rights at a condominium complex.

Our recitation of the factual background and procedural history

encompasses only those matters that relate to the specific

issues now before this court. Drummer Boy Condominium II, which

consists of twelve individual units, is one of nine condominiums

comprising Drummer Boy Green in Lexington. In the aggregate,

the nine condominiums have approximately 150 units. The

defendant, Carolyn P. Britton, purchased a unit in Drummer Boy

Condominium II in May, 2001. In April, 2008, she transferred

title to the unit by quitclaim deed to herself and her husband,

defendant Randy A. Britton, as tenants by the entirety.5

Around 2004, the Brittons began to withhold payment of

their monthly common expenses because of a dispute concerning

parking rules and related fines. On August 8, 2007, the Drummer

Boy Homes Association, Inc. (association),6 commenced an action

Federal National Mortgage Association, and the Federal Home Loan
Mortgage Corporation.
5
Because they share the same last name, we refer to the
Brittons individually by their first names.
6
The association originally filed suit as the "Board of
Directors of the Drummer Boy Homes Association, Inc." As will
be discussed infra, the Appellate Division of the District Court
corrected the name of the plaintiff to its present form.
 4

in the District Court against the Brittons.7 It sought to

recover unpaid common expenses and to enforce a priority lien

pursuant to G. L. c. 183A, § 6 (c), and G. L. c. 254, §§ 5, 5A,

that would be superior to the first mortgage to the extent of

the common expenses due during the six months immediately

preceding the commencement of the action.8 The Brittons

continued to withhold payment of their monthly common expenses.

On February 6, 2008, the association commenced a second action

to recover the unpaid common expenses that had accrued since the

filing of its first action, and to enforce a second six-month

priority lien. When the Brittons still did not pay their

monthly common expenses, the association commenced a third

action on October 6, 2008, to recover the unpaid common expenses

that had accrued since the filing of its second action, and to

7
The complaint named Carolyn as a defendant because she
held title to the unit at the time the suit was brought. Randy
was also named as a defendant and party in interest because he
was the holder of a second mortgage on the condominium unit.
After the association asserted that Randy, who has a juris
doctor degree but is not admitted to the bar, had engaged in the
unauthorized practice of law by filing a motion to dismiss the
complaint, Carolyn transferred ownership of the unit to herself
and Randy. The Brittons then proceeded together as pro se
defendants. Coldwell Banker Mortgage, the holder of the first
mortgage on the Brittons' unit, and Massachusetts Educational
Financing Authority, the holder of another mortgage on the unit,
were also named as defendants and parties in interest in the
complaint. Although each entered an appearance, neither has
participated in the litigation or filed an appeal.
8
The association voluntarily dismissed two earlier actions
against Carolyn for the nonpayment of common expenses after she
paid the amounts due.
 5

enforce a third six-month priority lien. The association

subsequently filed a motion to consolidate the three actions,

which was allowed.

On March 9, 2009, the association filed a motion for

summary judgment. Following a hearing, a judge allowed the

motion and entered judgment in favor of the association in the

amount of $22,742.08.9 The judge first determined that the

association was the proper entity to seek recovery of unpaid

common expenses pursuant to G. L. c. 183A, § 6. He then

concluded that there were no disputed issues of material fact

regarding the association's ability to recover unpaid common

expenses and related fines, as well as reasonable attorney's

fees and costs associated with the collection of such expenses.

