Opinion
No. 06-00099-J.
August 11, 2006. August 14, 2006.
MEMORANDUM AND ORDER ON THE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Before the Court is the plaintiff's motion for summary judgment. The motion is ALLOWED.
Introduction
This action arises from a dispute between the Trustees of the Residences at Chestnut Hill Condominium Trust ("The Trustees") and condominium owners Leonard and Arlene Jacobs ("the Jacobs'") regarding the Jacobs' rights in relation to the exterior of their condominium unit and a certain area of land adjacent to the unit. Arguing that the Jacobs' are in violation of the condominium's governing documents, the Trustees brought this action to enforce those documents by way of a declaratory judgment and to enforce a statutory lien for assessed fines, attorneys' fees, and costs pursuant to G.L. c. 183A, § 6 and G.L. c. 254, §§ 5 and 5A. The Jacobs' brought counterclaims against the Trustees.
The Jacobs' counterclaimed: "Defendants have destroyed our property and harassed us unilaterally causing emotional distress and exceeded their authority as trustees of the trust."
Undisputed Facts
The Trustees are the organization of unit owners for the Residences at Chestnut Hill Condominium ("the Condominium") established in accordance with G.L. c. 183A, § 10. The Jacobs' are owners of Unit 105 of Building 2 of the Condominium, with an address of Unit 2, 350 Boylston Street, Newton, Massachusetts ("the Unit"). The Condominium was created in accordance with G.L. c. 183A by Master Deed dated February 8, 2002. It consists of fifty-eight units in seven buildings and was developed in five phases. The units built in Phases I, III, and IV are townhouse style units, and the units built in Phases II and V are garden apartment style units housed in mid-rise buildings.
The Unit was conveyed from the Developer, CFK of Newton Development Company, LLC ("the Developer") to the Jacobs' by Unit Deed dated February 14, 2002 ("the Unit Deed"), which specifically incorporates the Master Deed. The Unit is a garden apartment style unit constructed as part of Phase V. According to the Master Deed, the boundaries of all Phase V units in regard to "Exterior Building Walls" is "[t]he plane of the interior surface of the wall studs." Master Deed, § 5.2.
The Master Deed grants to the owners of units developed in Phase V the exclusive right, collectively, to use various common areas of the Phase V development, including the balconies and patios located on the Phase V Building. Master Deed, § 7.5. Further, the Master Deed provides, in pertinent part:
The owner of a Phase V Unit which abuts a Balcony or Patio shall have, as appurtenant to its Unit, an easement for the exclusive right to use such Balcony or Patio. . . . Each Phase V Unit owner may place ordinary items of furniture, carpets and plants on the Balcony and/or Patio which is appurtenant to its Unit, provided that all such furniture, carpets and plants shall be entirely contained within such Balcony or Patio. Balconies and Patios shall not be enclosed except by fences, walls, railings or other enclosures installed by [the Condominium Developer] or as approved by the Trustees in writing. The cost to maintain, repair or replace the Balconies and Patios shall be a Garden Common Charge. Each Phase V Unit owner shall maintain its Balcony and/or Patio in a neat and orderly condition.
Master Deed, § 7.5(a).
Consistent with this provision in the Master Deed, the Unit Deed to the Jacobs' unit provides, in pertinent part, that "[t]he Unit is conveyed together with: . . . (b) an easement for the exclusive use of certain common areas of the Condominium to the extent set forth in Section [7.5] of the Master Deed." Unit Deed, p. 2.
The Unit Deed contains what appears to be a typographical error by referring here to Section 7.2 of the Master Deed. Section 7.2 and Section 7.5 are identical in substance, but Section 7.5 defines the common areas of the Phase V garden units, while Section 7.2 defines the common areas of the Phase II garden units. Because the Jacobs' unit was built in Phase V, the Unit Deed should refer to Section 7.5, and not Section 7.2.
