Commonwealth of Massachusetts
Appeals Court
Bristol County 2002 Sitting
No. 2001-P-1525
_________________________________________
Stella Xifaras and Susan Xifaras, Trustees of Pond Meadow Condominium Trust
v.
Louis Andrade, Individually and as Trustee of Atlantic Manor Realty Trust
__________________________________________
On Appeal From A Judgment Of The
Superior Court Of Bristol County
__________________________________________
Brief For The Plaintiffs/Appellants
____________________________________________
Anthony C. Savastano
B.B.O. # 548788
The Joseph Arthur Beauvais House
404 County Street
New Bedford, MA 02740-4936
(508) 992-7000
May 2002
Table of Authorities
A. Cases
B. Other Authorities
Issues Presented
Statement of the Case
Statement of Facts
Argument
I. Having Found That Defendant Andrade Unlawfully
And Wrongfully Incorporated Portions Of The
Common Area Into His Condominium Unit, The
Judge Erred In Refusing To Order Him To Remove
The Encroaching Structure And Restore The
Common Area
A. Andrade Did Not Act In Good Faith
B. The Encroachment Was Not Made Innocently
C. The Encroachment Was Not Trivial, Nor
Would The Cost Of Removal Be Onerous
D. The Substantial Rights Of The Other Unit
Owners Could Not Be Protected Without
Recourse To An Injunction
E. Judge Volterra Should Not Have Considered The
Trustees' Delay In Seeking An Injunction Where
He Excluded Evidence That Would Have Explained
The Delay, And Where That Evidence, Which
Included Andrade's Own Actions, Would Have
Excused The Trustees' Failure To Act
II. Judge Volterra Properly Found That Andrade
Never Acquired Any Interest Or Exclusive Right
In Either The Basement Area Under Unit 1 Or The
Portico Area And That His Conduct In Incorporating
Those Areas Into His Condominium Unit Was
Unlawful
III. Conclusion
Addendum
1. Whether, having found that Defendant Andrade unlawfully and wrongfully incorporated portions of the common area into his condominium unit, the judge erred in refusing to order him to remove the encroaching structure and restore the common area.
2. Whether the trial judge properly found that Defendant Andrade acted unlawfully in expanding his condominium unit onto common areas.
On February 7, 1998, the plaintiffs Stella Xifaras and Susan Xifaras, as Trustees of the Pond Meadow Condominium Trust, filed a civil action in the Bristol Superior Court against the defendant Louis Andrade, both individually and as Trustee of the Atlantic Manor Realty Trust. That complaint raised claims of conversion (Count 1) breach of contract (Count 2), trespass (Count 3), violation of G.L. c. 183A (Count 4) and sought declaratory judgment (Count 5). Along with the complaint, the plaintiffs filed a motion for a temporary restraining order, a motion for a preliminary injunction, and various materials in support of those motions. The motion for a preliminary injunction was allowed by Sikora, J., on March 3, 1998. [R. App. 1-2, 12-20].
The defendant filed an answer and defenses on March 23, 1998. [R. App. 2, 21-25]. Prior to trial, the parties filed, and the court considered, a number of motions and pleadings not relevant to this appeal. [R. App. 2-6].
On July 15, 1999, the plaintiff filed a motion for partial summary judgment, and the defendant filed a cross-motion for summary judgment. Both motions were denied on August 24, 1999. Both parties filed motions to reconsider. The Honorable Daniel Toomey denied the motions on October 6 and 7, 1999. [R. App. 3-4, 26-45].
On May 3, 2000, an order issued (Volterra, J.) defaulting the defendant for failing to appear at a pretrial conference. On June 8, 2000, the defendant filed a motion to set aside entry of default. Judge Volterra denied that motion on June 22, 2000, noting that nothing is alleged by the defendant that there exist meritorious defenses or counterclaims. The defendant filed a motion for reconsideration on July 11, 2000. Judge Volterra denied the motion on July 18, 2000. On August 8, 2000, the defendant filed an emergency motion to stay entry of default judgment. After an ex parte hearing, the matter was scheduled for further hearing on August 18, 2000. The plaintiff filed a motion for default judgment on August 11, 2000. Judge Volterra ultimately vacated the default. A jury-waived trial commenced on August 28, 2000. [R. App. 5-6].