The judge pointed out that, notwithstanding the Brittons'

arguments about the purported illegality of the parking policies

at Drummer Boy Green, they never initiated an action to resolve

their parking dispute, and they could not remedy the matter

simply by ignoring the fines and refusing to pay their common

9
The judge pointed out that, apart from the issues raised
in the association's original causes of action, the court
already had resolved all other matters presented in this
litigation, including the Brittons' request for injunctive
relief and their various motions, counterclaims, and third-party
actions. The judgment in favor of the association was comprised
of $9,887.22 in unpaid common expenses for the three six-month
periods that were the subject of the consolidated actions (which
included common expenses, fines, late fees, and costs), $12,314
in reasonable attorney's fees, and $540.86 in costs of
collection.
 6

expenses.10 The judge also concluded, however, that the filing

of successive actions was not consistent with G. L. c. 183A, § 6

(c), and that the association's lien priority over the first

mortgagee for common expenses, plus reasonable attorney's fees

and costs, was limited to the one six-month period preceding the

commencement of the first of the consolidated actions. That

being the case, the judge established a priority lien under § 6

(c) in the amount of $15,054.86.11 The judge denied the

association's subsequent motion to alter or amend the judgment

to reflect three successive six-month periods of lien priority.

Both parties appealed to the Appellate Division of the

District Court. By decision dated July 20, 2011, a panel of the

Appellate Division affirmed the judgment in all respects. After

reviewing the parties' extensive briefing, the panel determined

that only two issues had been properly raised: standing and

10
A unit owner may not challenge common expenses by
refusing to pay them, but, instead, should pay under protest and
then seek a judicial determination of the legality of the
assessment, as well as suitable reimbursement. See Trustees of
the Prince Condominium Trust v. Prosser, 412 Mass. 723, 726
(1992) ("A system that would tolerate a unit owner's refusal to
pay an assessment because the unit owner asserts a grievance,
even a seemingly meritorious one, would threaten the financial
integrity of the entire condominium operation"); Blood v.
Edgar's, Inc., 36 Mass. App. Ct. 402, 404-406 (1994).
11
The judge determined the amount of the priority lien by
adding together the unpaid common expenses for only the six
months immediately preceding the association's first action
against the Brittons ($2,200), plus reasonable attorney's fees
($12,314), and the costs of collection ($540.86).
 7

statutory interpretation. First, the panel considered the

Brittons' argument that the plaintiff was not a legal entity

entitled to sue and, therefore, the judgment was void. The

association conceded that it should have brought suit in the

name of "Drummer Boy Homes Association, Inc.," rather than

"Board of Directors of the Drummer Boy Homes Association, Inc."

The panel corrected the misnomer, concluding that the litigation

was brought by an existing legal entity with authority to sue,

and that the Brittons suffered no prejudice as a result of the

amendment.

Next, the panel considered the association's argument that,

pursuant to G. L. c. 183A, § 6 (c), it was entitled to lien

priority for three successive six-month periods. After

reviewing the language of the statute, together with its

underlying policy of balancing a condominium association's need

to enforce the collection of unpaid common expenses and a first

mortgagee's desire to protect the priority of its security

interest, the panel concluded that the association was entitled

to only one six-month period of lien priority. In the panel's

view, extending a condominium association's lien priority beyond

one six-month period of time would undermine the purpose of the

statutory scheme. The panel also stated that the association

was entitled to recover reasonable appellate attorney's fees and

costs.
 8

Both parties appealed to the Appeals Court, which affirmed

the judgment of the Appellate Division. Drummer Boy Homes

Ass'n, Inc. v. Britton, 86 Mass. App. Ct. 624 (2014). We then

granted the association's application for further appellate

review.

2. Standing. As an initial matter, the Brittons contend

that because the association is not the "organization of unit

owners" for Drummer Boy Condominium II, it does not have

standing to bring a cause of action pursuant to G. L. c. 183A

for the recovery of unpaid common expenses. As a consequence,

the Brittons continue, this court lacks subject matter

jurisdiction to consider the association's claims under the

statute, and, therefore, summary judgment should enter in their

favor. We disagree.12

A condominium is a creature of statute. See G. L. c. 183A;

