Anyone living and working in the condominium field quickly learns that there are many unresolved issues and questions of law that arise.
In Pisano v. Thunberg, No. 18 MISC 000448 (RBF), 2021 WL 2656937 (Mass. Land Ct. June 28, 2021) (Foster, J.), the Land Court faced an unresolved issue and a dearth of case law. The question was whether condominium unit owners may obtain title by adverse possession over common areas of a condominium, adding that area to their unit, or whether such a claim is barred by the Massachusetts Condominium Act, G.L. c. 183A. Relying principally upon § 5 of the condominium act, the Court answered the first question in the negative, holding that such a claim is prohibited. A Notice of Appeal has already been filed, indicating that the Appeals Court may soon determine whether the Land Court’s decision is right.
Many people have a general familiarity with the concept of adverse possession, the elements of which are well-settled. In Massachusetts, a person can acquire title to recorded real property “by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years.” Sea Pines Condo. III Ass’n v. Steffens, 61 Mass. App. Ct. 838, 847 (2004), quoting Lawrence v. Concord, 439 Mass. 416, 421 (2003). “The burden of proof in any adverse possession case rests on the claimant and extends to all of the necessary elements of such possession.” Id., citing Holmes v. Johnson, 324 Mass. 450, 453 (1949).
In Pisano, the owners of a
unit at the seven-unit Bradford Acres Condominium in Provincetown asserted a
claim for adverse possession of a portion of the condominium’s common areas.
The condominium’s master deed gives each unit exclusive use of an abutting
porch, but that the yards extending beyond the porches are common areas. Upon
taking ownership of their unit in 2002, the owners were informed that their
unit’s deck extended onto the common areas and had done so for a period of at
least 10 years. The new owners continued their use of the deck. Their use of
the deck was open and notorious and, in fact, the owners of three other units had
similarly extended their use beyond their porches and onto the common areas.
Faced with competing dispositive motions,
the Land Court started its analysis with the condominium statute’s language to
ascertain whether “the Legislature intended that unit owners be barred from
obtaining title to common areas by adverse possession.” Recognizing that a “condominium is a form of
property ownership in which the unit owner retains an exclusive fee interest in
his individual unit in addition to an undivided interest with all other unit
owners in the condominium’s common areas and facilities,” Golub v. Milpo, Inc., 402 Mass. 397, 400 (1988), the Court cited
the provisions of § 5 of the statute and concluded that “a scheme of common
ownership of common areas … is antithetical to adverse possession by one of the
unit owners.” “Section 5 is unambiguous: it mandates that each unit owner is entitled
to a proportional, undivided interest in common areas in roughly the same
percentage as their unit interest in the condominium …, that the common areas
must remain undivided and cannot be partitioned …, and that the unit owners’
percentage interests in the common areas can only be modified by the consent of
all the unit owners.”
In reaching its conclusion, the Land Court
relied upon fundamental principles of common ownership – noting that unit
owners “voluntarily buy into the condominium arrangement of property rights,”
which precludes a claim for adverse possession over the common areas. Because
the statute clearly and unambiguously requires the consent of all unit owners
to any alteration of the unit owners’ respective percentage interest in the common
areas, one unit owner cannot unilaterally alter same by asserting a claim that
a portion of the common areas has been added to their unit.
As noted above, the plaintiff unit owners
have already filed a Notice of Appeal, and it is likely that the Appeals Court
will ultimately weigh in on this issue. In its decision, the Land Court noted
the dearth of case law in Massachusetts and also readily distinguished the
facts of the case from two out-of-state decisions upon which the plaintiff unit
owners relied. While the Land Court relied exclusively upon the language of the
act, it will be interesting to see whether the Appeals Court opines as to the
ability of a unit owner to satisfy the elements of an adverse possession claim.
In particular, the condominium form of ownership presents unique analytical
challenges under the adverse possession framework, as unit owners already have
an undivided ownership interest in the very land to which they would seek to
claim adverse possession.
From a practical perspective, this
decision is welcome news for condominiums boards, associations and management
companies. It would present a challenge
for those managing common areas to monitor prospective claims of adverse
possession in addition to their other duties.
Co-chair of REBA’s Strategic Communications Committee, Kim Bielan is a principal of Moriarty Troyer & Malloy LLC, and a member of the firm’s litigation and zoning and land use departments. She represents a variety of clients, including condominium associations, developers, and individual homeowners. Her email address is kbielan@lawmtm.com.
