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Appeals Court of Massachusetts.

Walter CHAMBERLAIN & another,1 trustees,2 v. Charles M. BADAOUI, trustee,3& others.4


Decided: March 08, 2021

By the Court (Vuono, Rubin & Sullivan, JJ.5)


The plaintiffs, who are the cotrustees of the Walter Chamberlain Revocable Trust, which owns a unit in a condominium complex located at 549-551 Boylston Street, brought suit against the defendants who are the cotrustees of the 549-551 Boylston Street Condominium Trust (condominium trust), the condominium trust itself, and Byblos Investments International, LLC (Byblos), another unit owner in the condominium. The plaintiffs own unit 201 in the condominium, which is the front half of the second floor of the condominium building, while Byblos, one of the defendants, owns unit 101, which encompasses the first floor and the back half of the second floor of the building. The plaintiffs brought multiple claims against the defendants and, after a bench trial, several of them were successful.

On appeal, the defendants take issue with the trial judge's findings and rulings on only one issue -- whether the yearly fee paid by the owner of a neighboring building for the use of an exhaust vent system, located partially in unit 101 and partially on the exterior of the condominium building, should go to Byblos or to the condominium trust. The original agreement for use of the exhaust vent system (exhaust agreement) was made in 1999 between the neighboring building and Molded Antennas for Telecommunications, Inc. (MAT), the entity that owned 549-551 Boylston Street before it converted the building into a condominium complex. After MAT sold unit 101 to Byblos, Byblos ratified the exhaust agreement in 2009. Since 2009, the neighboring building has been paying the fee to Byblos, and Byblos has kept the proceeds rather than giving it to the condominium trust. Based on the judge's factual findings, which the parties do not contest, and the language of the condominium's master deed, the judge found that “the Exhaust Agreement covers areas within Unit 101 and common areas” and declared that “the proceeds of the Exhaust Agreement are to be credited [one-half] to Unit 101 and [one-half] to the Condominium Trust.”

The defendants raise two arguments. First, they contend that the judge erred in concluding that the exhaust vent system was partially common area property and not solely the property of unit 101. In support of their argument, they point primarily to section 4(e) of the condominium's master deed, which states that the following is unit property:

“Pipe Chase or Other Enclosures: concealing pipes, wires, or conduits within an unit are part of that unit, but the pipes, wires, or conduits within such pipe chase or other enclosure which serve more than one unit shall be deemed common area and the Condominium Trust shall be responsible for the maintenance, repair and replacement of such pipes, wires or conduits which serve more than one unit ․”

They further point to the judge's factual findings that part of the exhaust vent system is located “within Unit 101” and that “[t]he exhaust system cannot function without both parts -- i.e. the part within Unit 101 and the part on the exterior of the building.” They argue that since the judge found that the exhaust vent system is partially within unit 101 and it is an indivisible, unitary system, the only legal conclusion that can follow is that the entire exhaust vent system is the property of unit 101 under section 4(e).

“In interpreting a deed, as with any contract, we must construe all words that are plain and free from ambiguity according to their usual and ordinary sense” (quotation and citation omitted). Trustees of the Beechwood Village Condominium Trust v. USAlliance Fed. Credit Union, 95 Mass. App. Ct. 278, 284 (2019). Interpretation of a deed is a question of law, which we review de novo. See Skye v. Hession, 91 Mass. App. Ct. 423, 425 (2017). When the words of section 4(e) are read according to their usual and ordinary sense, they at most make the parts of the exhaust vent system within unit 101 part of that unit. Even if we take into account the finding of fact that the exhaust vent system is unitary and indivisible, the plain language of section 4(e) simply does not include as unit property the pipes, wires, or conduits outside of the borders of the unit.

Moreover, there are affirmative reasons that support the conclusion that the parts of the exhaust vent system outside of the unit are common area property. Section 5 of the master deed describes common areas as “the entire property shown on Exhibit A, other than the Units.” Exhibit A contains “[t]he land together with the buildings and improvements thereon now numbered 549-551 Boylston Street.” Taken together, they suggest that any property that is not designated as unit property in section 4 is common area property. If this is correct, as discussed, only part of the exhaust vent system, the part within the boundaries of unit 101, could be considered unit property. The other part of the system is affixed to the exterior wall and roof of the condominium building, which are common areas according to section 5(b) of the master deed. In any event, section 5(f) of the master deed states that common area property includes “[a]ll other apparatus and other common equipment, wherever located in, on or around the Building and not located within the boundaries of a Unit.” At the very least, section 5 makes clear that the portion of the exhaust vent system outside the borders of unit 101 is common area property. Therefore, the terms of the master deed preclude a conclusion that the entire exhaust vent system belongs to unit 101.

The defendants argue in the alternative that if the deed is ambiguous with regard to the exhaust vent system, the intent of MAT, the entity that converted the building into a condominium complex via the master deed, resolves the issue. They point to the original exhaust agreement that MAT executed. As the trial judge summarized MAT's position on the matter, “[a]ccording to MAT, the subject of the Exhaust Agreement was equipment and fixtures that exclusively serve and/or are connected with Unit 101; therefore MAT did not view the Condominium as having any right or claim to the same.”

