Opinion
11-P-542
04-24-2012
TRUSTEES OF THE ONE HUNDRED NINE CONDOMINIUM TRUST v. CHARLES F. MAUER, JR., trustee.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Charles F. Maurer, Jr., appeals from a judgment of the Superior Court granting summary judgment in favor of the plaintiffs, the trustees of the One Hundred Nine Condominium Trust (trustees), denying the defendant's cross-motion for summary judgment, and ordering the defendant to pay to the trustees damages and costs in the amount of $20,328.50. We affirm.
Background. The facts are not disputed, and the motion judge clearly summarized them on the record. Mauer owns a garden level condominium unit in a building located at 109 Commonwealth Avenue in Boston and owned by the trustees. Adjacent to his unit is a patio, accessible only through Maurer's apartment unit and a locked gate in a fence that encloses the patio. In June, 2007, Mauer decided that the surface of the patio needed to be replaced because it was in poor condition. He sent an e-mail to the trustees' management company, Mediate Management, describing his plans to replace the surface and asking to be informed if Mediate Management required further information. Receiving no response, he removed the existing concrete pavers and replaced them with cobblestones. The trustees, learning of the modification, and believing that Mauer had violated the trust by-laws because he failed to seek the trustees' prior permission, sent him a letter demanding that the patio be restored. Mauer refused. The trustees, after an exchange of communications, began to assess daily fines between December 12, 2008, and the time when the patio was restored, approximately a year and one-half later. This lawsuit followed, and the parties filed cross motions for summary judgment. The judge allowed the trustees' motion, and a final judgment entered accordingly.
Summary judgment. The defendant first argues that because the patio, located behind a six-foot high wrought iron fence, was designated for his exclusive use, and he was solely responsible for its maintenance and repair, he was not required to seek preapproval from the trustees before undertaking the work at his own expense. He also claims that the trustees failed specifically to cite to a section of the condominium documents that expressly requires him to seek prior approval for such work.
The condominium by-laws are set forth under Article V in the declaration of trust. Pursuant to § 5.1.15, the trustees are empowered with the right to review and approve the 'construction, modification or decoration activities with respect to a Unit which involve or impact the Common Areas and Facilities or Exclusive Use Areas.' Under § 5.7.2 of the by-laws, if a unit owner wishes to make an improvement to or affecting a common area of the condominium, 'the Trustees may, but shall not be obligated to, authorize such improvement.' The proposal to undertake an improvement to a common area then triggers conditions outlined in § 5.9 requiring a unit owner, among other things, to seek preapproval from the trustees before work begins.
The significant question, then, is whether the patio is considered part of the common area subject to the control of the trustees. 'It is the master deed that prescribes 'the rules of the game,' Strauss v. Oyster River Condominium Trust, 417 Mass. 442, 452 (1994), and each unit owner's interests are subject to 'the limitations set forth in the master deed and the condominium bylaws.' 39 Joy Street Condominium Assn. v. Board of Appeal of Boston, 426 Mass. 485, 487 (1998).' CBK Brook House I Ltd. Partnership v. Berlin, 64 Mass. App. Ct. 913, 914 n.4 (2005).
Sections 4 and 5 of the master deed designate the boundaries of each of the seven dwelling units making up the condominium and identify the common areas. Section 4(f) describes certain units as having 'appurtenant thereto the exclusive or shared exclusive right and easement to use and enjoy certain portions of the Common Areas and Facilities which are designated as 'Exclusive Use Areas' in Paragraph 7' of the master deed (emphasis added). Paragraph 7(d) of the master deed defines the patio adjacent to the defendant's unit as an exclusive use area subject to 'limitations and conditions as may from time to time be imposed' by the trustees.
