In the case, the Appeals Court
was tasked with reviewing the lower court’s determination that cameras affixed
to defendant unit owners’ window frames did not violate the condominium’s
governing documents. While the Appeals Court ultimately affirmed same, the
primary focus of the Court’s discussion (in regard to the window frame cameras)
was dedicated to the notices that were sent to the defendant unit owners. Specifically,
the notices that had been sent “to the defendants stated only that the cameras violated
the condominium documents.” It appears that the notices only blanketly stated
the cameras were in violation of the governing documents without setting forth
the particular basis in the documents giving rise to such violation.
Despite the inexplicit
notices, during the hearing before the Court, the plaintiff trustees argued
they had broad authority to fine, as the cameras were a nuisance that
interfered with the peaceful possession of other unit owners, in violation of
the Master Deed. In response, the Court “declined to find that the cameras were
a nuisance, noting that ‘self-installed security cameras on private property
have become fairly commonplace in this day and age.’” Ultimately, the Court
concluded that it would be unfair for the plaintiff trustees to recover fines
under the notices sent “on grounds for which the plaintiffs had not been given
notice.” The Court held that fines are unreasonable “if imposed without notice
of the basis.”
Following the Court’s discussion
of the cameras affixed to window frames, the Court then reviewed the lower
court’s ruling, which adjudged that a camera affixed to the railing of the
porch of a unit was, in fact, in violation of the condominium’s governing
documents. Pursuant to Rule 2 of the condominium’s declaration of trust,
nothing was allowed to be stored in the common elements without prior approval
from the board. The unit owner deemed that she was not subject to Rule 2
because she had exclusive use of the porch rendering it “a ‘limited common area’
as defined in G. L. c. 183A, § 1.’” Despite the unit owner’s position, a
provision of the Master Deed set forth that the common elements included the balconies
of the condominium and that each unit owner had a license to exclusively use
the balcony. In reliance on that provision, the Court concluded that the “porch
camera was within the boundaries of the common elements and not within her
unit.” Furthermore, “[t]he judge noted that the condominium statute would
define a unit to encompass an appurtenant balcony ‘if ... stipulated in the
master deed as being owned by the unit owner,’ G. L. c. 183A, § 1 ‘Unit,’ but
here the master deed did not grant [the unit owner] ownership of the balcony,
only a ‘license’ to use it exclusively.’” Based on the foregoing, the Appeals
Court affirmed that the railing porch camera was in violation of the governing
documents.
In connection with the
finding that the railing porch camera was in violation of the condominium
documents, the Appeals Court assessed the reasonableness of the fine imposed by
the plaintiffs. The lower court, without providing much of an explanation for
same, found “that the fifty dollar per day fine that the plaintiffs imposed on [the
unit owner] for her porch camera was not ‘reasonable’ as required by G. L. c.
183A, § 10 (b) (5).’” The trustees proffered on appeal “that the judge abused
his discretion in making that determination, because the word ‘reasonable’ in §
10(b)(5) refers only to whether the imposition of a fine was reasonable, not to
whether the amount of the fine was reasonable.’” The Court concluded that the
term reasonable, as same is defined by G.L. c. 183A, § 10(b)(5), refers “to
both the imposition of the fine and its amount” and that ten dollars per day
would be reasonable in these circumstances. Notably, the decision does not
entirely detail why ten dollars would be reasonable, here, and does not explain
how the Court reconciled that fifty dollars would be too excessive only
providing that the judge “considered, among other factors, the plaintiffs’
conduct and what amount would serve as a ‘significant deterrent’ to unit owners
to refrain from violating the condominium rules.”
There are many good
takeaways from this case. Boards should carefully consider the amount of any
fine they wish to impose, and in sending cease and desist letters, said letters
should clearly set forth the basis of any such fine. As was seen in Trustees
of 10 Porter St. Condo. Trust, the Appeals Court found that charging fifty
dollars ($50) per day for a camera violation was not reasonable. Furthermore,
this case demonstrates how it is possible for a Court to analyze a
condominium’s governing documents in a way which would permit and forbid
cameras dependent upon location. Additionally, and strikingly, the Court also
refused to find that private cameras were a nuisance. Though the Court’s
explanation on this point was limited, the Court did mention that it did not
credit the plaintiffs’ testimony that cameras made people feel uncomfortable.
While there is no way to know if the Court would have made a different finding
if plaintiffs’ testimony was more credible, it is important to acknowledge that
the Court refused to find that a camera, under the circumstances of the case,
constituted a nuisance. It is important to reiterate that while this case made
several findings on an array of matters, the decision is not binding, but is
considered to be citable for persuasive value only.
A member of REBA’s
Condominium Law & Practice Section, Pam Coufos is an associate in the litigation and real estate departments of the
Boston and Quincy-based law firm of Moriarty Bielan & Malloy LLC. Pam is
experienced in land use litigation and diverse real estate and condominium
transactions. Prior to joining MTM, Pam practiced at Johnson & Borenstein,
LLC where she represented property owners and banks before the Land Court to
cure title defects and boundary disputes. Pam can be contacted by email at pcoufos@lawmtm.com.
