(dissenting). I do not quarrel with that part of the majority decision which holds that G. L. c. 183A, § 10(a),1 concerns voting rights of the individual owners in a condominium in the organization created to manage the project. The conclusion that § 10(a) deals with voting rights is logically implicit in the statute’s language. In this respect, § 10(a) operates in congruity with §§ 5(a) and 5(b) of c. 183A,2 to ensure the right of shared participation in the condominium’s common features — a concept which is the essence of the condominium idea.
I part company with my colleagues, however, on the notion that § 10(a) necessarily prohibits the unit owners from entering into valid contracts governing the condominium’s management. General Laws c. 183A was enacted to provide a statutory basis for a form of real estate ownership *245which had a somewhat uncertain status at common law. See Schwartz, Condominium: A Hybrid Castle in the Sky, 44 B.U. L. Rev. 137, 139-143 (1964). The act is fundamentally an enabling statute, like G. L. c. 156B, dealing with business corporations, and G. L. c. 109, pertaining to limited partnerships. Where the statute does not expressly prohibit a practice or is otherwise silent, the parties involved with the condominium are “free to determine their rights with respect to each other [and with respect to the project’s future] by any . . . agreement which does not contravene public policy or run afoul of the common law.” Wasserman v. Wasserman, 7 Mass. App. Ct. 167, 174 (1979). Cf. Johnson v. Keith, 368 Mass. 316, 321-322 (1975); 1 Rohan & Reskin, Condominium Law and Practice § 5.04, at 26-27 (1980). No contention has been made that the trust provisions under study were the product of unfair or deceptive conduct or impermissible overreaching on the developer’s part. Nor is it argued that the trust’s provisions, apart from the perceived conflict with § 10(a), violate any rule of law or policy. The fact that the developer maintained a substantial stake in the condominium’s future is settled by the judge’s findings (based on competent evidence) that “twenty-three . . . commercial units [remain] unsold [and] the . . . [condominium [is] still in the marketing phase.” Furthermore, the existence of the trust and its terms were made known to all who bought condominium units, and the sales and closing documents included acceptance of the management provisions enumerated in the trust. The fact that sales of commercial units have been slower than expected, or that common expenses have increased, will not support rescission of an otherwise valid trust indenture. See Point East Management Corp. v. Point East One Condominium Corp., 282 So.2d 628, 629-630 (Fla. 1973), cert. denied, 415 U.S. 921 (1974). The trust does not divest the other owners to any material or substantial degree of any rights or privileges conferred by c. 183A.
*246In this framework, the majority fail to differentiate between the concepts of ownership and management and incorrectly assumes from the statute’s requirement that the unit owners “shall” have certain percentage interests in the owners’ organization that they must have a precisely corresponding interest in management. Section 10(a) does not so provide. There is evidence in the legislative history that the Legislature was aware of voting rights when it enacted § 10(a),3 but purposely chose to leave the matter to discretionary agreement among the owners and the developer. This made good sense since condominiums differ significantly from one another and it makes especially good sense in this case since the Vendóme is the first mixed use condominium in the Boston area. Thus the majority has written a new provision into § 10(a) which effectively precludes condominium owners from contracting for the contingencies that affect the condominium’s management. I suggest that *247this result, if intended by the Legislature as a matter of policy, would have been clearly expressed in § 10(a).
Finally, I am concerned about the effect of the holding on existing condominiums. General Laws c. 183A is a primitive, first generation condominium statute4 primarily designed to govern residential condominiums. Its draftsmen probably did not anticipate phased condominiums, mixed use condominiums, commercial condominiums, or any of the other mutations which creative real estate lawyers have contrived. Lawyers, mortgagees, lienholders, developers, unit owners and others involved with second generation condominiums have considered c. 183A as affording a measure of flexibility with respect to the condominium’s creation and development and have tailored sophisticated condominium documents to work out the equitable interests of the parties on a host of issues including management. I suspect that the validity of many of these agreements will now be thrown into question and that many people who relied on the statute will soon find their peace and confidence disrupted by unwarranted litigation.
I would affirm the judgment entered in the Superior Court,5 and apply § 10(a) to determine voting interests only in those cases where the condominium’s documents are silent on the question of control.
General Laws c. 183A, §§ 1-19, were inserted by St. 1963, c. 493, § 1.
“ (a) Each unit owner shall be entitled to an undivided interest in the common areas and facilities in the percentage set forth in the master deed. Such percentage shall be in the approximate relation that the fair value of the unit on the date of the master deed bears to the then aggregate fair value of all the units.
“(b) The percentage of the undivided interest of each unit owner in the common areas and facilities as expressed in the master deed shall not be altered without the consent of all unit owners, expressed in an amended master deed duly recorded. The percentage of the undivided interest in the common areas and facilities shall not be separated from the unit to which it appertains, and shall be deemed to be conveyed or encumbered with the unit even though such interest is not expressly mentioned or described in the conveyance or other instrument.”
Chapter 183A was introduced as 1963 House Doc. No. 1708 (“House 1708”). Sections 6(a) and 6(b) of House 1708 expressed the concept of percentage interests as the vehicle for shared ownership in the condominium; these sections were included in c. 183A as §§ 5(a) and 5(b), essentially without alteration. Under §§ 2(d) and 19 of House 1708 the condominium would be administered by an unincorporated association whose by-laws were to be recorded as part of the declaration. This bill went some distance to provide a structure for that association with particular reference to voting. Section 2(k) defined a majority for voting purposes as constituting “apartment owners with fifty-one percent or more of the votes in accordance with the percentages assigned in the declaration,” while § 19 provided for election of a board of managers, mandated a majority of owners as a quorum (but only if the by-laws did not provide otherwise), and provided for election of officers. 1963 House Doc. No. 3324 became c. 183A. The provisions of House 1708 dealing with the voting rights and the specific structure of the owners’ organization were deleted and § 10(a) was added in their place. Use of a corporate or trust form for the owners’ organization was approved along with the unincorporated association form introduced by House 1708. The Legislature refrained from including any specific language as to voting rights within the unit owners’ organization while retaining certain other voting concepts set forth in House 1708. Compare §§ 5(g), 17(b) and 19(a) of G. L. c. 183A with the counterpart provisions in §§ 8,11(9) and 16(a) of House 1708. I think the Legislature by these changes intended to avoid inflexible requirements as to the internal structure of the owners’ organization.
The statute was enacted in 1963 and was patterned on the Federal Housing Administration’s Model Condominium Act which had proved to be a popular model for what was at the time a novel concept of ownership. Most of its salient provisions, including § 10(a), have not been amended since 1963. The statute’s somewhat general approach to the question of control can be usefully contrasted with the more sophisticated dispositions suggested in later statutes. See, for example, Uniform Condominium Act, 7 U.L.A. § 3-103, at 165-167 (Master ed. 1978).
The judge’s ruling that the disputed provisions of the trust are enforceable for a reasonable length of time was not made part of the judgment which simply enjoins the defendants from exercising any powers as trustees. I think that ruling was incorrect but since it was not included in the judgment it need not be dealt with at this time.