Exhibit C to the master deed lists a detailed description of each unit and specifically refers to an 'exterior' common area immediately accessible from the defendant's unit; this area is designated on the condominium site plan, filed contemporaneously with the master deed, as 'common patio/exclusive use unit #1.' [FN1]1 In addition, the unit deed conveys unit one, together with the benefit of 'the exclusive right to use . . . (b) the patio area designated as 'Patio-Exclusive Use, Unit #1' on the Site Plan filed with the Master Deed.' This inclusion in the unit deed 'created an interest in the nature of an appurtenant easement over a described portion of those common areas running in favor of Unit [One].' Schwartzman v. Schoening, 41 Mass. App. Ct. 220, 223 (1996). '[S]uch right of exclusive use is not independent of [or] severable from Unit [One].' Id. at 222. In sum, we are persuaded that the motion judge correctly concluded that § 5.9.1 of the declaration of trust 'did require Mr. Mauer to seek prior approval of the condominium trust as the underlying owner of the exclusive use patio area adjacent to his . . . unit . . . because within the meaning of the documents the resurfacing caused an impairment, or an interruption, or a dislocation to a common area and . . . the master deed explicitly designates the patios as common areas.' As there is no genuine issue of material fact, the judge properly granted summary judgment in favor of the trustees. See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002); Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 643-644 (2002).
Motion for reconsideration. In his motion for reconsideration, the defendant again argued that the judge misinterpreted the condominium documents; in particular, he expanded on his argument relating to § 5.1.15 of the master deed. It is well established that a motion judge has considerable discretion to reconsider prior orders and we 'will show marked deference to the lower court's resolution of such a motion.' Raheman v. Raheman, 59 Mass. App. Ct. 915, 916 (2003), quoting from Chiu-Kun Woo v. Moy, 17 Mass. App. Ct. 949, 949 (1983).
Here, the judge held a hearing on June 10, 2010, on the parties' cross motions for summary judgment. After review of the summary judgment papers submitted, and providing each side with an opportunity for oral argument, the judge ruled on the record in favor of the plaintiffs and 'against [the defendant] on questions of liability.' In his motion for reconsideration, the defendant simply restated arguments previously considered and addressed during the June 10, 2010, hearing. We therefore find no abuse of the judge's broad discretion to deny the defendant's motion for reconsideration. See Paquette v. Department of Envtl. Protection, 55 Mass. App. Ct. 844, 845 (2002).
Equitable estoppel. The defendant finally argues that the trustees should be estopped from enforcing the condominium documents requiring the defendant to restore the patio stone at his expense, because he notified Mediate Management of his intention; he replaced the patio stone only after inaction by Mediate; and he would suffer a hardship if attorney's fees and costs are awarded. While we have sympathy for the defendant, we are not persuaded.
First, the judge rightfully found that it was unreasonable for the defendant 'under all of the circumstances here to rely upon the inaction of Mediate' as there was 'no pattern of omissions, . . . no prior history . . . to make such reliance reasonable.' Compare Renovator's Supply, Inc. v. Sovereign Bank, 72 Mass. App. Ct. 419, 427-428 (2008). Second, the judge found that the defendant violated the terms and conditions of the master deed and by-laws. The trustees have the power (by statute and specific provisions) to enforce the provisions of the condominium documents, including the assessment of fines and attorney's fees against the offending unit owner. G. L. c. 183A, § 6(a)(ii). Third, the defendant also failed to submit to the trustees for approval plans and specifications for the proposed work, to deliver an insurance policy sufficient to cover any potential loss or damage due to the work undertaken, and to await written approval from the trustees for the project prior to commencement of work, all as required by § 5.9.2(a)(i-v) of the by-laws.
Finally, the trustees notified the defendant by letter shortly after the work was complete that he had violated the terms and conditions of the master deed and by-laws; he was informed on July 20, 2007, that he must restore the patio to its 'original paving brick surface' at his own expense. After the defendant's continued disregard of the trustees' ongoing requests, the trustees notified him on December 4, 2008, that a fine of twenty dollars per day would be assessed until the violation was cured. Thereafter, the defendant continued to ignore the trustees' request to restore the patio to its original surface. We agree with the judge that the trustees are entitled to enforce the terms and conditions of the condominium documents and require the defendant to restore the common patio area to its original paving surface; the trustees are also entitled to assess the defendant the cost of such enforcement.
1 The defendant argues that Exhibit C to the master deed does not designate the 'Exclusive Use patio-entranceway as part of Unit 1.' However, reading Exhibit C together with the site plan shows that the defendant's argument is mistaken.
Because the trustees have prevailed on this appeal and made a specific request in their brief, we direct counsel to file with the of this court within ten days a detailed and supported submission of the attorney's fees and costs sought. The defendant shall have an additional ten days to respond thereto. See Fabre v. Walton, 441 Mass. 9, 10 (2004).
Judgment affirmed.
By the Court (Kantrowitz, Trainor, & Hanlon, JJ.), Clerk