In this case, the express language of the master deed is dispositive and controlling. See Strauss v. Oyster River Condominium Trust, 417 Mass. 442, 452 (1994) (master deed prescribes “rules of the game”). See also Queler v. Skowron, 438 Mass. 304, 311 (2002) (master deed “describes the land, buildings, units, and common areas of the condominium [and] sets forth the purposes for and use restrictions on said buildings and units”). Although deeds generally should be “construed as to give effect to the intent of the parties,” we decline to do so where the alleged intent is contrary to the express terms of the deed. Skye, 91 Mass. App. Ct. at 425, quoting Commercial Wharf E. Condominium Ass'n v. Waterfront Parking Corp., 407 Mass. 123, 131 (1990). See Sheftel v. Lebel, 44 Mass. App. Ct. 175, 178-179 (1998) (extent of easement is determined by express language of relevant deeds, not interpretation contrary to express language that would effectuate easement's “manifest purpose”). While the master deed does not mention the exhaust vent system explicitly, its provisions clearly and unambiguously preclude a conclusion that the entire exhaust vent system is the property of unit 101. “Where the language of the master deed is clear and unambiguous, the inquiry need go no further.” Chamberlain v. Badaoui, 95 Mass. App. Ct. 670, 674 (2019).

Second, the defendants argue that even if the judge's decision to split ownership of the exhaust vent system was accurate, the judge's remedy, which requires half of the proceeds to be allocated to the condominium trust and half to the owners of unit 101, does not follow logically from that split of ownership interests and is in conflict with G. L. c. 183A. This issue was not raised below, which the defendants concede, and thus it is waived. See Boss v. Leverett, 484 Mass. 553, 562-563 (2020).

Therefore, based on the judge's uncontested findings of fact and the language of the master deed, we affirm the judgment on the allocation of proceeds from the exhaust agreement.6

The plaintiffs request appellate attorney's fees and costs on the theory that Massachusetts case law allows for the award of attorney's fees to plaintiffs who bring successful derivative actions.7 See Martin v. F.S. Payne Co., 409 Mass. 753, 758 (1991). The cases the plaintiffs rely upon for attorney's fees arise in the context of derivative claims brought by stockholders on behalf of corporations. See id.; Shaw v. Harding, 306 Mass. 441, 450 (1940). We rely on Calvao v. Raspallo, 92 Mass. App. Ct. 350, 354 (2017), which awarded attorney's fees to plaintiffs bringing a derivative action in the condominium context. In explaining its decision, Calvao cited G. L. c. 183A, § 6 (a) (ii), which states, “If any expense is incurred ․ as a result of the unit owner's failure to abide by the requirements of [the statute] or the requirements of the master deed, trust, [or] by-laws,” the condominium association could assess the expense, including attorney's fees and court costs, “exclusively against the unit owner.” The court reasoned that since the plaintiffs brought a derivative action “vindicat[ing] the condominium board's rights and [G. L. c. 183A] allows the assessment of attorney's fees in such matters, the judge acted within his broad discretion in assessing fees.” Id.

Here, the plaintiffs prevailed on what is appropriately classified as a derivative suit. See Cote v. Levine, 52 Mass. App. Ct. 435, 439 (2001) (“Where the plaintiffs are, in essence, seeking recovery of funds properly owing to the [condominium] unit owners' association, they can only assert their claims through a derivative suit” [quotation and citation omitted]). As in Calvao, the plaintiffs vindicated the condominium trust's rights under the condominium's master deed and declaration of trust.8 Since G. L. c. 183A allows the assessment of attorney's fees and court costs in such matters, we conclude that the plaintiffs are entitled to attorney's fees and costs incurred on appeal. See Calvao, 92 Mass. App. Ct. at 354.

The plaintiffs may submit a fully supported petition for fees and costs within fourteen days of the date of this decision. The petition should address the nature of the case and the issues presented, an itemization of the time and labor required, the amount of damages involved, the result obtained, the experience, reputation, and ability of the attorney, and the usual amount charged for similar services by other attorneys in the same area. The defendants shall be given an additional fourteen days to respond. See Yorke Mgt. v. Castro, 406 Mass. 17, 20 (1989).

Amended final judgment affirmed.


6.   The plaintiffs argue in their appellate brief that all of the proceeds generated from the exhaust agreement should go to the condominium trust. However, the plaintiffs failed to cross appeal, which “precludes [it] from obtaining a judgment more favorable to it than the judgment entered below.” Boston Edison Co. v. Boston Redevelopment Auth., 374 Mass. 37, 43 n.5 (1977).

7.   Any application for fees in the trial court may be made there.

8.   The declaration of trust establishes by-laws which give the trustees “full power and uncontrolled discretion” over trust property, including the right to “[e]nter into any arrangement for the use or occupation of the trust property, or any part or parts thereof, including ․ leases, subleases, easements, licenses or concessions.”

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