Sano v. Tedesco

Trainor, J.

(concurring in part and dissenting in part). I agree with the majority that the motion judge was correct in concluding that the balconies are a part of their adjacent units and not a common area. I would also observe, as did the judge, that the master deed specifically includes “balconies as part of the description of units through Exhibit A.” Exhibit A is incorporated into the master deed. The units are described in exhibit A by unit number, location by building floor, square footage (including the balcony, where applicable), and the number of rooms, including the balcony for those units with an adjacent balcony.

The idea of an individual balcony which is exclusively part of the unit adjacent to it is a fiction created by the master deed, simply by drawing a line in the middle of the structure dividing it into two equal parts. Each balcony, in reality, is one structure shared by two units. I accept this fiction (and the majority acknowledges it), as we should in deference to the master deed. This fiction, however, implicates the relationship of the support beams to the balconies, as they are defined in the master deed. These support beams are part of the balconies themselves, each serving no other structural purpose but to support its balcony, and are therefore not “common.” The judge concluded that such beams are the exclusive responsibility of the adjacent unit owners. I believe the motion judge was correct and therefore respectfully dissent from that part of the majority opinion.

While the majority’s grammatical analysis of the master deed is interesting and even correct, it has little relevance to the question we are considering. Generally, common areas include the land described in the master deed and all other items listed as such in G. L. c. 183A and located on the property. Generally also, common areas will include all the structural elements of a building containing more than one unit.1

The master deed here provides a traditional definition of common areas that includes the building’s structural components *200and facilities that serve more than one unit.2 “Structural” is defined in Webster’s Third New International Dictionary 2266 (1993) as “of or relating to the load-bearing members or scheme of a building as opposed to the screening or ornamental elements . . . [e.g.,] floor joists, rafters, wall and partition studs, supporting columns . . . foundations.” This is why the individual unit boundaries are defined as the plane of the upper surface of the floor joists, for floors; the plane of the lower surface of the ceiling joists,3 for ceilings; and the plane of the interior surface of the wall studs, for walls. The wall studs and floor/ceiling joists are all interconnected weight-bearing structural components. The individual unit side of the boundaries is demarcated by the ornamental covering attached to the wall studs and floor/ceiling joists. This is why, for example, it was not necessary for the drafters of the master deed to define the boundaries of the balconies. Each balcony is entirely part of the individual unit, and it is neither within nor does it encapsulate any structural element. The balcony is entirely a part of the individual unit.

The judge was correct in not accepting the Sanos’ concession that eight feet of the twelve-foot balcony support beams are common. Contrary to the majority conclusion, the balcony support beams are not a structural component of the building. *201Structural components support not only individual units, but also simultaneously support the entire building. This is the nature of modem construction technique.4 The balcony support beams are not a structural component of the building, as they support only the balcony itself and have nothing to do with the structural integrity of the building.5 Removal of the balcony support beams would have no effect on the structural integrity of the building, whereas removal of wall studs or ceiling/floor joists would adversely affect the structural integrity of the building.

The majority makes much of the fact that because a portion of each support beam is located within the common area between the floor and ceiling, the beam itself is common. This analysis elevates form, or location, over substance. The master deed itself anticipates and makes provision for this situation. Clause (c) of the definition of “[cjommon areas and facilities” includes “[a]ll conduits, plumbing, wiring, flues and other facilities which are contained within any unit but serve part of the condominium other than the unit within [which] such facilities are contained” (emphasis added). This definition directly correlates with clause (b) in defining building structural components. Most plumbing, wiring, and conduits serve multiple units and are interconnected to the entire building. These components are common because they serve the entire building, or at a minimum more than one unit. They are not common because of their location, and they are not common if they serve only one unit regardless of where they are located.6 This is precisely why the fiction of individual balconies must be extended and applied to *202the beams which support them. To do otherwise would be illogical and inconsistent with the previous analysis.7

Just as any “facility” that serves only one unit is not a common area, the balcony support beams benefit only the unit whose balcony they support. They are not a structural component of the building and are therefore not common. The analysis of the motion judge is correct, and the judgment should be affirmed.

A master deed may provide, however, that a unit owner of a building containing a single unit is responsible for all maintenance and repairs of the building. On the other hand, a master deed may require that the maintenance and repair of a single-unit building is a common expense.

The master deed describes the “[c]ommon areas and facilities” as follows:

“(a) The land described in . . . this [m]aster [djeed, subject to and with the benefit of, as the case may be, all rights, easements, restrictions, covenants, agreements and encumbrances of record, if any, insofar as the same may be in force and applicable.

“(b) All foundations, structural columns, girders, beams, supports, exterior walls, roofs, party walls and common walls between the units and not included as part of the units.

“(c) All conduits, plumbing, wiring, flues and other facilities which are contained within any unit but serve part of the condominium other than the unit within [which] such facilities are contained.

“(d) All other items listed as such in Massachusetts General Laws, Chapter 183A and located on the property.”

FIoor joists and ceiling joists are the same structural rafters above the ground floor.

The majority’s observation that the drafters could have distinguished “between beams that support a common area and beams that support a portion of a unit,” ante at 197-198, is a logical impossibility in this standard method of construction.

The judge observed in his decision that “[t]he trustees concede that even the interior portion of the support beams benefit and support only the balconies and provide no support-type benefit to the building or any portion thereof (other than the balconies). The balcony support beams may be within the envelope of the building and within an area that is otherwise a common area, but their use and exclusive benefit only to the balconies and their adjacent units make them part of the units and not part of the common areas of the Condominium.” (Emphasis added.)

For example, an exhaust system for a cooking stove, venting smoke and *202odor to the outside of the building and serving only one unit, would not be a common element even though it passed through a common area inside the ceiling or wall.

The judge understood this when he concluded in his decision that “[j]ust as conduits, plumbing, wiring, flues and other facilities that do not serve any part of the Condominium other than the unit within which such facilities are contained are not common areas, the support beams that are part of the balconies, and only part of the balconies, and serve no Condominium purpose other than to support the balconies, are part of the units the balconies serve and are not common areas” (emphasis added).