Opinion
12-P-1103
02-18-2014
EDWARD KESSLER, trustee, & others v. MINA HARRINGTON.
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
This appeal arises out of an action brought by the trustees of the One Chestnut Condominium Trust pursuant to G. L. c. 183A against Mina Harrington, the owner of unit 1A of the condominium. Harrington refused to provide access to her unit to the trustees' contractors for the purposes of inspecting and remediating a dangerous condition resulting from the fact that the fireplace in Harrington's unit shares a common flue with that of the furnace that heats all units in the condominium. In addition to Harrington's good-faith concerns about the impact of the inspection on the valuables in her living room and her husband Curt Deininger's concerns (which the judge found to be unreasonable) regarding the qualifications of the contractors hired by the trustees to perform the work, Harrington claimed that she had an easement to use the flue and that the solution the trustees adopted to address the dangerous condition -- to install in the chimney a flue liner comprised of metal sheets all the way to the base of the furnace, which would cut off Harrington's access to the flue and make her fireplace inoperable -- was unlawful as it deprived her of a deeded property interest.
Over the course of approximately five years, the trustees spent a significant amount of money investigating other available options for Harrington. As a result of the investigation, the trustees were faced with either making Harrington's fireplace unusable by installing a flue liner at the cost of $14,000, or spending over $100,000 to change the configuration of the building's heating system.
After a nine-day bench trial, a Superior Court judge issued findings, rulings, and a judgment in favor of the trustees. The judge reasoned that the law of easements was inapplicable to the 'hybrid' interest that the owners in the condominium enjoy in the common areas, and that Harrington 'cannot have an easement in her own tenancy in common.' As part of the judgment, Harrington was also ordered to pay the trustees' legal costs and fees. Harrington appealed. We affirm the judgment of the Superior Court, albeit on different grounds than those relied upon by the judge.
Among other things, the judgment enjoined Harrington and Deininger from obstructing access to their unit for the purposes of installing the steel liner in the flue and required them to refrain from communicating with or threatening legal action against the contractors involved in performing the work on the flue.
The condominium master deed expressly includes its 'flues' as part of the condominium's common areas and facilities, which the master deed refers to as the 'Common Elements.'
Discussion. We start with the assumption, favorable to Harrington, that at the time the dual venting was created, it was not in violation of the then-current building code., The record is silent as to this fact, as well as to whether the dual venting already existed at the time of the condominium's creation.
However, in the event that the dual venting was in violation of the building code at the time the dual venting was created, this case is easily disposed of under the Restatement (Third) of Property (Servitudes) (2000). Our courts often have resorted to the Restatement of Property as an authoritative statement of the common law. See, e.g., Kaplan v. Boudreaux, 410 Mass. 435, 440 (1991); Cater v. Bednarek, 462 Mass. 523, 531 (2012); Lowell v. Piper, 31 Mass. App. Ct. 225, 229-230 (1991); Cheever v. Graves, 32 Mass. App. Ct. 601, 607 (1992). Under the Restatement, a servitude 'is valid unless it is illegal or unconstitutional or violates public policy.' Restatement (Third) of Property (Servitudes) § 3.1 (2000). Comment c to § 3.1 provides that '[a]n illegal servitude within the meaning of this section is one that is prohibited by a statute or governmental regulation.' The servitude that Harrington purports to hold is illegal under 527 Code Mass. Regs. § 4.04(9)(b)(14) (2013), a governmental regulation. Under this provision of the code, '[a] connector shall not be connected to a chimney flue serving a fireplace unless the fireplace opening is sealed or the chimney flue that vents the fireplace is permanently sealed below the connection.' Identical language in the code dates back to at least 1995. Harrington thus cannot assert rights based on an easement that is in violation of the State building code.
