Wednesday, August 7, 2019

Appeals Court Holds that Unit Owner Does Not Have Express Easement or Easement by Necessity to Gain Access to Fire Escape


Last week, the Massachusetts Appeals Court issued a decision in Chamberlain v. Badaoui, 2019 WL 3334700 (“Chamberlain”) reversing the lower court’s judgments, holding that a condominium master deed does not contain an express easement permitting a unit owner to gain access to a fire escape through another owner’s unit, nor did the unit owner have an easement by necessity through the other owner’s unit to accommodate such access. (A copy of the Chamberlain decision can be found by clicking on this link.)

On appeal, the Appeals Court began its analysis by quoting from G.L. c. 183A, § 3, stating that “[a] unit owner is entitled to exclusive ownership and control over his unit ‘as if it were sole and entirely independent of the other units in the condominium of which it forms a part.’”

In Chamberlain, the parties were all unit owners of a condominium located on Boylston Street in Copley Square in the City of Boston.1 The plaintiffs, Walter Chamberlain and Yin Kau Ho, as co-trustees of the Walter Chamberlain Revocable Trust (the “Plaintiffs”), were the owners of a unit on the second floor of the building located at the front of the building facing Copley Square (“Unit 201”). The defendants, Byblos Investments International, LLC (“Byblos”) and Charles M. Badaoui, a member and the manager of Byblos, were the owners of another unit which is located in the basement, ground, first and second floors at the rear of the building (“Unit 101”).2 Byblos leased Unit 101 to Wendy’s Old Fashioned Hamburgers of New York Inc. (“Wendy’s”). The fire escape at issue was attached to the rear exterior wall of the building, and, from the second floor, only accessible from inside the second-floor portion of Unit 101.

The Plaintiffs brought an action seeking declaratory relief, damages for the defendants’ refusal to honor an easement, and damages under G.L. c. 93A. Specifically, the Plaintiffs argued that they had a right to open the door to the second-floor portion of Unit 101 to access the fire escape. The Superior Court granted the Plaintiffs’ partial motion for summary judgment as to their declaratory relief count, and denied the defendants’ cross motion, holding that Unit 201 enjoys both an express easement and easement by necessity through the second-floor portion of Unit 101 to access the fire escape. The remaining counts were decided at a bench trial, in which the trial judge found that the defendants violated the Plaintiffs’ rights as owners of Unit 201 and caused damages by blocking Unit 201’s access to the fire escape, making Unit 201 “unrentable” as a matter of fact and law. Additionally, the trial judge concluded that the defendants violated G.L. c. 93A and awarded the Plaintiffs double damages ($742,126.43) and attorney’s fees and costs ($93,513.46). The defendants appealed the lower courts’ determinations on all counts.

On appeal, the Appeals Court began its analysis by quoting from G.L. c. 183A, § 3, stating that “[a] unit owner is entitled to exclusive ownership and control over his unit ‘as if it were sole and entirely independent of the other units in the condominium of which it forms a part.’” The Appeals Court further added that “[s]uch control ‘is subject only to the limitations set forth in the master deed and the condominium bylaws.’”3

Next, the Appeals Court held that the master deed did not create an express easement granting Unit 201 a right of way through Unit 101 to access the fire escape stairs for emergency egress. The Appeals Court recited the following principle:

An express easement can be created only by a writing signed by the party to be bound, and the writing ‘must identify with reasonable certainty the easement created and the dominant and servient tenements.’ . . . Where an easement is created by deed, its meaning, ‘derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances.’4

Ultimately, the Appeals Court found that the master deed granted Unit 201 an express "exclusive right and easement . . . to use . . . the fire escape stairs located on the Building for the purpose of providing access and emergency egress to such Units;" however, the master deed was facially defective in that it did not provide Unit 201 access to the fire escape from the second floor. Furthermore, the Appeals Court concluded that the second-floor plans did not show words or symbols indicating that Unit 201 could access the fire escape through Unit 101, in contrast to the plans for the other floors in the building, which marked a means of egress for using the fire escape.