The Jacobs' unit abuts a patio, and thus, pursuant to the Master Deed and Unit Deed, the Jacobs' have an easement for the exclusive right to use that patio ("the Patio"). The Patio is referenced in the Master Deed and the incorporated Site Plans, as well as the Unit Deed and the incorporated Unit Plan. As defined and drawn therein, the Patio is rectangular in shape.
Prior to obtaining the Unit by the Unit Deed, the Jacobs' entered into a purchase and sale agreement ("the PS") with the Developer. The Developer apparently has no present relationship to the Trustees.
In a Rider to the PS, the Developer agreed to complete a number of improvements to the Unit prior to closing, including extending the Patio and enclosing a certain portion of yard area behind the Unit with a fence. The Developer did in fact construct those improvements for the Jacobs'. After moving in, the Jacobs' planted a vegetable garden and dug four dog graves in the yard so fenced in. The Jacobs' did not receive approval from the Trustees either to maintain the vegetable garden or to dig and memorialize the dog graves.
In addition, after moving in, the Jacobs' affixed a number of items to the exterior of the Condominium building within the Patio area and also within the extended semi-circle patio area including a satellite dish, stereo speakers, a ceiling fan, two antennas, and a "bug zapper." The Jacobs' also drilled holes through the building's exterior surface to install a gas line.
The Master Deed provides that "[a] unit owner may not, at any time, make any changes or modifications to the exterior of any Unit or Building, . . . unless the same has been approved by the Trustees of the Condominium Trust." Master Deed, § 11. The Jacobs' did not receive approval from the Trustees to affix the various items to, or drill holes through, the exterior of the Condominium building.
In various letters throughout May, June, July, and August 2005, the Trustees demanded that the Jacobs' remove the items affixed to the exterior of the Condominium building, the extended, fenced-in patio area, and the fence itself, claiming that these areas were common areas. After the Jacobs' refused to remove the items, the Trustees voted to impose a daily fine of $50 beginning on August 1, 2005, until the Jacobs' removed all of the items. The Jacobs' did thereafter remove the dog graves. And the Jacobs' permitted the Trustees to remove the vegetable garden and fencing. However, most, if not all, of the other items remain.
Discussion
Violations of Master Deed 1. Extended Patio and Fence
The Trustees claim that the Jacobs' violated the governing Condominium documents by placing a fence around the yard area behind their unit and by extending the patio abutting their unit. The Trustees claim that the yard area and the area upon which the patio extension sits is common area of the Condominium to which the Jacobs' have no individual right.
A person obtains ownership of land only upon proper execution of a deed to convey land. G.L. c. 183, § 1. The deed is the instrument that defines what property is conveyed therein. "[A]ll rights, easements, privileges and appurtenances belonging to the granted estate" must also be included in the deed conveying the estate. G.L. c. 183, § 15.
Together, the Master Deed, the Unit Deed, and the incorporated Unit Plan define the boundaries of the Jacobs' unit and the Jacobs' right to use the Patio that abuts their unit. The Unit Plan, incorporated in the Unit Deed, depicts a rectangular-shaped patio located at the rear of the Jacobs' unit and defines that patio as an "exclusive common appurtenant area." The Master Deed defines all patios erected as part of Phase V as common area, but also grants to each Phase V unit owner an easement for the exclusive right to use any patio that abuts their unit. Thus, pursuant to the Master Deed and the Unit Deed, the Jacobs' have an easement for the exclusive right to use the rectangular-shaped patio that abuts their unit only, i.e., what has been defined herein as the "Patio".
Neither the Master Deed nor the Unit Deed conveys to the Jacobs' the land upon which the semi-circle extended patio resides or the yard area behind the Unit that was previously surrounded by the fence. These areas are defined in the Master Deed as common area for the benefit of all the condominium owners. Master Deed, § 6.5. Unlike the rectangular-shaped patio shown in the Unit Deed, the Jacobs' have no easement for the exclusive right to use these areas. Moreover, Section 7.5(a) of the Master Deed, which allows the Jacobs' to erect a fence around their patio, only allows them to enclose the rectangular-shaped patio and nothing more.
