NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-886
MANHUI LIU 1
vs.
MYSTERY, LLC, & others. 2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The dispute before us has to do with where the property
boundary between two commercial condominium units is located.
Defendant Mystery, LLC (Mystery), which owns unit 202, claims
that the existing devising walls separating that unit from unit
204 3 mark the property boundary. The plaintiff, who owns unit
1 Liu brought this action in her capacity as trustee of the 389
Main Street Trust, and she is listed as such in the operative
complaint (referred to by the trial judge as the "second amended
complaint"). According to Liu's appellate brief, however, she
was substituted into the case in her personal capacity, and the
judgment refers to her in that capacity. Nothing ultimately
turns on this.
2 Kirstin Amaral, Jonathan Chase, Lisa Gallatin, David Hornung,
and Hamid R. Tabrizi, as trustees of the City Center Office
Condominium Trust, and Breton LLC.
3 Adding some confusion is the fact that the unit now known as
unit 204, was originally known as unit 201. In 2004, unit 201
was redesignated unit 204, and vice versa. For simplicity, we
204, asserts a different boundary, which if accepted, would
render her unit approximately 200 square feet larger. Following
a bench trial, a Land Court judge ruled in the defendants' favor
with respect to the location of the boundary. Judgment entered
declaring that the boundary between the units "is the wall
physically separating the Units as depicted on [an attached as-
built plan]." Mystery was ordered to execute amendments to the
master deed and trustee's certificate to reference that
boundary. 4 On Liu's appeal, we affirm.
Background. The condominium was created in 1983.
Originally, units 202 and 204 were held in common, and there
were no devising walls separating them. There was, however, a
boundary shown as a dashed line on a floor plan incorporated
into the master deed. In 1999, while the units remained in
common ownership, devising walls separating the units were
constructed to accommodate a tenant who wanted to rent only one
side of the combined space. However, the devising walls were
will refer to the unit now known as unit 204 as unit 204, even
when referring to the period in which it was known as unit 201.
4 Liu claimed that as a result of the judge's ruling, her unit
became smaller than she and others may have previously thought,
and that this had the effect that she overpaid her property
taxes and condominium fees. The judge allowed her to add two
counts to her complaint to try to recover any such damages. In
the judgment, the judge ordered Mystery to pay Liu $2,447.59 in
excess property taxes, while dismissing her claim that she paid
excess condominium fees. Neither side has challenged this
aspect of the judgment.
2
not built along the original intended boundary between the
units. Notably, the geometric relationship between the
originally contemplated boundary line and the devising wall as
built is a complicated one. While the original contemplated
boundary was a simple straight line, the devising wall takes
many "jogs" that follow the interior rooms that were built out.
In addition, the two lines cross each other. As a result, part
of unit 202 as it was built out falls on the unit 204 side of
the originally contemplated boundary, while part of the newly
configured unit 204 falls on the unit 202 side of that line.
The net effect was that unit 202 was about 200 square feet
larger than was originally contemplated, and unit 204 about the
same amount smaller. For years, this discrepancy was of no
apparent consequence, because the two units remained in common
ownership.
In 2004, the then-common owner of the two units, Breton LLC
(Breton), sold Unit 202 to Mystery. However, the parties to
that sale did not at that time follow the proper procedures set
forth in the master deed for redrawing the unit boundaries in
the event a unit was subdivided for the purpose of combining
part of it with another unit. Instead, the 2004 deed for unit
202 referenced the floor plan attached to the 1983 master deed,
which no longer accorded with how the units were built out.
3
In 2006, Breton advertised unit 204 for sale. The real
estate listing erroneously stated that unit 204 contained 1,569
square feet of office space. After viewing the unit personally,
and apparently finding it to her liking for her dental practice,
Liu entered into a purchase and sale agreement to buy unit 204
and a 6.6842 percent share of the condominium's common areas.
That percentage share corresponded with the square footage of
the unit referenced in the listing, and both figures appear to
derive from the size that unit 204 would have been if it were
laid out consistent with the floor plans attached to the master
deed.
Sometime prior to the scheduled closing, an attorney hired
by Liu discovered the discrepancy between the boundary shown in
the floor plan attached to the master deed, and the boundary
established by the actual devising walls separating the units.
