In 1980, the Oyster River Condominium Trust (condominium), consisting of nine freestanding dwelling units with a common area (and a boathouse) on-approximately two and two-thirds acres in Chatham, was formed by subjecting the property to G. L. c. 183A (1992 ed.). The condominium’s master deed purported to authorize each unit owner, with the written approval of a majority of the trustees of the owners’ association, “to construct additions to his Unit.” For almost three years thereafter, the parties accepted this provision as lawfully authorizing the condominium trustees to grant to a unit owner the right to construct an addition that extended into the common area of the condominium. Several such additions were purportedly authorized and were built in the years immediately after the creation of the condominium. As we shall explain and the trial judge ruled, this purported authorization was contrary to the mandate of G. L. c. 183A that any such alteration of the common area must be approved by all the unit owners, expressed in an amended master deed.
The plaintiffs are the respective owners of two of the nine units in the condominium. The Strausses acquired their interest in unit four in 1982. The Maloneys acquired their interest in unit seven in 1981 from Charles R. Chrystie, who was the creator of the condominium and is the owner of unit
The case came to trial in September, 1986, and finally in October, 1992, a decision was released and a judgment, later slightly modified, was entered. The judge ruled that the expansion of certain units into the common arеas had been unlawful but declined to order their removal. He further concluded that landscaping improvements in the common area were not encroachments. He ordered that Chrystie remove an addition that he had made, enjoined the Ritchies from expanding their unit unless they obtained the consent of all unit owners, and ordered the Maloneys to remove an outdoor shower enclosure that encroached on the cоmmon area. The judge further ordered that the master deed and other documents be amended to reflect the dimensions of all units as they will exist after the encroachments ordered to be removed have been removed and “that the percentage interest which each unit owner has in the common areas be recalculated to reflect any proportionate change in the value of the units due to expansiоns,” the cost to be borne by the unit owners whose expansions were allowed to remain. Only the
The plaintiffs argue that the judge had no alternative but to order the removal of unit expansions into the common area, once he decided that they were unlawful. We shall discuss this issue, and recite the special circumstances that prompted the judge to rule as he did, after we have considered certain other matters.
1. The defendant unit owners do not object to the plaintiffs bringing an action directly against them concerning their use of part of the common area owned by the condominium. Of course, the plaintiffs, who are not the owners of the common area, have no basis for seeking damages for trespass. Only the trusteеs have the right to conduct litigation concerning “common areas and facilities.” G. L. c. 183A, § 10
(b)
(4) (1992 ed.). See
Cigal
v.
Leader Dev. Corp.,
2. The trial judge ruled correctly that the expansions into the common area altered the percentage of the undivided interest which each owner had in the common area and that the expansions wеre unlawful because they were not approved unanimously by the owners.
4
Section 5
(b)
of G. L. c.
The defendants argue that the developer retained an interest that was not made subject to the condominium statute, namely, the right to grant easements to unit owners to expаnd their units into the common area, and that he transferred that interest to the condominium trustees. We acknowledge that a developer may retain a property interest by excluding it from the interest subjected to the condominium statute. See
Beaconsfield Towne House Condominium Trust
v.
Zussman,
3. The judge did not err in ruling that certain landscaping, including the construction of parking spaces, undertaken by individual unit owners in the common area need not be removed. The judge concluded correctly- that these improvements in the common area, which he found made it more attractive, were not encroachments and that no unit owner was denied access to the improved areas. There is no finding or claim that the improvements did not have the approval of the condominium trustees, to whom the declaration of trust assigns the duty of upkeep, maintenance, and improvement of common areas. The trustees are responsible for the enforcement of rights and obligations in the common area. There has been no showing that they have been remiss in that responsibility insofar as landscaping is concerned.
4. The judge’s order that the Maloneys “remove the shower enclosure which encroaches on the common areas” involves a minor matter but raises an interesting quеstion. 6 The master deed states that nothing in it prohibits a unit owner from installing a shower on the side of the unit with a privacy fence or screen. The judge in effect treated the shower’s intrusion into the common area as the same as the unlawful unit expansions into the common area and thus ordered the shower removed. We disagree with that order.
