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16-P-1143 Appeals Court
MANUEL J. CALVAO & another 1 vs. KATHLEEN E. RASPALLO.
No. 16-P-1143.
Barnstable. May 31, 2017. - September 29, 2017.
Present: Green, Wolohojian, & Ditkoff, JJ.
Condominiums, Common area, Master deed. Real Property,
Condominium, Restrictions. Practice, Civil, Summary
judgment.
Civil action commenced in the Superior Court Department on
December 14, 2011.
The case was heard by Christopher J. Muse, J., on a motion
for summary judgment, and a motion for equitable relief,
assessment of damages, and entry of final judgment was heard by
him.
Peter S. Farber for the defendant.
Brian J. Wall for the plaintiffs.
DITKOFF, J. The defendant, Kathleen Raspallo, appeals from
a Superior Court judgment requiring her, inter alia, to remove
an addition she constructed on condominium common area assigned
1
Brenda E. Calvao.
2
to the exclusive use of her unit. Construing G. L. c. 183A,
§ 5, we determine that a unit owner may not annex exclusive use
common area 2 to her unit without the unanimous consent of the
other unit owners holding a legal interest in that common area.
Discerning no error in the judge's other conclusions, we affirm.
1. Background. We summarize the relevant facts of this
case as presented to the judge on motion for summary judgment
and the subsequent equitable relief hearing. The Tall Pines
Condominium in the town of Dennis consists of two units
separated by approximately thirty-two feet. Manuel and Brenda
Calvao own unit 1, and Kathleen Raspallo owns unit 2, which she
has used as her full-time residence since she purchased it in
2003. The vast majority of the common area is designated for
the exclusive use of one or the other unit. The master deed
grants unit 1 forty-six percent of the beneficial interest in
the condominium and unit 2 fifty-four percent of the beneficial
interest.
In 2011, Raspallo began renovations on her unit, which
included an approximately 111 square foot addition built on
common area designated for her exclusive use. In order to
acquire the necessary permits from the town, Raspallo had the
2
We use the phrase "exclusive use common area" to refer to
"limited common areas and facilities," as defined by G. L.
c. 183A, § 1, that are assigned for the exclusive use of a
single unit.
3
condominium developer, Robert David, who was the sole
condominium trustee, unilaterally appoint Raspallo as the sole
trustee. Despite the Calvaos' objections, Raspallo obtained the
permits and completed renovations in 2012. The Calvaos promptly
filed the present action in Superior Court, both on their own
behalf and derivatively for the condominium board of trustees.
On motion for summary judgment, the judge determined that
the master deed prohibited David from appointing Raspallo as
trustee in 2011 without the Calvaos' consent. 3 The judge found
Raspallo liable for her unilateral actions and ordered the
parties to have meaningful discussions regarding the appointment
of a new trustee and the issue of waste and undue hardship
before the judge determined a remedy. While the parties were
discussing a resolution the court appointed a mutually agreed
upon trustee. Ultimately, the parties were unable to reach a
resolution and at the subsequent remedy hearing the judge
ordered the removal of the addition. The judge also concluded
that the master deed limits the use of unit 2 to seasonal
occupation, enjoined Raspallo from year-round residence, and
awarded the Calvaos $36,291.53 in attorney's fees.
3
Raspallo now agrees that this ruling was correct and,
therefore, Raspallo was never a lawful trustee. The Calvaos
agree that, as a result, Raspallo never owed a duty as trustee,
and we need not address the Calvaos' breach of fiduciary duty
claim.
4
2. Standard of review. We review the grant of summary
judgment on liability de novo to decide "whether, viewing the
evidence in the light most favorable to the nonmoving party, all
material facts have been established and the moving party is
entitled to a judgment as a matter of law." Karatihy
v. Commonwealth Flats Dev. Corp., 84 Mass. App. Ct. 253, 255
(2013), quoting from Augat, Inc. v. Liberty Mut. Ins. Co., 410
Mass. 117, 120 (1991). A decision involving the "imposition of
equitable remedies" rests with the trial judge and is subject to
review only for an abuse of discretion. Cavadi v. DeYeso, 458
Mass. 615, 624 (2011), quoting from Demoulas v. Demoulas, 428
Mass. 555, 589 (1998).
3. Discussion. a. Condominium addition. Expansion of a
condominium unit into a common area requires the unanimous
consent of all condominium owners, regardless of whether the
master deed purports to allow such an expansion with the consent
only of the condominium trustees. See G. L. c. 183A,
§ 5(b)(1); 4 Strauss v. Oyster River Condominium Trust, 417 Mass.
442, 445 (1994). The question presented here is whether this
4
General Laws c. 183A, § 5(b)(1), as appearing in St. 1998,
c. 242, § 5, states, "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 whose percentage of the undivided
interest is materially affected, expressed in an amendment to
the master deed duly recorded," with some exceptions not
relevant here.
5
principle applies where the common area in question is dedicated
pursuant to the master deed for the exclusive use of the
encroaching owner. If this principle does not apply, Raspallo
could have built her addition with the consent of the trustee
and, she argues, she should be able to ask the newly appointed
trustee for retroactive approval. We conclude that the
requirement for unanimous consent applies in this circumstance.