On October 17, 2000, Judge Volterra issued findings of fact, rulings of law and order for judgment. He concluded that the defendant's encroachment into the basement area under Units 1 and 4 was unlawful. He issued a permanent injunction and ordered that the area be restored to its original state. He further found that the defendant's annexation of the portico area into his unit was unlawful but declined to order the removal of the encroaching structure. He ordered that the master deed and other condominium documents be amended to reflect the incorporation of the portico into the unit and further ordered that the defendant pay the costs of making these changes. [R. App. 6-7, 202-221].
Judgment issued on October 23, 2000. On October 26, 2000, the defendant filed a motion to amend, alter or clarify judgment and order; a motion for a new trial; and a motion for the court to act on request for findings of fact or rulings of law. On November 2, 2000, the plaintiff filed a motion to amend the findings, supplement them, and/or change the order and judgment pursuant to Mass. R. Civ. P. 52. Judge Volterra denied all of the motions on June 4, 2001. [R. App. 7, 9, 222-236].
The defendant filed a notice of appeal, and the plaintiffs filed a notice of cross-appeal, on July 3, 2001. The plaintiffs filed an amended notice of appeal on July 13, 2001. [R. App. 9-10, 237-240].
The case was entered on the docket of this court in October of 2001.
For purposes of this appeal, the appellants will adopt the factual findings set forth in the trial judge's Findings of Fact, Rulings of Law and Order for Judgment issued in this matter. Below, the appellants have reproduced in its entirety the Findings of Fact section of that document, with the exception of the final paragraph, which contains conclusions of law with which the appellants do not entirely agree:
The Pond Meadow Condominium is located on a plot of land that overlooks Westport harbor and its approaches. It is located in one of the most scenic locations along the Massachusetts South Coast- a geographic area of uncommon beauty.[3]
In 1994, Stella Xifaras and Barbara Xifaras filed a lawsuit against Andrade and Emile E. Morad, Esquire (“Morad”) in Bristol County Superior Court, Civil Action No. C94-653 (“Suit 1”). In Suit 1, Stella alleged, in part, that Morad illegally sold Units 2 and 5 of the condominiums to Andrade.
Andrade filed a counterclaim in a Suit 1 against Stella seeking, in part, “to grant Andrade specific performance of the agreement of Stella to modify and amend the Master Deed of Pond Meadow Condominium to incorporate the basement level area immediately beneath Unit #1 and the area within the limits of the portico[4] on the veranda on the southern side of the mansion into Unit #1. The trial of Suit 1 took place before this court (Hely, J.). On August 7, 1996, Justice Hely wrote a 24 page decision, and on November 1, 1996, he issued an Order and Partial Judgment in Suit 1. As part of his rulings, Justice Hely overturned the sale of Units 2 and 5 to Andrade. Justice Hely's Order stated in pertinent part:
Stella Xifaras and Barbara Xifaras, as owners of Unit Nos. 2, 5 and 6 and as the former owners of Unit No. 4 in the Pond Meadow Condominium are deemed to have exercised all their past and future voting rights as a unit owners in favor of the transfer to Unit No. 1 of the Pond Meadow Condominium of all rights to the exclusive use of the basement beneath the first level perimeter of Unit No. 1 and the exclusive use of the porch area directly abutting the southerly side door of Unit 1 beneath the portico, including the right to enclose and to maintain said area as it is presently enclosed.
Andrade misinterpreted this Order to mean that he is the exclusive owner or has exclusive use of the basement beneath the first level perimeter of Unit 1 (“Unit 1 basement area”) and of the porch area directly abutting the southerly side and egress to door of Unit 1 beneath the portico. I find that the portico is not a “landing“ as referenced in the Master Deed; rather, the portico is a common area pursuant to the Master Deed. The basement, including the Unit 1 basement area, is a common area pursuant to the Master Deed.