The grant of the right to each unit owner to make a specific, minor accessory use of the аbutting common area is certainly different in degree from the unrestricted grant of a roving authority to permit unspecified expansion of units into
5. The plaintiffs object to the judge’s order that the percentage interest of each unit owner in the common area be recalculated to reflect any proportionate change in the value of the units because of expansions. The judge gave no reason for this order, but in turn the plaintiffs give no explanation as to why they are harmed by the- proposed change. 8 Because the master deed must be amended to reflect the additions that need not be removed, it was within the judge’s discretion, in devising equitable relief for the difficulties he found, also to order a new beginning for the calculation of the unit owner’s proportionate interests. The change will facilitate the operation of G. L. c. 183A, and reflection of the “as built” circumstances approved by the judge should aid in making the units marketable.
6. We turn finally to the plaintiffs’ argument that the judge erred in refusing to order the removal of certain additions that extended into the common area. The judge based his conclusion on the specific circumstances of this case, considering all the equities and acting in the exercise of his discretion. He concluded that the removal of certain additions wоuld be oppressive and inequitable, in part, because those
We shall set forth the judge’s findings concerning the various additions that he did not order to be removed: substantial additions made by the Masts, the Narayanamurtis, the O’Connells, the Burlingames (аll of whom are defendants), and an extension of their deck by the Strausses (who are plaintiffs). The judge found that each of these unit owners, except the Burlingames, 9 received from the trustees of the condominium trust a certificate authorizing the expansion of the unit into the common area. None of these unit owners obtained the consent of all the unit owners to expand into the common area.
The Masts, believing that they had the neсessary approval, built their addition without objection in early 1982, before any question was raised about the validity of the trustees’ approval of additions. The Burlingames expanded their unit in early 1983, in similar circumstances. At the owners’ annual meeting in August, 1982, Mr. Burlingame had told the unit owners of their plans for expansion, and no one objected. The Maloneys in fact encouraged the Burlingames to expand their unit, and neither the Maloneys nor the Strausses objected when the construction was completed in the summer of 1983.
The Strausses expanded the deck on their unit in August, 1983. The judge concluded that the Strausses acted in good faith believing that they had the necessary approval. They also had Maloney’s approval. When the construction was almost completed, however, the Strausses learned from their counsel that there might be a problem with the way expansions were being handlеd in the condominium.
On October 10, Mr. Narayanamurti and Mr. Strauss met to discuss changes in the Narayanamurtis’ plans for expansion, and Narayanamurti agreed to make the changes Strauss wanted. Strauss shook hands with Narayanamurti and said, “I’m happy. This is great.” Narayanamurti believed that he had Strauss’s approval of his expansion. Malоney also knew that the Narayanamurtis planned an expansion, but he did not object. This construction was completed by May, 1984.
The O’Connells’ construction was undertaken in early 1984. In late November, 1983, Maloney had told Mr. O’Connell that he supported the O’Connells’ plan to expand and knew that a majority of the trustees had approved the O’Connells’ plans. In January, 1984, Maloney again told O’Connell that he supported the O’Connells’ expansion plans. O’Connell wrote to Maloney on January 11, 1984, stating that he was going ahead with his expansion plans, which included the removal of the O’Connells’ building from the condominium grounds. In reply, Maloney approved the removal but declined to express an opinion on whether he
In May, 1984, the plaintiffs saw the Narayanamurtis’ and the O’Connells’ new construction. The plaintiffs retained counsel, and in October, 1984, this action was commenced. In his memorandum of decision, the trial judge recognized that the usual remedy for even an innocent encroachment on the land of another is a mandatory injunction compelling the removal of the encroaching structure, citing
Peters
v.
Archambault,
This case involves exceptional circumstances that justify the judge’s decision to deny injunctive relief. This is not the typical case of A in good faith mistakenly building on B’s land. Here the “rules of the game” were prescribed by the master deed. Every one of the unit owners involved in this dispute purchased a unit in the condominium believing that each unit owner had the right to expand the unit into the common area with the approval of a mаjority of the condominium trustees.