In addition, a contractor that Liu had hired for the "fit-up"
discovered that the actual size of unit 204 was about 200 square
feet smaller than had been listed. As the judge noted, the
discrepancies that Liu's lawyer and contractor had uncovered
provided her with a basis for backing out of the purchase and
sale contract. However, rather than asserting Liu's right to do
so, her attorney focused instead on going through with the sale
while first having the legal documents modified to conform to
the conditions on the ground. The closing was delayed to allow
4
this to happen. 5 The unit deed was modified to reflect that Liu
was receiving only a 5.6 percent share of the common property, a
percentage that apparently corresponded with the parties'
understanding of the reduced square footage that she was
obtaining. 6 In addition, a new floor plan showing the as-built
boundaries of unit 204 was prepared, and Breton took steps to
modify the master deed to reflect the new boundary. As the
judge found, Liu's attorney was aware of and deeply involved in
these efforts; indeed, the attorney was the one insisting that
the legal documents reflect the conditions on the ground and
that this be cleared up prior to the closing. The amendments to
the master deed to clarify the boundaries of unit 204 were
recorded prior to the recording of the unit deed that Liu had
accepted at the closing.
Alas, the joint efforts to put things in order did not meet
the procedural exactitude required for amendments to the master
deed, e.g., with respect to the percentage of unit owners
5 Liu knew from her attorney that the closing had to be delayed,
but she claimed that the attorney -- who had died by the time of
trial -- never told her why. The judge declined to say whether
he believed such testimony, because he concluded that the
attorney's knowledge could be attributed to her client
regardless.
6 The judge accepted Mystery's position that unit 204 included
1,385 square feet, but ultimately ruled that the percentage
share of common space that Liu had obtained was 5.9001 percent.
The discrepancy between that percentage share, and the slightly
lower figure included in Liu's deed, lies unexplained.
5
necessary to execute such an amendment. Accordingly, the judge
ruled that the amendments were ineffective. Based on this, Liu
now argues that she is entitled to unit 204 as set forth in the
floor plans attached to the 1983 master deed, regardless of
whether she had understood at the time that she was buying the
unit as it had been built out.
Discussion. As her counsel acknowledged at oral argument,
Liu is charged with her closing attorney's knowledge of the
discrepancy between the layout of unit 204 as originally
conceived and its layout as actually built. See One-O-Six
Realty, Inc. v. Quinn, 66 Mass. App. Ct. 149, 154 (2006). In
addition, she can be charged with knowledge of obvious site
conditions that existed at the time of purchase, including the
jagged devising wall that separated the unit she was purchasing
from unit 202. See Lavoie v. McRae, 102 Mass. App. Ct. 14, 23
(2022), quoting Mt. Holyoke Realty Corp. v. Holyoke Realty
Corp., 284 Mass. 100, 107 (1933) (party acquiring title "can be
charged with knowledge of 'obvious and unescapable' site
conditions"). Nothing in the record suggests that at the time
of the closing, Liu thought that she was buying a unit that had
a boundary that was different from the existing devising wall
she herself had observed. This also appears to be supported by
6
her postclosing conduct. 7 Cf. Reagan v. Brissey, 446 Mass. 452,
461 (2006) (looking to postclosure conduct as evidence of
parties' intent).
The judge ruled that under these circumstances, Liu
knowingly relinquished her right to claim that she had purchased
unit 204 as originally laid out in the 1983 floor plan (so long
as the underlying paperwork was modified to conform to her
expectations). Whether Liu waived her claim in this manner is a
question of fact. See KACT, Inc. v. Rubin, 62 Mass. App. Ct.
689, 695 (2004). We discern no clear error in the judge's
finding that she did so. To the extent she claims that the
trial evidence did not meet the higher burden of proof
7 Nothing before us indicates that prior to the filing of her
complaint in 2018, Liu took any action that suggests she was
claiming ownership of a portion of unit 202, or that part of the
space she was occupying actually belonged to Mystery.
7
applicable to implied waiver, Liu has not provided a transcript
of the proceedings necessary for us to evaluate such a claim. 8
Judgment affirmed.
By the Court (Milkey, Blake &
Sacks, JJ. 9),
Clerk
Entered: October 27, 2023.
8 We additionally note that the judge's ruling is potentially
supportable on at least one alternative ground. All signs
indicate that both parties to the 2007 closing (Breton as seller
and Liu as buyer) understood that Liu was purchasing unit 204 as
built. Accordingly, reformation of the unit deed based on
mutual mistake presents an obvious potential alternative ground
for rejecting Liu's claim. Since we do not rely on that ground,
we need not resolve the potential import of Howell v. Glassman,
33 Mass. App. Ct. 349, 352 (1992) (reformation of unit deed not
available where proposed amendment to unit deed would conflict
with amendment to master deed).
9 The panelists are listed in order of seniority.
8