In 1993, Andrade enclosed the portico making it connect with Unit 1 and excluding access by other unit owners. Andrade also removed many walls and structures in the Unit 1 basement area as well as a portion of the Unit 4 basement area in his mistaken and unlawful efforts at annexing the common area.
Stella filed, in Suit 1, a Motion of Plaintiff, Stella Xifaras, Individually and as Trustee of Pond Meadow Condominium Trust, to Amend Order for Judgment. This motion sought the court's clarification regarding the rights and duties of the parties pertaining to the common areas. In response to the motion, Justice Hely issued an Order Regarding Louis Andrade and Basement of Pond Meadow Condominium, dated July 23, 1997:
This Order and Partial Judgment does not purport to convey or to order conveyance to Louis Andrade any title or interest in any basement area at the Pond Meadow Condominium. This Order and Partial Judgment does not affect the interests of the Condominium or of any unit owner regarding the said basement, except to the extent that it limits the past and future voting rights of Stella Xifaras and Barbara Xifaras.
Despite the Amended Order, Andrade continued to work on the Unit 1 basement area. In an effort to further clarify Justice Hely's order, the plaintiffs submitted a motion for further clarification of the Amended Order. On May 20, 1998, Justice Hely issued his Memorandum and Order Correcting Partial Judgment Regarding Condominium Portico, in which he expressly ruled that his Amended Order also applied to the portico and not just the basement area.
On January 30, 1998, the building inspector from the Town of Westport sent a correspondence to Justice Hely asking for further clarification regarding the right of the parties in regard to the common areas. In response to this request, Justice Hely forwarded a letter to the Westport building inspector stating that the Order and Amended Order did not transfer any specific rights regarding the Unit 1 basement area to Andrade.
I find that Justice Hely's order simply exercised certain voting rights of Stella and Barbara as unit owners. The correspondence from the judge to the building inspector expressly states, “This does not mean that the court ordered the transfer of any aspect of the basement rights to Mr. Andrade.” I infer that Andrade learned of or had knowledge of the judge's position.
Notwithstanding the judge's rulings, Andrade continued to perform work on the Unit 1 basement area. His most recent work included cutting a hole in the ceiling of the Unit 1 basement area to begin the installation of a spiral staircase, cutting and exposing electrical wire, removing antique items without regard to their preservation, clogging interior drains with debris, causing drains to back up, and destroying a working bathroom located under Units 1 and 4.
Andrade claims a vote was taken on May 12, 1997, to grant him “exclusive use“ of the portico and Unit 1 basement area.[5] I find that no vote was taken on May 12, 1997, to grant Andrade “exclusive use“ of these areas. I make this finding as the evidence clearly demonstrates that not all of the unit owners affirmatively cast votes in favor of the proposition as alleged by Andrade.
The Master Deed requires that:
No instrument of amendment which alters the percentage of the undivided interest to which any Unit is entitled as set forth in Exhibit C shall be of any force or effect unless the same has been signed by the owners of all the Units and said instrument is recorded as an Amended Master Deed.
No instrument or amendment granting Andrade ownership or exclusive use of the portico or Unit 1 basement area has ever been executed, as no instrument or amendment granting Andrade ownership or exclusive use of the portico or Unit 1 basement area has ever been recorded as an Amended Master Deed.
For example, Andrade never obtained the written consent of Gil Peixoto, or the written consent of Janice Peixoto. He never obtained the written consent of Joanna Xifaras. He never obtained the written consent of Susan Xifaras.[6] Finally, Andrade never obtained the written consent of Armand Fernandes, Jr.[7]
Furthermore, section 14.4(4) of the Master Deed requires that all first mortgagees of the units give prior written approval to “sell or transfer” common areas. Andrade never obtained the written consent of all first mortgagees of all the units.[8] In fact, he never obtained the written consent of any mortgagees of any units for his planned encroachment and actual invasion of the common area.