In contrast, owners of the townhouse style units constructed in Phases I, III, and IV have easements for the exclusive right to use yard areas that abut their units, similar to that provided to owners of Phase II or Phase V units for the balconies and rectangular patios. Master Deed, §§ 7.1(d), 7.3(d), 7.4(d).
The Jacobs' claim that they have a right to the extended patio and to have a fence around the yard area behind their unit pursuant to the Developer's covenants in the PS. The Jacobs' claim that they negotiated for the extended patio and fence when purchasing the Unit and paid the Developer extra for these additions. In the Rider to the PS between the Jacobs' and the Developer, the Developer in fact agreed to a number of improvements to the Unit prior to closing, including extending the original rectangular-shaped patio and enclosing a portion of yard area behind the Unit with a fence.
It is unclear whether the Jacobs' claim that they have the exclusive right to use the formerly fenced-in yard area or if they claim that, while the yard area is common area to which they have no exclusive right, they have the right to have the fence around that area. Although letters from their prior counsel to plaintiff's counsel state the latter, in their response to the summary judgment motion, the Jacobs', pro se, claim the former.
However, these additions are not referenced in the Unit Deed nor are they drawn on the incorporated Unit Plan. As a result, although the Jacobs' may have reasonably believed that they purchased these additions from the Developer, the right to them was never conveyed. All rights, easements, privileges and appurtenances belonging to a granted estate must be included in the conveyance instrument; here, the Unit Deed. G.L. c. 183, § 15. Therefore, although the Jacobs' may have a breach of contract action against the Developer and a claim against their closing counsel, they have no right vis-B-vis the Trustees to diminish the common area of the Condominium.
Although the Jacobs' do not have a right to the exclusive use of the fenced in area and patio extension, the Jacobs' did not violate the condominium's governing documents with respect to these items. The Trustees do not dispute that the patio extension was placed in the common area of the Condominium by the Developer and not by the Jacobs'. Thus, the Jacobs' have no obligation to remove the patio extension and should not be forced to bear the cost of removal. The Trustees are the entity in charge of the managing, maintaining, and repairing the common areas of the Condominium. G.L. c. 183A, § 10; Master Deed, § 15; Declaration of Trust, § 5.3. Consequently, they may choose to remove, through proper procedure under the Declaration of Trust and Master Deed and at their own cost, the semi-circle pavement area.
2. Items Attached to Exterior of Condominium Building, Vegetable Garden, and Dog Graves
As noted, the Trustees also claim that the Jacobs' violated the governing Condominium documents by: (1) attaching an antenna, satellite dish, speakers, and a ceiling fan to the exterior of the Condominium building; (2) placing a "bug zapper" and a second satellite dish outside of their exclusive use areas; (3) installing a gas line through the masonry walls/foundation; and (4) placing a vegetable garden and four dog graves in the common yard area.
The Master Deed provides that, as to exterior building walls, the boundaries of the Jacobs' unit are at the "plane of the interior surface of the wall studs." The exterior surface of the Condominium building is not part of the Jacobs' unit but is a common area under the control of the Trustees. In accordance therewith, the Master Deed specifically prohibits a unit owner from modifying the exterior of the Condominium building without prior approval from the Trustees. Master Deed, § 11. The Jacobs' did not obtain approval from the Trustees to affix the satellite dish, stereo speakers, ceiling fan, antenna, "bug zapper," and other items to the exterior surface of the Condominium building.
Ownership of a condominium unit is a hybrid form of interest in real estate that entitles a unit owner to both exclusive ownership of his individual unit and a percentage of the interest in the common areas of the condominium. Noble v. Murphy, 34 Mass. App. Ct. 452, 455-456 (1993), quoting Kaplan v. Boudreaux, 410 Mass. 435, 438 (1991). "Central to the concept of condominium ownership is the principle that each owner, in exchange for the benefits of association with other owners, must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property." Id. at 456 (internal quotation omitted).
