Opinion
No. 15–P–1420.
08-03-2016
Meghan McNAMARA & another v. Susan FERRAZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs, coowners of unit 1E in the Hadley Street Condominium (condominium), brought this action against the defendant, the owner of unit 1A in the condominium, seeking declaratory and injunctive relief. A judge of the Land Court allowed the plaintiffs' motion for summary judgment declaring that the plaintiffs have the exclusive right under the condominium master deed to use the patio and parking spaces appurtenant to unit 1E, and that the defendant does not have any right to access, travel across, or otherwise use that patio or those parking spaces. Furthermore, the judge concluded that the defendant does not have a right to access, travel across, or otherwise use the common site utility area adjacent to the parking spaces and the patio. Consequently, the judge permanently enjoined and restrained the defendant and her family members, agents, invitees, representatives, employees, contractors, and others acting in concert with her or otherwise having actual knowledge of the court order from traveling on, crossing, occupying, or otherwise using the patio, parking spaces, or common site utility areas described supra, and from entering or exiting from the garage at the condominium or any other condominium property through the gate to Crescent Street, which is adjacent to the staircase and patio appurtenant to unit 1E, the use of which would entail presence on areas to which the defendant has no right of access. The defendant now appeals.
We see no error in the judge's interpretation of the master deed. It explicitly provides the owner of unit 1E with the exclusive use of the parking spaces and the patio at issue. See G.L. c. 183A, § 1 (allowing common areas to be designated for exclusive use of one unit); Belson v. Thayer & Assocs., 32 Mass.App.Ct. 256, 261–262 (1992) (noting party's exclusive use of common area for patio deck). We see no error in the judge's conclusion that the reference on the condominium site plan to seventy-five square feet is not a reference to the square footage of the patio, the exclusive use of which has been given to the owner of unit 1E. Nor do we see any error in the conclusion that, because the common utility area may only be accessed by unit owners to service, repair, or maintain any utility line, apparatus, or equipment with respect to the utilities provided to their unit, and it is undisputed that the utility area at issue contains nothing that services the defendant's unit, the master deed provides her no right to use or access that area.
The defendant also argues that as a trustee of the condominium she has the right to access the common site utility area and the patio to service, repair, or maintain any utility line, apparatus, or equipment that services the common elements. This argument is presented for the first time on appeal and is therefore waived. See Boston v. Back Bay Cultural Assn., 418 Mass. 175, 178 n. 6 (1994).
The judge concluded that the defendant's unit in the condominium has its own adequate and legal ingress and egress. The sections of the master deed to which the defendant points in support of her allegation that the gate to Crescent Street from the plaintiffs' exclusive use area is a common entrance, exit, or fire escape do not support her position. First, the description of the “entrances and exits of the Building” as common areas in § 4(b) of the deed does not apply to the gate to Crescent Street, which is not part of the building. Even if it did, it would not give the defendant the right to use this gate to cross an area committed to the plaintiffs' exclusive use. Second, the description of “fire escapes” as common areas in § 4(c) does not indicate in any way that the gate to Crescent Street is a fire escape. The defendant has not pointed to anything else indicating that the judge's factual finding in this regard was erroneous.
The “Building” is defined in § 2 as “consisting of a ground level garage and parking area and three (3) stories above.”
We note that each unit in the condominium has an exclusive use easement over two stairwells, one providing access to that unit's parking spaces in the garage, and one providing access to the street. Unit 1E's stairwell for street access leads directly to the gate to Crescent Street.
The defendant's argument that the natural gas meters are located near the gate onto Crescent Street is not supported by a citation to the record and is also raised for the first time on appeal.
Judgment affirmed.