Kaplan v. Boudreaux, 410 Mass. 435, 442 (1991). General Laws

c. 183A, § 6 (a) (i), states that "[t]he organization of unit

12
The Brittons properly raised only one issue before the
Appellate Division -- whether the judgment of the District Court
was void due to the misnomer of the plaintiff. To the extent
that the Brittons have raised other issues in the present
appeal, they are waived. We consider the matter of the proper
plaintiff because the issue of standing is one of subject matter
jurisdiction and can be raised at any time up until the final
judgment on appeal. See generally Indeck Maine Energy, LLC v.
Commissioner of Energy Resources, 454 Mass. 511, 516 (2009).
See also Reporters' Notes to Mass. R. Civ. P. 12 (h) (3), Mass.
Ann. Laws Court Rules, Rules of Civil Procedure, at 194
(LexisNexis 2015-2016).
 9

owners shall have a lien on a unit for any common expense

assessment levied against that unit from the time the assessment

becomes due." Pursuant to G. L. c. 183A, § 1, the "organization

of unit owners" is "the corporation, trust or association owned

by the unit owners and used by them to manage and regulate the

condominium."

On June 7, 1976, the trustees of Drummer Boy Trust

(trustees), together with their successors and assigns, executed

a Declaration of Covenants, Easements, and Restrictions

(declaration) to create Drummer Boy Green. In turn, the

declaration provided for the creation of the association as the

entity to which the trustees would delegate and assign "the

powers of maintaining and administering . . . common areas and

facilities and administering and enforcing the covenants and

restrictions and collecting and disbursing the assessments and

charges hereinafter created." The association was incorporated

under the laws of Massachusetts for the purpose of exercising

these functions.13 The declaration further states that "[e]very

13
The declaration states that its covenants, easements, and
restrictions "shall run with and bind the land and shall inure
to the benefit of and be enforceable by the [association] for a
term of 30 years . . . , after which time said covenants and
restrictions shall be automatically extended for successive
periods of ten (10) years unless an instrument signed by the
then Owners of two-thirds of the Living Units has been recorded,
agreeing to terminate or change said covenants and restrictions
in whole or in part." On November 9, 2005, fifty per cent or
more of the unit owners of Drummer Boy Green extended the
 10

person who or entity which is a record owner of a fee or

undivided fee interest in any Living Unit shall be a member of

the [association]." As set forth in the covenant for

maintenance assessments, if an assessment is not paid in a

timely manner, the association "may bring an action at law

against the [unit owner] personally obligated to pay the same or

to foreclose the lien against the Living Unit."

On September 30, 1976, the trustees executed a master deed,

submitting specified land, together with the buildings and

improvements erected thereon, and all easements, rights, and

appurtenances belonging thereto, to the provisions of G. L.

c. 183A, thereby creating Drummer Boy Condominium II. It was

subject to the terms of the declaration, and the covenants,

easements, and restrictions set forth therein were incorporated

by reference into the master deed. Section 8 of the master deed

states that "Drummer Boy Condominium II Association" is the

unincorporated association of unit owners that will manage and

regulate Drummer Boy Condominium II. Article I, Section 2, of

the bylaws adopted by Drummer Boy Condominium II Association

(bylaws) provides that such entity is the "organization of

[u]nit [o]wners" as defined in G. L. c. 183A. At the same time,

Article I, Section 3, of the bylaws provides that the

restrictions set forth in the declaration for a period of twenty
years, until June 7, 2026.
 11

association (that is, Drummer Boy Homes Association, Inc.) has

been organized under Massachusetts law for the purpose of

administering and enforcing the declaration, and that the

declaration vests in the association "certain responsibilities

for the maintenance of the Common Elements described in the

Master Deed." Moreover, Article VI, Section 1, of the bylaws

states that "[f]or the duration of the Declaration, the Common

Expenses shall be determined, assessed and collected by the

[association] as provided in the Declaration and its By-Laws, on

behalf of [Drummer Boy Condominium II] and all other Drummer Boy

Condominiums . . . ."

