Flynn v. Parker
Flynn v. Parker
Opinion of the Court
The plaintiffs are the owners of unit 702 of the Flagship Wharf Condominium in Boston. They seek to renovate
Background. In determining whether summary judgment was appropriately granted, we review the parties’ submissions in the light most favorable to the losing party. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Despite the volume of the summary judgment record, the key facts are largely undisputed.
What the deeds say. In February, 2007, the plaintiffs purchased their unit, together with undivided interests in the building’s common elements, pursuant to a “condominium unit deed.” The unit deed referenced the condominium master deed (as amended), with an appropriate citation to the registry of deeds. The unit deed also specified that the unit that the plaintiffs were purchasing “is shown on the floor plans [floor plans] filed simultaneously with the [m]aster [d]eed and the [u]nit [p]lan for said [u]nit [unit plan],” again with specific indicators of where such plans could be found. The amended master deed stated
The master deed addressed what property the unit owners held individually, and what property they owned collectively with other unit owners as “common elements” (including two separate categories of common elements, “building common elements” and “residential common elements”).
Specifically excluded from common elements is “any matter which, under [sjection 5[.]A(I) hereof, is included within the description of the [Residential [u]nits.”
“includes all non-structural walls within the boundaries of*286 such [u]nit, the heat pump unit within and exclusively serving such unit and all utility lines, pipes, wires, conduits, facilities and services, all vents, ducts, and flues and all building services and equipment to the extent the foregoing are located within and exclusively serve such [Residential [ujnit and are not located in any portion of the [cjondominium contributing to the structure or support of the [bjuilding.”
With respect to interior walls, the master deed defines the boundaries of residential units as follows:
“Interior Building Walls Between Residential Units or Separating Residential Units from Residential or Building Common Elements: The plane of the surface facing such [ujnit of the wall studs nearest the [Residential [ujnit or the plane of the surface of the metal furring on the concrete/ masonry walls nearest the [Residential [ujnit.”
What the plans depict. As shown on both the floor plan and the individual unit plan, the two disputed walls are thick interior walls that emanate from, and are perpendicular to, the central spine of the building.
The plaintiffs’ proposed renovation. One of the walls separates the kitchen from the living room/dining room area (living area). The plaintiffs want to take down most of the upper portion of this wall (the kitchen/living area wall) in order to create what
The plaintiffs hired an expert who concluded that the two walls are not in fact structural (i.e., load bearing). The defendants did not counter that evidence in the summary judgment proceedings. In fact, one of the individual defendants acknowledged in his deposition that he has come to believe that the walls are not structural.
The kitchen/living area wall indisputably contains pipes and ducts, which the plaintiffs conceded below are themselves “common elements.” The plaintiffs plan to leave the pipes and ducts in place, but to enclose them inside columns (in this manner, the upper part of the wall will in effect be replaced by two columns). The second wall separates the kitchen from a foyer. The plaintiffs want to replace this wall (the foyer wall) with glass French doors. As confirmed through the plaintiffs’ having cut exploratory holes in the foyer wall, this wall does not currently contain any pipes, ducts, or other “central service equipment.” The defendants maintain that even though the wall is currently empty, reserving it for future potential common use still serves an important purpose: reserving space for adding pipes, ducts, or other common elements in the future.
Following lengthy and contentious discussions, the board indicated in writing that it would approve the plaintiffs’ plans. However, the board was willing to do so only on the condition that the plaintiffs acknowledged that the association owned the walls and agreed to the board’s reserving a right to have the owners reconstruct them at their expense for potential future common use.
The course of the litigation. After extensive discovery, the parties filed cross motions for summary judgment. Because the two walls were specifically shown as common elements on the
Discussion. “Ownership of a condominium unit is a hybrid form of interest in real estate, entitling the owner to both exclusive ownership and possession of his unit, . . . and ... an undivided interest [as tenant in common together with all the other unit owners] in the common areas . . . .” Berish v. Bornstein, 437 Mass. 252, 262 (2002), quoting from Noble v. Murphy, 34 Mass. App. Ct. 452, 455-456 (1993). Individual “condominium unit owners cede the management and control of the common areas to the organization of unit owners . . . .” Id. at 263. See Lallo v. Szabo, 75 Mass. App. Ct. 1, 4 (2009).