In purchasing the Unit, the Jacobs' gave up the right to choose the configuration and appearance of the common areas of the Condominium, including those directly touching upon the boundaries of their unit and to which they have an exclusive right to use.
The Jacobs' violated the Master Deed when they modified the exterior of the Condominium building by attaching items to the building's exterior surface and drilling holes through the exterior surface, without first seeking Trustee approval.
The Jacobs' claimed at oral argument that the Developer erected the ceiling fan in the rectangular-shaped patio; an item they also bargained for in the PS. The ceiling fan, however, is not mentioned in the Rider to the PS or other documents comprising the summary judgment record.
The Master Deed defines the yard area behind the Jacobs' unit as common area. The Jacobs' violated the Master Deed when they placed a vegetable garden and dog graves within the common yard area behind their unit without first obtaining the Trustees' approval. However, the vegetable garden and dog graves have already been removed by the Jacobs' or the Trustees. Thus, no action is necessary with respect to these past violations.
B. Damages: Lien on Unit for Fines and Collection Costs
Because the Jacobs' refused to remove the items affixed to the exterior of the Condominium building and placed in the rectangular-shaped patio area, as well as the extended patio, fence, vegetable garden and dog graves, the Trustees voted to impose a daily fine of $50 per day beginning on August 1, 2005, as long as any of the alleged violations continued. Sometime thereafter, the Jacobs' removed the dog graves, and the Trustees removed the vegetable garden and fencing. The Trustees allege, and the Jacobs' do not dispute, that the other items have not been removed.
The pleadings do not state when the dog graves, fence, and garden were removed. The only mention of the removal of these items is in the complaint. See Complaint, ¶ 15.
Pursuant to G.L. c. 183A, § 10(b)(5), the Trustees have the right to "levy reasonable fines for violations of the master deed, trust, by-laws, restrictions, rules or regulations of the organization of unit owners." The right of the Trustees to levy reasonable fines also appears in Section 5.1(l) of the Declaration of Trust, to which the Jacobs' as unit owners are bound. Master Deed, § 17. As found above, the Jacobs' violated the Master Deed by attaching items to the building's exterior surface, drilling holes through the exterior surface, and placing a vegetable garden and dog graves within the common yard area behind their unit without first obtaining Trustee approval. The Trustees had a right to impose a reasonable fine for these violations. The Jacobs challenge the fines imposed as unreasonable and unlawful. I find and rule that they were lawful and that they were reasonable in amount under all the circumstances.
The Trustees have a statutory lien against the Unit for the unpaid fines, as well as the costs of collection and enforcement of said fines, including attorneys' fees. G.L. c. 183A, § 6(a)(ii), provides in pertinent part:
The organization of unit owners may . . . assess any fees, attorneys' fees, charges, late charges, fines, costs of collection and enforcement, court costs, and interest charged pursuant to this chapter against the unit owner and such assessment shall constitute a lien against the unit from the time the assessment is due, and shall be enforceable as common expense assessments under this chapter.
By affidavit, the Trustees have established that as of April 30, 2006, the Jacobs' have been fined a total of $13,500 in connection with their violations of the Master Deed. The Trustees allege, and the Jacobs' do not dispute, that no part of these fines has yet been paid by the Jacobs'.
The lien against the Unit for the unpaid fines is statutory, not judicial. Thus, the Trustees are not asking the court to establish the lien by court order, but to enforce it. In determining the amount of the statutory lien for purposes of enforcement, the court must look to what amount has been proven by the parties to be due and owing. See Baker v. Monga, 32 Mass. App. Ct. 450, 452 (1992) (calculating the amount of the lien to be enforced by the court in this manner). Here, the Trustees have proven, by way of affidavit, that, as of April 30, 2006, the Jacobs' owed $13,500 in fines. Thus, this is the amount of the lien to be enforced by the court in this action.