In essence, pursuant to the master deed and the bylaws,

Drummer Boy Condominium II Association delegated the exclusive

authority to assess and collect common expenses to the

association. That being the case, the association functions as

the "organization of unit owners" to recover unpaid common

expenses and to enforce a priority lien in accordance with G. L.

c. 183A, § 6. We conclude that the association had standing to

bring the present action.

3. Successive priority liens. The association contends

that because a unit owner's responsibility to pay monthly common

expenses is a recurring obligation, an organization of unit

owners can file successive legal actions under G. L. c. 183A,

§ 6, to establish and enforce multiple contemporaneous liens on
 12

a condominium unit, each with a six-month period of priority

over the first mortgage, for the recoupment of successive

periods of unpaid common expenses. We agree.

Our analysis of G. L. c. 183A, § 6, is guided by the

familiar principle that "a statute must be interpreted according

to the intent of the Legislature ascertained from all its words

construed by the ordinary and approved usage of the language,

considered in connection with the cause of its enactment, the

mischief or imperfection to be remedied and the main object to

be accomplished, to the end that the purpose of its framers may

be effectuated." Hanlon v. Rollins, 286 Mass. 444, 447 (1934).

See Sullivan v. Brookline, 435 Mass. 353, 360 (2001), and cases

cited. "Courts must ascertain the intent of a statute from all

its parts and from the subject matter to which it relates, and

must interpret the statute so as to render the legislation

effective, consonant with sound reason and common sense."

Twomey v. Middleborough, 468 Mass. 260, 268 (2014). "When

amending a statute or enacting a new one, the Legislature is

presumed to be aware of prior statutory language." Ropes & Gray

LLP v. Jalbert, 454 Mass. 407, 412-413 (2009).

An organization of unit owners is entitled to have a lien

on a condominium unit for unpaid common expenses from the time

such expenses become due. See G. L. c. 183A, § 6 (a) (i).

General Laws c. 183A, § 6 (c), first par., states, in relevant
 13

part, that "[w]hen any portion of the unit owner's share of the

common expenses has been delinquent for at least sixty days

. . . , the organization of unit owners shall send a notice

stating the amount of the delinquency to the unit owner . . .

[and] to the first mortgagee." Then, "thirty days prior to the

filing of an action by the organization of unit owners to

enforce its lien for delinquent common expenses, the

organization of unit owners shall send a notice stating its

intention to file said action to the first mortgagee."14 Id.

The evident purposes of such notices are to give the unit owner

an opportunity to remedy the delinquency so as to avoid an

enforcement action that may result in foreclosure, and to

apprise the first mortgagee of the status of the property so it

can take appropriate action, as necessary, to protect its

security interest.

Prior to 1992, a lien on a condominium unit for unpaid

common expenses was subordinate to the first mortgage of record.

See St. 1991, c. 554, § 1. As a consequence, the first

mortgagee had little incentive to initiate a foreclosure action

against the unit owner because its security interest was not in

14
A lien established under G. L. c. 183A, § 6, "shall be
enforced in the manner provided in [G. L. c. 254, §§ 5, 5A]."
G. L. c. 183A, § 6 (c), second par. In turn, G. L. c. 254, § 5,
states that such a lien "shall be enforced by a civil action
brought . . . in the district court in the judicial district
where [the] land lies."
 14

jeopardy. At the same time, during periods of falling real

estate values, when the mortgage on a condominium unit might

equal or exceed the fair market value of the unit, a foreclosure

action by the first mortgagee could result in insufficient funds

to satisfy a condominium association's lien. In 1992, the

Legislature recognized that "a serious public emergency" had

developed with respect to housing created pursuant to G. L.

c. 183A. St. 1992, c. 400, § 1. "This emergency ha[d] been

created by a policy of disinvestment by unit owners who [were]

no longer paying their lawfully assessed share of the common

expenses. Without the payment of these common expenses,

condominium buildings [were] falling into physical and financial

disrepair, causing neighborhood blight, and jeopardizing the

public health, safety, and welfare." Id. The Legislature's

response was to "take action to aid condominium associations" by

enacting numerous amendments to G. L. c. 183A. Id.