Also in the event that the dual venting was in violation of the building code at the time the dual venting was created, the plain language of the governing documents contemplates that safety violations or violations of the State building code will not be created or allowed to persist. The master deed states that '[t]he Trustees and their authorized agents and employees shall have a right . . . to remove violations [from each unit] and to maintain, repair or replace the Common Elements contained therein or elsewhere in the Building.' Because Harrington's unit deed is subject to '[p]rovisions of existing building and zoning laws,' it also contemplates that code or safety violations will be remedied. It could not have been the intent of the condominium declarants (who were also the grantors on Harrington's unit deed) to create an easement that is a code violation in itself. There is ample evidence in the record to support the judge's findings that Harrington's unit creates code and safety violations by venting into the same flue as the condominium's furnace. This is not disputed by Harrington.
'The extent of an easement depends on the circumstances of its creation . . . . When created by conveyance, the grant or reservation 'must be construed with reference to all its terms and the then existing conditions so far as they are illuminating." Lowell v. Piper, 31 Mass. App. Ct. 225, 230 (1991), quoting from Mugar v. Massachusetts Bay Transp. Authy., 28 Mass. App. Ct. 443, 444 (1990). A reviewing court must 'construe the scope of an easement from the parties' intent . . . ascertain[ed] from the relevant instruments and the objective circumstances to which they refer.' McLaughlin v. Selectmen of Amherst, 422 Mass. 359, 364 (1996). Whether the dual venting existed at the time of the condominium's creation does not affect our analysis. The question whether Harrington's easement can be extinguished or whether the trustees are obliged to remedy the code and safety violation is decided by the terms of the master deed.
Section 6 of the master deed states, in pertinent part:
'Each Unit Owner shall have an easement in common with the owners of all other Units to use all pipes, wires, ducts, flues, cables, conduits, public utility lines and other Common Elements located in any of the other Units or elsewhere in the Condominium and serving his Unit. Each Unit shall be subject to an easement in favor of the owners of all other Units to use the pipes, wires, ducts, flues, cables, conduits, public utility lines and other Common elements located in such Unit and serving other Units. The Trustees and their authorized agents and employees shall have a right of access (at reasonable times and upon reasonable notice except in emergencies) to each Unit to inspect the same, to remove violations therefrom and to maintain, repair or replace the Common Elements contained therein or elsewhere in the Building.'
The plain language of the master deed states that '[e]ach Unit shall be subject to an easement in favor of the owners of all other Units to use the . . . Common Elements located in such Unit and serving other Units.' The deed therefore contemplates that there may be conflicts between easements held in common and easements held by individual units. According to the deed, when these conflicts arise, the unit owner's rights are subject to the easement in favor of the owners of all other units. See G. L. c. 183A, § 11(e) (organization of unit owners may restrict the use of a unit to prevent unreasonable interference with the use of common areas and facilities by others). The governing documents cannot be read to allow unit 1A's use of the flue to violate the easements in the furnace and flue belonging to other units.
This reading is consistent with the law of easements in common. 'The obligation between those who hold separate or common easements over the same land is that they act reasonably in the exercise of their privileges so as not to interfere unreasonably with the rights of other easement holders.' Cannata v. Berkshire Natural Resources Council, Inc., 73 Mass. App. Ct. 789, 797 (2009). Because the other easement holders have rights to the common elements of the furnace and flue, Harrington's use of her privileges may not interfere with those rights.
Whether Harrington is entitled to compensation is not before us. We note, however, that there is evidence in the record that the fireplace has not been used since the 1990s. Furthermore, the judge found after taking a view and hearing evidence and argument from both sides that the loss of operability of the fireplace 'would only nominally affect [unit] 1A's fair market value.'
In view of the result we reach, we affirm the trial court's award of costs and attorney's fees to the trustees. See G. L. c. 183A, § 6. As to Harrington's argument on appeal regarding her counterclaim, for the reasons discussed above she was not entitled to a declaratory judgment in her favor on the easement issue, and we agree with the trial judge that the trustees did not violate their fiduciary duty and were not unjustly enriched.
Under G. L. c. 183A, § 6(a)(ii), as appearing in St. 1992, c. 400, § 7, the plaintiffs are entitled to costs and attorney's fees only if it is established that Harrington 'fail[ed] to abide by the requirements of this chapter or the requirements of the master deed, trust, by-laws, restrictions, rules or regulations,' or committed 'misconduct.'
Judgment affirmed.
By the Court (Green, Hanlon & Agnes, JJ.),