Additionally, section 10 of the Master Deed requires that any amendment to the Master Deed be done by an instrument in writing, signed and acknowledged by a majority of the Trustees of Pond Meadow Condominium Trust. The Master Deed also requires that any amendment be duly recorded with the Bristol County (S.D.) Registry of Deeds. Again, Andrade never obtained the required approval of the Trustees, and he never obtained a written instrument signed and acknowledged by a majority of the Trustees that amended the Master Deed. No amendment to the Master Deed granting Andrade any interest in the portico or Unit 1 basement area has ever been recorded in the Bristol County (S.D.) Registry of Deeds. Andrade never made any demand upon the Trustees to execute an amendment to the Master Deed.
Moreover, the Master Deed does not provide for the right to create an exclusive use easement in common areas. The Master Deed does not designate any areas as “limited common areas.“ Indeed the Master Deed states:
In order to preserve the architectural integrity of the buildings and the units without modification, and without limiting the generality thereof, no patio, balcony, awning, screen, antenna, sign, banner or other device, and no exterior change, addition, structure, projection, decoration or other feature shall be erected or placed upon or attached to any Unit or any part thereof, no addition to or change or replacement of any exterior light, door, door knocker or other exterior hardware shall be made, and no painting, attaching or decalcomania or other decoration shall be done on and no sign be placed on any exterior part or surface of any Unit or on the interior surface of any window without the written permission of the Trustees of Pond Meadow Condominium Trust upon such terms and conditions, if any, as they, in their reasonable discretion, shall determine.
Thus, by enclosing the portico, Andrade caused an exterior change, addition or structure to be erected or placed upon or attached to Unit 1. Andrade did not obtain written permission of the Trustees prior to enclosing the portico.
The variance granted by the Town of Westport for the Pond Meadow Condominium prevents exterior alterations to the building and was recorded in the Bristol County (S.D.) Registry of Deeds in Book 1825, Page 525. The Master Deed was created “subject to and together with the benefit of a zoning variance dated June 29, 1981, and recorded in said Registry of Deeds in Book 1825, Page 525.” Andrade, as Trustee of Atlantic Manor Realty Trust, took title to Unit 1 subject to the provisions of the Master Deed, Trust and zoning variance.
Andrade's conduct in attempting to take control of the portico and Unit 1 basement area dates back to 1993 when he began to incorporate the common areas into his unit. Andrade conveyed interest in Unit 1 to Citizens-Union Savings Bank on May 11, 1998, by granting a mortgage on Unit 1. In doing so, Andrade did not include in the description of his property in the interest in the portico and Unit 1 basement area.
Justice Hely's Order and subsequent amendments in Suit 1 resulted in the casting of votes of Stella Xifaras and Barbara Xifaras, as owners of Units 2, 5 and 6 and as former owners of Unit 4, to transfer to Andrade a fee simple interest in the portico and Unit 1 basement area. The Order and subsequent amendments in Suit 1 did not, however, cause votes of Stella Xifaras and Barbara Xifaras, as owners of Units 2, 5 and 6 and as former owners of Unit 4, to grant an easement for the exclusive use of the portico and Unit 1 basement area. Nor did the order and subsequent amendments in Suit 1 cause votes of Stella Xifaras and Barbara Xifaras to designate the portico and Unit 1 basement area as limited common areas.
Accordingly, I find that Andrade's actions in enclosing the Unit 1 basement area prevented all other unit owners from the exiting the west side basement door, thereby interfering in the rights of owners and tenants. Andrade's actions in inclosing the Unit 1 basement area also interfered with other owners' utilities in that area.
[R. App. 203-209].