"The condominium is a form of property ownership in which
the unit owner retains an exclusive fee interest in his
individual unit in addition to an undivided interest with all
other unit owners in the condominium's common areas and
facilities." Golub v. Milpo, Inc., 402 Mass. 397, 400 (1988).
Raspallo's view would allow condominium trustees unilaterally to
eliminate an owner's undivided interest in portions of the
common areas, thus negating the essence of condominium
ownership.
The amendments to G. L. c. 183A, § 5, in 1994, see St.
1994, c. 365, and 2014, see St. 2014, c. 483, fortify our view.
These amendments, enacted in response to Kaplan v. Boudreaux,
410 Mass. 435, 443 (1991), permit the condominium trustees to
grant any unit owner exclusive use of any portion of the common
area without the unanimous consent of the unit owners. See
6
G. L. c. 183A, § 5(b)(2)(ii), 5(c). 5 Were we to adopt Raspallo's
view, the condominium trustees could unilaterally assign common
area to the exclusive use of a unit owner and then allow that
unit owner to take fee simple possession of that former common
area by building on it. See G. L. c. 183A, § 4; Golub, supra.
Instead, we recognize that a unit owner has legal ownership of
the common areas, whether or not they are for the exclusive use
of another unit, and cannot be deprived of that ownership
without her consent. Regardless of whether there is a practical
benefit to the legal interest that the Calvaos hold in
Raspallo's exclusive use common land, Raspallo may not
unilaterally assert fee simple ownership over it. See Strauss,
417 Mass. at 445.
As the trustee cannot, as a matter of law, consent to
Raspallo's expansion, the judge properly exercised his
discretion to determine the proper remedy for Raspallo's
unlawful addition. The judge weighed the fact that "Raspallo
flaunted her obligation to get prior approval of the other unit
owner," the feasibility of removing the addition for
"significantly less than" $30,000, and the substantial change
the addition works to the character of the collective premises.
5
The 2014 amendment allows condominium trustees to grant
easements or limitations on the use of common area without
amending the master deed or site plan. See St. 2014, c. 483.
7
We discern no abuse of discretion in the trial judge's
determination that equities here favored removal of the
addition. See Calci v. Reitano, 66 Mass. App. Ct. 245, 251-252
(2006); Brandao v. DoCanto, 80 Mass. App. Ct. 151, 159 (2011).
b. Seasonal use. General Laws c. 183A permits the
imposition of reasonable restrictions on the use of units, "and
persons who contemplate acquisition of a condominium unit can
choose whether to buy into those
restrictions." Woodvale Condominium Trust v. Scheff, 27 Mass.
App. Ct. 530, 533–534 (1989). See G. L. c. 183A, § 4(1). Here,
§ 7 of the master deed states that, "except for Unit 1 [the
Calvaos' unit], which may be occupied on a year round basis, no
Unit may be occupied between November 30th of one year and March
15th of the succeeding year, except that Owners may occupy Units
during said period during weekends, holidays and for customary
second home recreational use." The seasonal use restriction
unambiguously prohibits Raspallo's year round use. Raspallo
purchased her unit subject to her compliance with the master
deed and cannot now claim the right to occupy her unit year
round. The judge acted within his discretion by enforcing the
express provisions of the master deed and enjoining Raspallo
from using her condominium as a year round residence.
8
c. Attorney's fees. The Calvaos brought this suit as a
derivative action on behalf of the condominium board of
trustees. 6 "A derivative suit is brought where the management of
an association of condominium unit owners has failed or refused
to redress a wrong committed against that association. . . .
The wrong complained of must have been committed against the
association itself, not the member of the association." Cote
v. Levine, 52 Mass. App. Ct. 435, 439 (2001). The judge found
that Raspallo's exterior additions "substantially changed the
inherent structure and character of [Raspallo's] unit and
transformed the character of the collective premises." We
discern no clear error in the judge's findings. See Klairmont
v. Gainsboro Rest., Inc., 465 Mass. 165, 183 (2013).
General Laws c. 183A, § 6(a)(ii), provides: "If any
expense is incurred . . . as a result of the unit owner's
failure to abide by the requirements of [the statute] or the
requirements of the master deed, trust, . . . or by the
misconduct of any unit owner," the condominium organization may
assess the expense, including attorney's fees, "exclusively
against the unit owner." As the Calvaos vindicated the
6
Raspallo argues that their derivative action does not
comply with the pleading requirements of Mass.R.Civ.P. 23.1, 365
Mass. 768 (1974), which requires a verified complaint containing
certain specified information, but she failed to preserve her
procedural objection below.
9
condominium board's rights and the statute allows the assessment
of attorney's fees in such matters, the judge acted within his
broad discretion in assessing fees. See Brady v. Citizens Union
Sav. Bank, 88 Mass. App. Ct. 416, 420 (2015).
4. Conclusion. The judgment is affirmed. The order
denying the motion for additional findings of fact, for
reconsideration, and for amendment of the judgment dated May 3,
2016, is affirmed.
So ordered.