Significantly, the Legislature inserted the second

paragraph of G. L. c. 183A, § 6 (c), to establish the priority

of diverse liens that could be placed on a condominium unit.

See St. 1992, c. 400, § 9. It states, in relevant part, as

follows:

"[A] lien [under G. L. c. 183A, § 6, for unpaid common
expenses] is prior to all other liens and encumbrances on a
unit except (i) liens and encumbrances recorded before the
recordation of the master deed, (ii) a first mortgage on
the unit recorded before the date on which the assessment
 15

sought to be enforced became delinquent, and (iii) liens
for real estate taxes and other municipal assessments or
charges against the unit. This lien is also prior to the
mortgages described in clause (ii) above to the extent of
the common expense assessments based on the budget adopted
pursuant to [G. L. c. 183A, § 6 (a),] which would have
become due in the absence of acceleration during the six
months immediately preceding institution of an action to
enforce the lien and to the extent of any costs and
reasonable attorneys' fees incurred in the action to
enforce the lien . . ." (emphasis added).

G. L. c. 183A, § 6 (c), second par. The statute further

provides that "payment of the assessments with respect to such

six month period, and to the extent of any costs or reasonable

attorneys' fees incurred in said action, shall serve to

discharge such lien to the extent that such lien is prior to

such mortgages described in clause (ii) above." Id. Moreover,

"[t]he priority amount shall not include any amounts

attributable to special assessments, late charges, fines,

penalties, and interest assessed by the organization of unit

owners." Id. In essence, when a condominium association

initiates a lien enforcement action, it can obtain so-called

"super-priority" status over a first mortgagee for six months'

worth of common expenses. See id.

General Laws c. 183A, § 6 (c), second par., is silent with

respect to whether, in the face of ongoing nonpayment of common

expenses, an organization of unit owners can initiate subsequent

actions to establish priority liens beyond one six-month period.

Nonetheless, the insertion of the fourth and fifth paragraphs of
 16

G. L. c. 183A, § 6 (c), as discussed infra, suggests that the

Legislature anticipated that condominium associations might

initiate multiple lien actions. See St. 1998, c. 242, § 6.

Indeed, given the Legislature's recognition of the "serious

public emergency" caused by unit owners who fail to pay their

common expenses, it is reasonable to think that the Legislature

would view such payment delinquencies as an ongoing problem

necessitating more than the heretofore limited remedy of one

lien for six months' worth of common expenses. See Blood v.

Edgar's, Inc., 36 Mass. App. Ct. 402, 405 n.2 (1994)

(Legislature consistently has amended G. L. c. 183A "to

strengthen common expense collection"). The financial stability

of the condominium form of home ownership depends, in

significant part, on the timely receipt of common expenses by

the organization of unit owners. See Trustees of the Prince

Condominium Trust v. Prosser, 412 Mass. 723, 726 n.3 (1992)

("the collection of all common area charges is important to the

viability of any condominium enterprise").

In 1998, the Legislature inserted the fourth and fifth

paragraphs of G. L. c. 183A, § 6 (c), to establish the procedure

by which a first mortgagee could maintain its lien priority

notwithstanding the initiation of an enforcement action by an

organization of unit owners to recoup unpaid common expenses.
 17

See St. 1998, c. 242, § 6. General Laws c. 183A, § 6 (c),

fourth par., states, in relevant part, as follows:

