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 .
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.
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.
Could owners of a condo unit obtain sole ownership of a portion of the condominium’s common area by adverse possession?
No (Land Court)
Frank T. Earle III and Ira H. Grolman, of Grolman LLP, Boston (plaintiffs)
Austin S. O’Toole of Boston (defense)
Pisano, et al. v. Thunberg, et al. THE ISSUE: Could owners of a condo unit obtain sole ownership of a portion of the condominium’s common area by adverse possession? DECISION: No (Land Court) LAWYERS: Frank T. Earle III and Ira H. Grolman, of Grolman LLP, Boston (plaintiffs)
Austin S. O’Toole of Boston (defense) In the years following their purchase, the plaintiffs landscaped the deck with flower gardens and planters and kept personal property on the deck, including a storage cabinet, buoys, netting, flags, lounge chairs, tables and umbrellas, all with the apparent knowledge of other unit owners. Meanwhile, the plaintiffs extended their use and enjoyment of the yard in other ways not permitted by the master deed and trust, including their unauthorized removal of plantings made by trustees, extending their use of common area storage beyond what was permitted, and maintaining a shower and refrigerator-like apparatus on the perimeter of the 16-by-16 area of the property. On Aug. 30, 2018, the plaintiffs filed a complaint in Land Court against the condominium trustees asserting that they had obtained ownership of the common area in dispute by adverse possession. The trustees filed a counterclaim alleging trespass, waste and unlawful encroachment. They also moved for judgment on the pleadings, asserting that condominium unit owners could not obtain title to common areas by adverse possession as a matter of law. At the same time, the plaintiffs moved for summary judgment on the counterclaims.
Foster found that a condo unit owner indeed could not lay claim to common areas by adverse possession. In doing so, he looked to the language of Chapter 183, §5, which deals with common areas. Foster noted that §5(a) provides that each unit owner is entitled to an undivided interest in common areas; §5(b)(1) provides that the percentage of undivided interest shall not be altered without consent of all unit owners; and §5(c) provides that common areas shall be undivided and no unit owner shall bring action for partition or division of any part except as provided by subsections of the statute not applicable here. “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,” Foster said, denying the plaintiffs’ motion. He also denied the plaintiffs’ cross-motion for summary judgment on the trustees’ counterclaims, finding that the plaintiffs did not demonstrate that the trustees would be unable to prove their counterclaims at trial.