I. Having Found That Defendant Andrade Unlawfully And Wrongfully Incorporated Portions Of The Common Area Into His Condominium Unit, The Judge Erred In Refusing To Order Him To Remove The Encroaching Structure And Restore The Common Area
As discussed elsewhere in this brief, the judge properly found that Andrade had no legal right to incorporate the portico and basement area into his condominium unit. The judge found, and the record supports, that Andrade failed to obtain the necessary written consent of all of the unit owners, he failed to obtain the permission of the holders of first mortgages on the other units, he failed to obtain the written approval of the trustees, he failed to secure the necessary amendments to the master deed, and the changes to the portico did not comport with the zoning restrictions under which the project was built. See G.L. c. 183A. The judge correctly ordered that he restore the basement area to its original state. However, relying on principles set forth in Strauss v. Oyster River Condominium Trust, 417 Mass. 442 (1994), the court declined to order Andrade to remove the encroaching structure and restore the portico. The judge erred in refusing to order the restoration of the portico, which effectively approved a “physical occupation[] amounting to a transfer of a traditional estate in [common areas of the condominium].” Goulding v. Cook, 422 Mass. 276, 277-278 (1996). Moreover, to the extent that the judge relied on events taking place prior to 1997, his findings are flawed, since he refused to admit evidence of events taking place prior to that time. The judge's order should be reversed, and Andrade should be directed to remove the encroaching structures. In the alternative, the case should be remanded for a further hearing where evidence of events taking place prior to 1997 should be considered.
"In Massachusetts a landowner is ordinarily entitled to mandatory equitable relief to compel removal of a structure significantly encroaching on his land, even though the encroachment was unintentional or negligent and the cost of removal is substantial in comparison to any injury suffered[.]" Peters v. Archambault, 361 Mass. 91, 92 (1972), quoted in Strauss v. Oyster River Condominium Trust, 417 Mass. at 451 n.10. Only in rare and exceptional circumstances may a judge deny such equitable relief. Strauss v. Oyster River Condominium Trust, 417 Mass. at 451-452. In determining whether such rare and exceptional circumstances have been shown, the court should apply a fact-specific analysis, which ordinarily focuses on (1) whether the owner of the encroaching structure acted in good faith; (2) whether the unlawful encroachment was made innocently; (3) whether the encroachment was trivial and the cost of removal would be onerous; and (4) whether the substantial rights of the owner may be protected without recourse to an injunction. See Goulding v. Cook, 422 Mass. at 277-278; Id. Here, Andrade failed to satisfy any of the above factors, nor do any other circumstances in the record justify allowing him to continue the encroachment.
A. Andrade Did Not Act In Good Faith
In determining not to exercise his equitable powers, Judge Volterra relied in part on an erroneous conclusion that “Andrade's encroachment was performed under a mistaken assumption that the conveyance he received from Barbara Xifaras (“Barbara”) and Stella Xifaras (“Stella”) for his condominium units permitted to his expansion into the portico and the basement beneath his unit.” [R. App. 210]. This conclusion was wrong as a matter of law for several reasons.
First, whatever representations may have been made or whatever his beliefs prior to his purchase of Unit 1, it was or certainly should have been clear that the master deed controlled his right to expand his unit. See Strauss v. Oyster River Condominium Trust, 417 Mass. at 452 (noting master deed prescribed "the rules of the game"); Viola v. Millbank II Associates, 44 Mass. App. Ct. 82, 87 (1997); McEneaney v. Chestnut Hill Realty Corp., 38 Mass. App. Ct. 573, 577 (1995). As noted above, the master deed provides specific procedures for altering the percentage of the undivided interest to which a unit owner is entitled and for making changes to the exterior of the building. Andrade clearly was aware of those provisions; prior to and for several years after his appropriation of the portico in 1993, he attempted without success to secure the necessary approvals. For example, prior to his purchase of the unit in 1993, he had his attorney prepare a document amending the master deed. That document had signature spaces for the other unit owners and trustees. [R. App. 233-235]. However, he was unable to obtain the necessary signatures, and the amendment was never executed. In view of his efforts, Andrade could not have believed, and in fact did not believe, that he had the right to expand onto the portico. Contrast Strauss v. Oyster River Condominium Trust, 417 Mass. at 451-452 (trustees issued written certificates authorizing expansion).
Second, although Andrade, as trustee of Atlantic Manor Realty Trust, entered into a purchase and sale agreement with Stellax, Inc. for the purchase of Unit 1, that agreement never became effective. Instead, in December 1992, Emile Morad, on behalf of Investment and Leasing Co., Inc. (“I&L”), foreclosed on Unit 1. [R. App. 134-135, 146]. Andrade ultimately purchased the unit from I&L. The promises allegedly made in the purchase and sale agreement with Stellax, Inc. were not effective.