Moreover, the Appeals Court noted that the easement was subject to the obligations and restrictions contained in the Master Deed, the By-Laws, the Rules and Regulations of the Condominium Trust, and Chapter 183A. As such, the Appeals Court looked to the governing documents, and found that the exclusive possessory interests in the units take precedence over the easement to use the fire escape because units are defined first, and then common areas are defined. The Appeals Court further noted that where the master deed provided an easement in favor of one unit for the benefit of another, it did so explicitly.5 Thus, the Appeals Court concluded that master deed and plans did not grant Unit 201 an express easement to pass through Unit 101's second-floor space to access the fire escape.

Next, the Appeals Court held that Unit 201 did not have an easement by necessity through Unit 101 to access the fire escape for emergency egress. To create an easement by necessity, the party claiming it has the burden of establishing that the parties intended to create an easement that is not expressed in the deed.6 The Appeals Court rejected the Plaintiffs’ argument that Unit 201 possessed an easement by necessity because access through Unit 101 was necessary for the reasonable enjoyment of Unit 201's easement to use the fire escape stairs, and because the initial owner of Units 101 and 201 (who was also the condominium declarant), intended to create such an easement. The Appeals Court repeated the principle that condominium unit owners are entitled to exclusive possession of their unit, and that upon execution of the master deed, a unit owners’ rights and limitations are found exclusively within the condominium documents. As such, the Appeals Court again held that the master deed failed to demonstrate the declarant’s intent that Unit 201 possess any rights to a portion of the building that the master deed designated as exclusively owned by Unit 101. To read such an easement into the master deed, the Appeals Court explained would “infringe upon Byblos's exclusive use and possession of unit 101, and ‘[o]ur law simply does not sanction this type of private eminent domain.’”7

In its final remarks, the Appeals Court acknowledged the negative effect its decision would have on the owners of Unit 201. However, the Appeals Court adamantly stated:

[W]e cannot disregard the legal instruments that created the condominium and units, and neither can the trustees. In considering who must bear the consequences of the scope and limitations of the rights of a particular unit, they must fall on the purchaser of the unit rather than on another unit owner in the building.

Ultimately, the Appeals Court entered a new judgment and reversed the order granting partial summary judgment and the final judgment for the Plaintiffs’ claim for monetary damages and damages stemming from a violation of G.L. c. 93A, as they were premised on the existence of a valid easement.

Chamberlain should serve as a critical reminder of the importance of including easements, particularly ones that provide access during a fire or other emergency, in condominium documents at the outset. Although the issue between the Unit owners in Chamberlain could presumably be resolved through negotiation, there is no guarantee that such negotiations would be successful. Furthermore, although it was not addressed by the parties, it is worth noting that, pursuant to the Massachusetts State Building Code, 780 Code Mass. Regs. § 1006.2.1 (1997), "[a]n exit access shall not pass through a room subject to locking", and 780 Code Mass. Regs. § 1017.4.1 (1997), with some exceptions, "egress doors shall be readily openable from the side from which egress is to be made without the use of a key or special knowledge or effort."

Originally posted July 26, 2019 on tlawmtm.com.

1 The owner of the building, Molded Antennas for Telecommunications, Inc., converted the building into a five-unit condominium and executed and recorded a master deed prior to either party owning their respective units in the building.
2 The space on the second floor of Unit 101 is used as a mechanical room. For this proposition, the Appeals Court cited 39 Joy St.
3 For this proposition, the Appeals Court cited 39 Joy St. Condominium Ass'n v. Board of Appeal of Boston, 426 Mass. 485, 487 (1998).
4 Quoting from Parkinson v. Assessors of Medfield, 395 Mass. 643, 645 (1985), S.C., 398 Mass. 112 (1986) and Patterson v. Paul, 448 Mass. 658, 665 (2007).
5 For example, the Appeals Court noted that the master deed provided that "[e]ach Unit shall have an easement to use, maintain, repair, operate, and replace all HVAC Equipment serving such Unit located in the Common Elements or in any of the other Units, and each Unit shall be subject to such easement in favor of the other Units,” and that "[e]ach Unit shall be subject to an easement in favor of the owners of all other Units to use all pipes, wires, flues, ducts, conduits, plumbing lines and other portions of the common areas and facilities serving such other units and located in such unit."
6 Kitras v. Aquinnah, 474 Mass. 132, 139 (2016).
7 Quoting Goulding v. Cook, 422 Mass. 276, 278 (1996).

Should you have any questions regarding this article, please do not hesitate to contact Michelle Rosin at 781-817-4900 or by email at mrosin@lawmtm.com

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