The statutory lien amount also includes attorneys' fees. G.L. c. 183A, § 6(a)(ii). By affidavit of plaintiff's counsel, the Trustees have established that they have incurred legal fees and costs of collection totaling $14,333.28 as of May 11, 2006. In his affidavit, plaintiff's counsel also stated that he anticipated expending an additional $1950.00 reviewing the Jacobs' opposition to the motion for summary judgment and prepared for and attending a hearing on the motion. Thus, the overall total of fees and expenses submitted is $16,283.28.
"[T]he Association's entitlement to attorneys fees, and their inclusion in any lien, is subject to the limitation that they must be reasonable." Trustees of Whitehall Condominium Trust v. Wilson, 2002 Mass. Super. LEXIS 380 (Essex Super. Ct., Jan. 28, 2002) (Billings, J.). "All attorneys fees, moreover, are limited by the general principle that all court-awarded attorneys fees, and specially those awarded against an opposing party under a fee-shifting statute, are to be reasonable." Id. See Linthicum v. Archambault, 379 Mass. 381, 390 (1979) ("Where the award of costs is statutorily authorized, judges are vested with discretion either expressly or by judicial construction in determining the size of the award."). Determining what constitutes a reasonable attorney fee award is a process "committed to the sound discretion of the judge." Berman v. Linnane, 434 Mass. 301, 302-303 (2001).
I have reviewed the affidavit of the Trustees' counsel and the detailed billing back-up that accompanied it. I find that counsel's rates ($155-$275/hour for associates; $290-$360/hour for partners) are high but within the realm of reason in light of prevailing billing rates in the Boston metropolitan community for sophisticated legal services of the type provided here. Further, I find that the quality of the services and the credentials of the attorneys involved were appropriate to the task. Nevertheless, I find that the overall cost of the transaction ($16,283.28) is not reasonable in the context of the particular case before the Court. Instead, I find that $12,000 is a fair and reasonable amount for legal fees and costs incurred in the plaintiff's representation.
C. Counterclaim
Along with their answer to the complaint, the Jacobs' filed a single count counterclaim. The Jacobs' claim that the Trustees "have destroyed our property and harassed us unilaterally causing emotional distress and exceeded their authority as trustees of the trust." In moving for summary judgment, the Trustees ask the court to "enter summary judgment in favor of [them] and against the [Jacobs'] on all counts" (emphasis added).
However, nowhere in their summary judgment submission do the Trustees mention the Jacobs' counterclaims. In their prayer for relief, the Trustees do not specifically ask for the counterclaims to be dismissed but, along with the lien relief described above, the Trustees ask the court to "grant all other relief the Court deems just and proper." In their response to the present motion, the Jacobs' also do not mention their counterclaims, nor do they allege any facts that would support those claims as outlined above.
Although the merits of the counterclaims are logically intertwined with the merits of the Trustees' complaint which are being disposed of herein, the current record is incomplete to address the counterclaim. However, nothing in this memorandum and order should be construed to restrict the parties' moving at some subsequent time for the Court to do so on an expanded record.
Conclusion and Order
Judgment shall enter for the Plaintiff. The Jacobs' violated the Master Deed by attaching items to the building's exterior surface, drilling holes through the exterior surface, and placing a vegetable garden and dog graves within the common yard area behind their unit without first obtaining the Trustees' approval. The Trustees lawfully imposed a fine upon the Jacobs' for violating the Master Deed totaling $13,500. Pursuant to G.L. c. 183A, § 6, the Jacobs' are personally liable for this amount, and a lien exists upon the Jacobs' unit for the fines imposed, as well as the Trustees' costs of collection, including reasonable attorneys' fees and costs in the amount of $12,000. If the lien is not satisfied, the Jacobs condominium may be sold pursuant to G.L. c. 183A, § 6, and G.L. c. 254, §§ 5 and 5A, to satisfy it.
SO ORDERED.