Third, the deed that Andrade recorded after his purchase of Unit 1, as well as the subsequent mortgages taken out against Unit 1, do not include in their description the portico area. [R. App. 209]. This omission clearly demonstrates that Andrade did not believe he owned the portico.
Fourth, at trial, Andrade specifically admitted that he knew he did not own the portico. [R. App. 299 (Tr. 1, 58)]. Andrade's enclosure of the portico was not the result of a mistaken assumption made in good faith.
B. The Encroachment Was Not Made Innocently
If, as discussed above, Andrade encroached on the portico knowing that he lacked the necessary approval, such encroachment cannot be characterized as innocent.
Assuming somehow that he did not actually know that his encroachment was not authorized, he clearly should have known that incorporating the portico into his unit was unlawful. Even a cursory examination of the master deed and other condominium documents would have alerted Andrade to the fact that such encroachment was prohibited. Contrast Strauss v. Oyster River Condominium Trust, 417 Mass. at 452 (the master deed expressly authorized each unit owner to build out his or her unit onto common area, and each of the unit owners purchased in the reasonable belief that such expansion was both approved and encouraged). Especially where Andrade was represented by counsel in the transaction, the encroachment was by no means innocent.
C. The Encroachment Was Not Trivial, Nor Would The Cost Of Removal Be Onerous
In allowing the encroachment to remain, Judge Volterra appears to have concluded that the encroachment was trivial and the cost of removal was likely to be onerous. The judge was wrong on both counts.
His finding as to the trivial nature of the encroachment appears to have been based on his conclusion that owners of other units have not made extensive use of the portico. However, in his findings, the judge commented on the magnificent views from the veranda on the south side of the building. As Stella testified at trial, the portico is the only portion of the veranda covered by a roof. Consequently, if any of the unit owners wanted to enjoy the view while escaping either the weather or the sun, they would be prevented from doing so by the enclosure of the portico. Further, the enclosure of the portico blocks the view from the veranda of Westport Harbor and its entrance. [R. App. 347 (Tr. 1, 106)]. Compare Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15, 22-23 (1987) (Zoning Board of Appeals could properly find that proposed addition, which would interfere with the views or vistas of the surrounding property owners, would be substantially detrimental to the neighborhood and the town).
The enclosure of the portico also changes the character of the structure, which is an issue specifically addressed in the condominium documents. In fact, the master deed restricts any unapproved changes to the exterior of the structures, which includes things as minor as screens, banners, decorations, or window signs. The master deed provides a perfectly legitimate reason for imposing such restrictions- i.e., “[i]n order to preserve the architectural integrity of the buildings and the units”. [R. App. 68, 208]. Where the preservation of the appearance of the exterior of the building was important enough to address in the master deed, and where the changes made were fairly extensive-i.e., construction, as opposed to simply hanging a banner or installing a screen on a window-the judge erred in concluding that the enclosure of the portico was trivial. See Atwood v. Walter, 47 Mass. App. Ct. 508, 513 (1999) (restrictions on exterior materials and finishes intended to preserve the aesthetic qualities and values of development were of actual and substantial benefit to the other homeowners in subdivision and could be enforced).
Moreover, as noted above, the enclosure of the portico violated the zoning restrictions under which the project was built. It is unclear what effect this violation might have upon the complex as a whole. Perhaps the trustees will be required to remove the structure at some future point, perhaps the illegal expansion will affect the marketability of units in the complex, or perhaps it will affect the availability or extent of insurance coverage. Even if nothing is likely to happen in the immediate future, it is certainly possible that the unauthorized expansion of Andrade's unit will have some unanticipated ramifications in the future.