14
Everyone knows that it is wrong to build a house on the land of another without permission. Not everyone knows that it is wrong to expand a condominium unit into the common area when the master deed says it may be done with the permission of the condominium trustees. The encroaching unit owners were not only innocent wrongdoers but they were also misled by circumstances created by the developer and the original trusteеs. In this sense, representatives of the interests encroached upon invited the intrusions. Moreover, the unlawful intrusions were not into the plaintiffs’ land but were rather into the common area. The plain
Two unit owners (the Masts and the Burlingames) were allowed to expand without objection. Even when the lawfulness of the practice came into question and the plaintiffs knew that the Narayanamurtis and the O’Connells were planning expansions, they still did not object. The plaintiffs encouraged O’Connell to proceed. Strauss led Narayanamurti to believe that he could proceed. Here the plaintiffs knew of good faith plans to intrude into the common area, and yet in each case they permitted substantial construction to be completed bеfore they announced their opposition and brought suit. They were not entitled to an injunction ordering the removal of the expansions that the judge allowed to remain.
7. The judgment, as modified by the order of March 9, 1993, is to be amended by the deletion of the order that the Maloneys remove their shower enclosure and, as so amended, is affirmed.
So ordered.
Notes
The only defendants who have filed a brief here are the condominium trust, the condominium trustees, the Burlingаmes, the Narayanamurtis, and the O’Connells.
Strictly we need not decide whether the expansions into the common area whose removal the judge declined to order were lawful because, even
The defendants cite no authority for the right to retain and transfer the interest they seek to identify.
The plaintiffs’ brief states that the four foot by four foot shower stall was installed in 1991 and that the Maloneys did not seek or obtain approval from the unit owners.
Another approach is to view the unit granted to each owner as having a right to construct a shower as part of the unit. The defendants have not argued that the trustees’ consent to the design of the shower stall was not given as required by the master deed.
The trust instrument of the owners’ association states that common expenses are shared equally by each unit and not proportionately to ownership interests in the common area. But see G. L. c. 183A, § 6 (a) (1992 ed.), stating that “common expenses shall be charged to [ ] the unit owners according to their respective percentages of the undivided interest in the common areas and facilities.”
The defendants’ brief refers to an exhibit not presented in the appendix or a supplemental appendix which, it is said, is a certificate of authorization given to the Burlingames.
“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 rеmoval is substantial in comparison to any injury suffered by the owner of the lot upon which the encroachment has taken place.”
Peters
v.
Archambault,
“There have been exceptional cases, however, as where the unlawful encroachment has been made innocently, and the cost of removal by the defendant would be greatly disproportionate to the injury to the plaintiff from its continuation, or where the substantial rights of the owner may be protected without recourse to an injunction, or where an injunction would be oppressive and inequitable, where courts of equity have refused to grant the injunction and left the plaintiff to his remedy of damages.
Lynch
v.
Union Inst. for Sav.,
The plaintiffs have made no claim for the'award of monetary damages, if injunctive relief is denied. Any such award, presumably based on at least the fair market value of the common areas appropriated to the use of particular unit owners, would be payable to the owners’ association, the trust, and not to the plaintiffs.
The findings indicate that an ordered removal of the expansions would result in varying financial losses, but they do not suggest that the expansions were trivial in their impact. The Masts’ expansion extended beyond the footprint of the original unit into the common area by approximately 120 square feet. The Burlingames’ addition was approximately 200 square feet larger than the footprint of their original unit, plus an increase of approximately 216 square feet in the size of their deck. The O’Connells’ completely new construction added about 1,000 square feet of living space on two levels and 100 square feet of deсk, an undefined portion of which was outside the footprint of the original unit. The Narayanamurtis added approximately 1,000 square feet of living space, 500 square feet of basement, and an enlarged deck, but the judge made no finding of the square footage of the common area used in the process.
No argument is made that the pertinent language in the master deed should be read to authorize additions vertically but not additions extending outside a unit’s footings as they existed at the inception of the condominium.