The governing statute, G. L. c. 183A, “contains a comprehensive scheme for defining and governing the common areas.” Id. at 5. Toward that end, the statute requires that master deeds describe the “common areas and facilities” at the condominium. See G. L. c. 183A, § 8(e). The statute defines that term as including certain kinds of items, but the list is qualified by the language “except as otherwise provided or stipulated in the
Given that the two walls are plainly depicted as “common elements” on the floor plan, they fit within the description of that term in section 6.A(xii) of the master deed (“such additional common areas and facilities as may ... be shown on the [condominium [p]lans as [c]ommon [elements”). Notwithstanding this, the plaintiffs protest that the heavy black shading on the plans is ambiguous. In support of this argument, they submitted an expert affidavit stating that architects sometimes shade entire walls merely for “graphic clarity,” and to avoid the “cluttering” that would be caused by showing individual pipes and similar elements inside the walls.
Our analysis is not done, however, because the walls nevertheless might fall within the language of section 6.A specifically excluding from the description of “building common elements . . . any matter which, under Section 5[.]A(I) hereof, is included within the description of the [Residential [ujnits.” The plaintiffs argue that the “empty” foyer wall fits wholly within this exclusion, because it lies completely within their unit, it is not structural, and it contains no individual common elements such as pipes. They concede that the pipes and ducts inside of the kitchen/living area wall are common elements, but they argue that only that portion of the wall in the immediate vicinity of them is subject to common ownership.
A closer examination of the text of the master deed reveals the shortcomings in the plaintiffs’ argument. The walls fit the textual description of a residential unit only if they lie “within the boundaries of such [ujnit.” Since the kitchen/living area wall separates the unit from building common elements (the
This interpretation is also consistent with the principle that master deeds are to be “interpreted in the light of the material circumstances and pertinent facts known to [the parties] at the time [the deed] was executed.” Commercial Wharf E. Condominium Assn. v. Waterfront Parking Corp., 407 Mass. at 131, quoting from Bessey v. Ollman, 242 Mass. at 91. The plaintiffs made no attempt to demonstrate that when the master deed was executed, its drafters knew that the two walls were nonstructural, or that the foyer wall was “empty.”
We do not mean to suggest that the association has a strong present interest in what the plaintiffs do with the two walls. In fact, to the extent that an interior wall is nonstructural, does not contain common utilities, and can be seen only from within a unit, the association’s interest in the walls would appear to be minimal. In this context, the board unsurprisingly indicated that it would approve the specific renovations that the plaintiffs proposed, as it has done with similar proposals in other units in the past.
We conclude by addressing one ancillary dispute. Pursuant to Mass.R.Civ.P. 54(e), as amended, 382 Mass. 829 (1981), the defendants requested an award of approximately $14,000 in deposition costs. The judge allowed that award through a simple endorsement on the defendants’ motion that “Costs shall be assessed.” Discretionary deposition costs can be awarded only if the judge makes an express finding that the depositions at issue were “reasonably necessary.” See Waldman v. American Honda Motor Co., 413 Mass. 320, 328 (1992).
So ordered.
For the reasons set forth infra, we vacate an ancillary postjudgment order regarding the awarding of costs and remand that matter for further consideration.
The subdivision of the common elements into these two categories is related to the fact that the condominium includes both commercial and residential units. The two categories are treated differently in a respect not relevant to the current dispute. Both parties have focused on whether the two walls are common elements at all, not into which category of common elements they may fall. We will do the same, touching on the distinction between the two categories only where it appears important to do so.
Under the terms of the master deed, whether areas shown simply as “common elements” are deemed to be building common elements or residential common elements depends on whether they fit within the description of residential common elements. The current dispute does not require us to discern that line. See note 5, supra.
Strictly speaking, this exclusion by its terms applies only to building common elements. However, in the definition of residential common elements, there are other suggestions that items intended to be part of the residential unit cannot be residential common elements.
Although the precise thickness of the walls does not appear to be established in the record before us, the plans show them as being significantly thicker than other interior walls.
The record reflects that the property manager raised this point in March, 2007, in what appears to be her first written response to the plaintiffs’ renovations plans. The defendants have not attempted to produce collateral evidence that the need to reserve space was the specific reason why the foyer wall was shown as a common element.
The defendants initially had sought summary judgment on all but two of the plaintiffs’ claims. The two claims left out of that motion were based on allegations that the defendants had breached an agreement they had reached with the plaintiffs to settle their dispute (the contract-related claims). Later, the defendants filed a second summary judgment motion seeking dismissal of the entire complaint. In their opening appellate brief, the plaintiffs focused entirely on the ownership question. In a footnote in their reply brief, the plaintiffs appear to make a passing suggestion that even if the judge correctly decided the ownership issue, she should not have dismissed the contract-related claims. Having not raised this contention in their opening brief, and without supporting it with argument that rises to the level of appellate argument required by Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), the plaintiffs have waived it. Travenol Labs., Inc. v. Zotal, Ltd., 394 Mass. 95, 97 (1985) (issue raised for first time in reply brief need not be considered).