"The organization of unit owners shall take no further
action to enforce its priority liens against a particular
unit for common expenses if the first mortgagee agrees in
writing that a priority lien exists without the requirement
of instituting an action, as to such enforcement and pays,
within [sixty] days of said writing, the following
prescribed amounts: (1) so much of any delinquent
assessments on that unit for regularly recurring budgeted
common expenses over a period for six months immediately
preceding the notice of delinquency that would constitute a
priority amount if an action had been commenced on the date
the organization gives its delinquency notice to the
mortgagee; (2) costs and reasonable attorney's fees
incurred by the organization at the time of said writing by
the first mortgagee to collect outstanding common expenses
. . . ; [and] (3) all future common expenses, and special
assessments other than special assessments for improvements
made pursuant to [G. L. c. 183A, § 18,] assessed against
that unit from the date of said notice until such time as
the mortgagee's mortgage is foreclosed or otherwise no
longer encumbers the unit. The amount which the first
mortgagee, if it so elects, would be required to pay to
cause the organization not to proceed to enforce its
priority liens shall not include any amounts attributable
to late charges, fines, penalties, and interest assessed by
the organization of unit owners . . ." (emphasis added).15

In addition, G. L. c. 183A, § 6 (c), fifth par., provides that,

when requested by the first mortgagee, "the organization of unit

owners shall provide a written statement in reasonable detail of

the actual dollar amounts the first mortgagee would be required

15
Based on the language of G. L. c. 183A, § 6 (c), fourth
par., the organization of unit owners will be unable to recover
all monies due and owing from a unit owner because a first
mortgagee who elects to pay prescribed amounts in order to
prevent a lien enforcement action is not required to pay certain
enumerated fees that have been imposed on the unit owner as a
consequence of the nonpayment of common expenses.
 18

to pay, if it so elected, to cause the organization of unit

owners not to take further action to enforce its priority liens

against the unit" (emphasis added). The fifth paragraph also

sets forth a timetable by which the first mortgagee and the

organization of unit owners shall enter into the written

agreement described in the fourth paragraph. See id.

By enabling a first mortgagee to assume responsibility for

a unit owner's unpaid common expenses, the Legislature has

balanced the interests of a condominium association with those

of a first mortgagee. On the one hand, the condominium

association is assured that it will receive six months' worth of

delinquent common expenses plus all future common expenses,

thereby allowing it to meet its ongoing financial obligations

without imposing an additional burden on unit owners who have

paid their common expenses in a timely manner.16 On the other

hand, the first mortgagee is assured that it will maintain its

lien priority, and that the condominium association will refrain

16
The amici on behalf of financial institutions that lend
money to condominium associations point out that these loans,
which are used to maintain and repair the common elements of a
condominium, are secured by a pledge of the condominium
association's income stream, namely, the common expenses paid by
the unit owners. According to these amici, the availability of
multiple contemporaneous priority liens for successive six-month
periods of time reduces the risk associated with such loans and
increases the willingness of financial institutions to make
them. The amici state that they currently have approximately
$229 million in outstanding loans to about 721 condominium
associations in Massachusetts.
 19

