Condo owner can’t claim common area by adverse possession

By: Eric T. Berkman July 9, 2021

The plot plan for the Bradford Acres Condominium Trust in Provincetown

Ruling in a case of first impression, a Land Court judge has rejected a claim by owners of a condominium unit that they obtained sole ownership of a portion of the condo’s common area by adverse possession. The plaintiffs owned one unit in a Provincetown condominium. Under the master deed, the condo’s seven units had exclusive use of their respective abutting porches, but the yards that extended beyond each porch were deemed common areas. Following their 2002 purchase, the plaintiffs landscaped a converted deck built by prior owners that extended beyond the porch into the common area, kept personal property on the deck, and made improvements to it, apparently doing so openly while excluding others. They also pulled up plantings by the trustees in the disputed common area. Opposing the plaintiffs’ claim that they acquired lone title to the disputed common area via adverse possession, the defendant condominium trustees argued that the Massachusetts condominium statute, G.L.c. 183A, does not provide for the expansion of a condo unit into a common area without unanimous agreement of all other members of the condominium. Judge Robert B. Foster agreed. “In Massachusetts … each owner holds a ‘proportional, undivided interest’ in the common areas, which cannot be modified absent consent of the other unit owners,” Foster wrote, granting the defendants’ motion for judgment on the pleadings. “Here, there is no such unanimous agreement among unit owners regarding the Disputed Area, and the Master Deed has not been amended. While, as [the plaintiffs note], G.L.c. 183A, §§ 5(a), (b), and (c) do not explicitly bar adverse possession, allowing adverse possession in the face of these statutory provisions would render the condominium statute meaningless.” 

The 18-page decision is Pisano, et al. v. Thunberg, et al., Lawyers Weekly No. 14-048-21 . 

Big implications

Boston attorney Austin S. O’Toole, who represented the defendant trustees, said the decision clarifies an issue previously unresolved in Massachusetts courts. “There is some case law that says a condominium association can make claim to adverse possession of neighboring property, but no court has ever decided whether or not an owner in a condominium association can make claim to adverse possession over common areas within the parameters of its own property,” he said. “Now the Land Court has found that you cannot, as a condominium owner, make a claim over a common area and call it an ‘exclusive use area’ or claim it in fee, even if you can demonstrate the adverse use, period.” The implications of the decision are huge, he added. 

“The democratic process at condominium properties is preserved. Allowing for claims of adverse possession over common areas would leave owners to effectively take for themselves autocratic control over other owners.”   — Austin S. O’Toole, Boston 

“The democratic process at condominium properties is preserved,” O’Toole said. “Allowing for such claims of adverse possession over common areas would leave owners to effectively take for themselves autocratic control over other owners.” O’Toole said he was also pleased by the judge’s refusal to dismiss counterclaims brought by his clients for trespass and waste against the common areas at issue, which he said leaves open the potential for recovery of damages. Michael W. Merrill, a condominium lawyer in Boston, said he has seen unit owners make claims over common areas numerous times, particularly over the past 10 years, as a defense to the condominium enforcing its documents or asserting its rights. He also said that had the ruling gone the other way, trustees and property managers would be forced to constantly watch each individual unit owner’s use of common areas for signs that they may be vulnerable to claims of adverse possession. “They would then have to give notice to unit owners that they are trespassers or in violation of condominium documents,” he said. “The problem is that people don’t do that kind of thing — look at other owners’ use of property from a legal standpoint to see if they may be losing certain common area rights.” Quincy condominium attorney Thomas O. Moriarty said the most interesting question arising from the case is whether a non-owner can adversely possess common areas of a condominium. 

“Reading these provisions together, their intent is to provide a scheme of common ownership of common areas that is antithetical to adverse possession by one of the unit owners.”   — Judge Robert B. Foster 

Though certain parts of the judge’s rationale would not apply to a non-owner, provisions of G.L.c. 183A, §5(b)(1), that prohibit alteration of percentage interest without consent of the unit owners, and language in §5(c) prohibiting division of the common areas, would certainly be implicated by a non-owner’s claim, Moriarty said. “Applying the statutory language as the Land Court has in this case, there would be no more reason to allow a percentage interest change or a division of the common area as a consequence of adverse possession by a stranger than there would by another unit owner,” Moriarty said. “In that regard, the consequence of this decision may be that the common area land of a condominium in Massachusetts cannot be adversely possessed in any circumstance — and that is not a concept that has been widely recognized by practitioners.” The plaintiffs’ attorneys, Boston’s Frank T. Earle III and Ira H. Grolman, did not respond to requests for comment. 

Disputed ground

The condominium, located at 4 Bradford Acres Road in Provincetown, was established by master deed on Aug. 23, 1977. The Bradford Acres Condominium Trust was established the same day. The master deed provided for seven units, lettered “A” through “G,” each with “exclusive use” of its respective abutting porch. It also established that the approximately 16-by-16 foot yards extending beyond each of the porches were common areas. Plaintiffs Charles Pisano and George Nader purchased Unit C on Sept. 29, 2002. At the time of the purchase, the prior owners apparently told them a converted deck added to the porch extended into the common area and had done so for at least 10 years.