Opinion
11-P-887
03-06-2012
BOARD OF MANAGERS OF THE ANCHORAGE REALTY TRUST v. MARY LANDRIO.
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 (Landrio) appeals from the grant of summary judgment to the plaintiff (board), and the entry of a permanent injunction prohibiting Landrio from installing awnings on the exterior of certain windows in her condominium unit without the approval of the board. The applicable legal standards are well-established. On review of summary judgment, we consider the record and the legal principles involved without deference to the motion judge's reasoning; our review is de novo. See Giuffrida v. High Country Investor, Inc., 73 Mass. App. Ct. 225, 227 (2008), and cases cited.
Here, we reach the same conclusion as the motion judge, but by relying upon a different provision of the by-laws. Article 5, section 8, upon which the motion judge relied, pertains only to a structural addition, alteration or improvement in or to an owner's condominium unit. More to the point is section 7.2, which provides that '[a]ll maintenance, repairs and replacements to the common elements, as defined in the Master Deed, including painting and decorating of the exterior doors, walls, and windows, shall be made by the Board of Managers and shall be charged to Unit Owners as a common expense.' Although the record does not contain the Master Deed, it is evident from this by-law provision that the building exterior is considered to be a common element and not part of Landrio's unit, itself. Like any unit owner, Landrio has no unilateral authority to alter a common element and, hence, may not affix awnings to the exterior of her windows without board authorization.
Judgment affirmed.
By the Court (Cypher, Cohen & Wolohojian, JJ.),