The judge initially directed the entry of a judgment dismissing the plaintiffs’ first amended complaint in its entirety. After the defendants brought to her attention that she did not address the parties’ respective requests for a declaration regarding the ownership issues, the judge issued a second judgment that, although labeled an “amended judgment,” addressed only the declaratory relief issues. Thus, strictly speaking, there appear to be two final judgments (contrary to proper procedures, see Jones v. Boykan, 74 Mass. App. Ct. 213, 218 n.9 [2009]). The plaintiffs timely filed notices of appeal from each, which were docketed as a single appeal.
The list also includes “[a]ll other parts of the condominium necessary or convenient to its existence, maintenance and safety, or normally in common use.” G. L. c. 183A, § 1(8).
The plaintiffs highlight that their affiant worked for the architectural firm that actually prepared the plans. However, his averments go to architectural practices in general; he does not purport to state what the drafters of these plans specifically intended. We therefore need not decide how much, if any, value to place on such collateral proof of intent.
The plaintiffs also seek to place great significance on the fact that the drafters of the floor plan did not “certify” the boundaries of the common areas, and on the fact that c. 183 A does not require them to do so. The premise of this argument is not free from doubt. That is because the plaintiffs’ whole argument is that the walls are part of their unit and G. L. c. 183A, § 9, prior to its amendment in 2008 (see St. 2008, c. 13, § 1), did require that the “first deed of each unit” include plans that have affixed to them “the verified statement of a registered architect, registered professional engineer or registered land surveyor certifying that they . . . fully and accurately depict the layout of the unit. . . .” In any event, even apart from whether the certification at issue here addressed the limits of the unit, we discern no merit in the plaintiffs’ “no certification” argument.
To be sure, the individual unit plan does not include the legend. However, the unit deed references both the floor plans and the unit plans, and to the extent that the unit plan on its own is ambiguous, that ambiguity could have been resolved through the plaintiffs’ looking at the floor plan. See Tosney v. Chelmsford Village Condominium Assn. 397 Mass. 683, 687-688 (1986) (unit owners have constructive notice of documents recorded with the master deed). One of the plaintiffs conceded below that although he examined portions of the master deed that were provided to him before purchasing the unit, he was never given (and apparently never sought to locate) the floor plans.
For similar reasons, the provision in a separate section of the master deed generally allowing unit owners — without board approval — to remove “interior non-bearing walls lying wholly within” their units is also not determinative.
We do not rely on the principle that a plan incorporated into a master deed “prevails over the contrary language in the [m]aster [d]eed.” For that proposition, the motion judge cited a number of lower court opinions and Magoun v. Lapham, 21 Pick. 135, 138 (1838). Putting aside the question whether Magoun itself stands for such a proposition, we rely on the floor plan here not because it somehow trumps contrary language in the master deed, but instead because it provides the most powerful evidence of what the text of that deed intended.
To the contrary, one of the affidavits that the plaintiffs themselves submitted
Put differently, if at the time the master deed was created, the drafters of the relevant documents misidentified these walls as common elements (e.g., because of a mistaken understanding that they were structural), the discovery of such an error would not suddenly mean that ownership to the walls had passed to individual unit owners.
The plaintiffs highlight that the board had —■ prior to their application — allowed many other property owners to make similar renovations without insisting on the conditions relating to ownership of the walls. But there is no showing in the record before us that the ownership issues had come to the fore in those other proceedings, and those approvals do not by themselves resolve any underlying ownership issues there (the extent to which any such prior approvals may otherwise have affected the rights of the unit owners is not before us). While the board’s change in policy may demonstrate a new appreciation for ownership questions that had previously been overlooked, it
The defendants argue that the plaintiffs waived the reasonable necessity issue by not raising it below. We retrieved the plaintiffs’ full opposition to the defendants’ motion for costs on our own initiative. Although it is certainly true that the plaintiffs placed their primary focus elsewhere, they did argue that the defendants should not receive deposition costs on the grounds that the defendants had taken the position throughout the litigation that the issues could be resolved as matter of law. We therefore need not decide whether the requirement of a finding on reasonable necessity can be waived, although we do note that rule 54(e) on its face speaks in unqualified terms: “in no event shall costs be allowed unless the court finds the taking of the deposition was reasonably necessary.”
Reference
- Full Case Name
- Michael Flynn & another v. Michael Parker & others
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