from taking further enforcement action. The first mortgagee

also can avoid the costs and reasonable attorney's fees that

otherwise would be incurred in the lien enforcement action, and

can preserve the value of its collateral through the continuous

payment of common expenses.17

Construing G. L. c. 183A, § 6 (c), as permitting an

organization of unit owners to establish a single priority lien

on a condominium unit for the recovery of only six months' worth

of unpaid common expenses would render the mechanism established

by the Legislature in the fourth and fifth paragraphs of the

statute inconsequential. It also would ignore the Legislature's

17
In concluding that successive lien enforcement actions
would undermine the equitable balance between the interests of a
condominium association and those of a first mortgagee, the
Appellate Division relied, in part, on § 3-116 of the Uniform
Condominium Act (UCA), 7 (Part II) U.L.A. 625 (Master ed. 2009).
The UCA was enacted for three primary purposes: "(1) to make
terminology and details of condominium statutes uniform so that
national lenders could more easily assess the appropriateness of
condominium documents and financing, (2) to make unit holders'
'bundle of rights' more uniform so that 'the increasingly mobile
consumer' could become more educated 'in this very complex
area,' and (3) to solve problems concerning 'termination of
condominiums, eminent domain, insurance, and the rights and
obligations of lenders upon foreclosure of a condominium
project,' which were 'not satisfactorily addressed by any
existing statute.'" Plano Parkway Office Condominiums v. Bever
Props., LLC, 246 S.W.3d 188, 193-194 (Tex. Ct. App. 2007),
quoting Prefatory Note to UCA, supra at 487. Massachusetts has
not adopted either the UCA or its successor, the Uniform Common
Interest Ownership Act, 7 (Part II) U.L.A. 1 (Master ed. 2009).
Moreover, neither includes any provisions akin to those set
forth in G. L. c. 183A, § 6 (c), fourth par., establishing a
mechanism for the balancing of interests beyond what was
afforded by the 1992 amendments to G. L. c. 183A, § 6.
 20

references to "priority liens" in both the fourth and fifth

paragraphs of § 6 (c) (emphasis added). There would be little

reason for a first mortgagee to assume responsibility for the

payment of a unit owner's future common expenses if the

condominium association were limited to one six-month period of

lien priority. In such circumstances, future common expenses

would always be subordinate to the first mortgage. The

procedure articulated in the fourth and fifth paragraphs of

G. L. c. 183A, § 6 (c), reflects an awareness by the Legislature

that the statute permits an organization of unit owners to

establish and enforce multiple contemporaneous priority liens on

a condominium unit. Our interpretation of G. L. c. 183A, § 6,

is consistent with the Legislature's long-standing interest in

improving the governance of condominiums and strengthening the

ability of organizations of unit owners to collect common

expenses, thereby avoiding a reemergence of the serious public

emergency that developed in the early 1990s. We are cognizant

of the concern that by allowing a condominium association to

establish multiple priority liens over an extended period of

time, those liens eventually could have priority over much of

the first mortgage. However, it is well within the control of a

first mortgagee to avert the establishment of such liens in the

first instance by paying statutorily prescribed amounts to the
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organization of unit owners in conformity with G. L. c. 183A,

§ 6 (c), fourth par.

4. Appellate attorney's fees. In its brief, the

association has requested appellate attorney's fees and costs

incurred as a consequence of its efforts to recover the common

expenses due and owing from the Brittons. General Laws c. 183A,

§ 6 (b), states that "[t]he unit owner shall be personally

liable for all sums assessed for his share of the common

expenses including late charges, fines, penalties, and interest

assessed by the organization of unit owners and all costs of

collection including attorneys' fees, costs, and charges." The

Appellate Division of the District Court awarded the association

$8,500 in appellate attorney's fees and costs, which was added

to the total judgment entered in its favor.

We now conclude that the association is statutorily

entitled to recover reasonable attorney's fees and costs

associated with the proceedings before this court and the

Appeals Court.18 See Yorke Mgt. v. Castro, 406 Mass. 17, 19

(1989). The association is directed to file with the clerk of

this court materials detailing and supporting its request for

18
With respect to a request for attorney's fees and costs
that the association may have incurred as a consequence of
filing its own appeal in the Appeals Court and opposing the
Brittons' cross appeal, the association may apply to that court
for such fees and costs. See Costa v. Fall River Hous. Auth.,
453 Mass. 614, 633 n.28 (2009); T & D Video, Inc. v. Revere, 450
Mass. 107, 117 (2007).
 22

such fees and costs within fourteen days of the issuance of the

rescript in this case. See Fabre v. Walton, 441 Mass. 9, 10

(2004). The Brittons will be afforded fourteen days to respond,

and the court will then enter an appropriate order. See id. at

10-11.

5. Conclusion. The association may file successive legal

actions against the Brittons under G. L. c. 183A, § 6, to

establish and enforce multiple contemporaneous liens on their

condominium unit, each with a six-month period of priority over

the first mortgage, for the recoupment of successive periods of

unpaid common expenses. Accordingly, the judgment of the

Appellate Division of the District Court is reversed.

So ordered.