With regard to the removal of the encroachment onto the portico, the judge erred in concluding that the removal and restoration would be a substantial hardship to Andrade. Andrade's application for a building permit dated March 19, 1993 lists the cost to enclose the portico at $5,000. [R. App. 169-173]. Andrade specifically testified that all he did to enclose the portico was to install windows on the east and south sides and install French doors on the west side. [R. App. 289 (Tr. 1, 48)]. The cost of removing these items and restoring the portico would likely be minimal. Contrast Strauss v. Oyster River Condominium Trust, 417 Mass. at 452 n.13 (removal would be burdensome where addition to one unit consisted of 1,000 square feet of living space on two levels and 100 square feet of deck; an addition to a second unit added 1,000 square feet of living space, 500 square feet of basement, and an enlarged deck). Furthermore, the removal of the intrusion into the portico would not affect the marketability or habitability of the unit. The unit would simply be restored to its condition and configuration as of the time Andrade purchased it in 1993.
D. The Substantial Rights Of The Other Unit Owners Could Not Be Protected Without Recourse To An Injunction
In this case, nothing short of the removal of the offending structure would protect the rights of the other unit owners. Nothing in the judge's order purports to compensate other unit owners for the loss of use of the portico area or for the obstruction of the views caused by the encroachment. Moreover, no solution short of removing the offending structure would restore the unique character of the building or would bring it into compliance with the applicable zoning requirements. The judge should have ordered that the portico be restored to its original state.
E. Judge Volterra Should Not Have Considered The Trustees' Delay In Seeking An Injunction Where He Excluded Evidence That Would Have Explained The Delay, And Where That Evidence, Which Included Andrade's Own Actions, Would Have Excused The Trustees' Failure To Act
In declining to exercise his equitable powers, Judge Volterra relied in large part on his conclusion that the trustees failed to act “for nearly five years to enforce the provisions of the master deed, thus permitting Andrade to construct a substantial addition to his apartment that is now his dining room”. [R. App. 219]. However, at trial, the judge specifically excluded any facts regarding matters which were addressed in Suit No. 1 and limited the evidence to the vote that occurred in May of 1997 and events subsequent thereto. [R. App. 278-280, 287-288, 297-298, 301, 315-316, 440, 540-543, 550-553, 556-557 (Tr. 1, 37-39, 46-47, 56-57, 60, 74-75, 199; Tr. 2, 75-78, 85-88, 91-92)]. To the extent that the judge relied on the failure of the trustees to act, after excluding any evidence that would have explained such failure, his conclusion was fatally infirm. Moreover, had he considered the circumstances explaining the delay, including Andrade's own actions, Andrade clearly would have been precluded from relying on the trustees' failure to act.
Prior to 1993, Stella and Barbara were wrongfully ousted from participating in the management of the Pond Meadow Condominium Trust. Specifically, Morad illegally foreclosed upon all of the units. He then installed himself, Gil Peixoto, and Andrade as trustees of the trust. Stella and Barbara ultimately filed Lawsuit No. 1 to regain their rightful ownership of Units 2, 5 and 6. Judge Hely did not issue his Order and Partial Judgment in that lawsuit until October 31, 1996. Prior to that date, Stella had no right or authority to act in any manner on behalf of the trust. [R. App. 129, 134-139, 146-148].
After Judge Hely issued his Memorandum, but before he issued his Order and Partial Judgment, Andrade sued Stella and Barbara in the Probate Court seeking a declaration that Stella could not act as trustee. On a motion filed by Stella and Barbara, that action was consolidated with Lawsuit No. 1. Andrade then filed a third suit, this time in the Fall River session of the Superior Court seeking temporary and permanent orders restraining Stella from acting as trustee. Again, upon motion by Stella and Barbara, this action was consolidated with Suit No. 1. On August 6, 1997, Judge Hely dismissed the Probate Court and Fall River Superior Court actions and sanctioned Andrade. With their status as trustees now clear, Stella and Susan Xifaras filed the present action on February 28, 1998 seeking equitable relief from Andrade's illegal conversion of common areas.
Where Andrade and Morad effectively controlled the trust during the relevant time period, Andrade should not be permitted to benefit from the trustees' delay in acting against him. See Our Lady of the Sea Corp. v. Borges, 40 Mass. App. Ct. 484, 493 (1996) (litigant not permitted to benefit from his own wrongful conduct).
II. Judge Volterra Properly Found That Andrade Never Acquired Any Interest Or Exclusive Right In Either The Basement Area Under Unit 1 Or The Portico Area And That His Conduct In Incorporating Those Areas Into His Condominium Unit Was Unlawful
Andrade has filed a cross appeal in this matter. While it is not entirely clear what he intends to argue, or indeed what he can argue, it is absolutely clear that he never acquired any interest or exclusive right in either the basement area under Unit 1 or the portico area.
The judge properly found that at the time he appropriated these areas, he did not have the permission of all of the other unit owners, even if the votes of Stella and Barbara are counted in his favor. Strauss v. Oyster River Condominium Trust, 417 Mass. at 445-446. Further, the judge properly found that the vote that Andrade claims took place in May of 1997 never took place. The judge committed no error in concluding, for example, that Andrade failed to obtain the written permission of either Janice or Gil Peixoto, the owners of Unit 3. No such written documents were produced at trial, and none exist.
As noted above, written permission from all of the other unit owners was a required first step to acquiring the claimed interest. See G.L. c. 183A, §5(b). Where Andrade never obtained such permission, the analysis should end.
Even if Andrade had obtained the necessary votes, he still failed entirely to comply with the other requirements set forth in G.L. c. 183A, §5(a) and the master deed-i.e., securing the permission of the mortgagees and amending the master deed. See Id.
Andrade fares no better in attempting to argue for more limited right in the common areas he appropriated. He argued below that these areas should be treated as “limited common areas” as defined in G.L. c. 183A, §1. However, the amendment to that statute which first recognized the concept of “limited common areas” did not take effect until January of 1996, almost three years after his appropriation of the basement and portico. The judge correctly applied the pre-1996 version of the statute. Levy v. Reardon, 43 Mass. App. Ct. 431, 435 (1997). Even if the 1996 version applied, that section defines “limited common areas and facilities” as “a portion of the common areas and facilities allocated by the master deed or any amendment thereto for the exclusive use of one or more but not fewer than all of the units.” In this case, the judge properly concluded that the master deed did not allocate the Unit 1 basement area or the portico as limited common areas.
With regard to Andrade's claim that he is entitled to an exclusive use easement in the common areas, the right to create and easement by the owners or trustees of a condominium was not recognized by statute until a 1996 amendment to G.L. c. 183A, §5. Under the pre-1996 version of that section, the trustees had no express right to grant an easement. See Levy v. Reardon, 43 Mass. App. Ct. at 435 n.9. Nothing in the master deed can be construed as granting Andrade the right to create an exclusive use easement in common areas without the assent of all of the unit owners.
Assuming the later version of the statute applied, which gives the trustees the right to create easements, there is no evidence that the trustees ever agreed to grant Andrade an easement. Further, as Judge Volterra correctly found, Judge Hely cast votes of Stella and Barbara as individual unit owners. He did not cast their votes as trustees, nor did he order the trustees to take any action.
Finally, Judge Volterra properly construed the amended version of Section 5 to apply to easements for utility conduits and cabling, plumbing lines, and similar utilities. The easement provision of Section 5 did not contemplate erecting walls for the purpose of expanding a condominium unit into common areas.
Judge Volterra committed no error of law, nor did he abused his discretion in concluding that Andrade acted unlawfully in incorporating common areas into his unit.
III. Conclusion
Based on the authorities cited and the reasons aforesaid, the plaintiffs request that the judgment be affirmed insofar as it finds that Andrade's encroachment into the common areas was unlawful and improper, and reversed to the extent that the trial judge refused to order injunctive relief. Should there be any uncertainty as to the outcome based on the trustees' delay in seeking injunctive relief, the case should be remanded for further hearings at which evidence of events prior to 1997 should be considered.
Respectfully submitted,
Stella Xifaras
Susan Xifaras
By their attorney,
Anthony C. Savastano, Esq.
B.B.O. # 548788
The Joseph Arthur Beauvais House
404 County Street
New Bedford, MA 02740
(508) 992-7000
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