Discretionary decisions of a condominium board are often afforded protection under either a reasonableness standard or the business judgment rule. In brief,
a board’s decisions will be preserved if they were made in good faith and for the benefit of the association. However, these protections are not absolute and, as evidenced by a recent decision from the Land Court, arbitrary, inconsistent, and unsupported decisions will not be upheld when subjected to a judge’s scrutiny.
In a February decision, the Land Court found that where a condominium board denied a unit owner’s request for permission to wall up an exterior entrance to her unit at her expense, the board failed to act in good faith and in the exercise of its honest judgment in the lawful and legitimate furtherance of the condominium’s purposes. Feldman v. Sanctuary Condominium Association (Land Court; 24 MISC 000298). Judge Vhay found that no legal standard supported the condominium board’s denial of the unit owner’s request and, as such, the board’s decision could not be upheld.
Constructed in 1988, the Sanctuary Condominium is a community located in Salem and consists of 172 attached townhomes. Debra Feldman purchased a unit while the project was being constructed. During construction, she noted that the unit she was purchasing – unlike the other homes within the community – had an exterior entrance located at the corner of the home’s kitchen. Ms. Feldman asked the developer’s principal, Howard Farfard, to remove and close the kitchen exit. Mr. Farfard, who was also one of the initial board members at the condominium, told Ms. Feldman that he would not close the exit, but that she could seek the board’s permission to close the opening, at her expense, and that the board would approve such a request.
Ms. Feldman closed on the purchase of her unit in May of 1987. Thereafter, she tried several times to obtain the board’s permission to wall up the kitchen entrance. Indeed, her first request for the board’s approval of the entrance closing came within a year of buying her unit. This request, as well as several others, were rejected by the board. Finally, in May of 2024, Ms. Feldman – representing herself as a pro se plaintiff – sued the association over the issue. The matter was tried before the Land Court over two days in late 2025. The case involved a determination of whether the Board acted improperly under Section 9(b) of the condominium’s master deed, which provides, in pertinent part, as follows:
Use of the
Units. Unless permitted
otherwise by instrument in writing duly executed in accordance with the By-Laws
of the [Sanctuary Condominium] Trust [the “Trust”]:
…
(b) The architectural and structural integrity of the Buildings and Units shall be preserved without modification, and to that end, without limiting the generality of the foregoing, no awning , screen, antenna, sign, banner or other device, and no exterior or structural change, addition, projection, decoration or other feature shall be erected or placed upon or attached to any such Unit or any part thereof; no addition to or change or replacement (except, so far as practicable, with identical kind) of any exterior light, door knocker or other exterior hardware, exterior door, or door frames shall be made, and no painting, attaching of decalcomania or other decoration shall be done on any exterior part or surface of any Unit nor on the interior surface of any window…
Over the years, Ms. Feldman’s kitchen door proved problematic. Following the board’s first denial to wall up the entrance, a wintertime nor’easter caused water to blow into her home through the bottom of the kitchen door. The frame of the kitchen door rotted or experienced rot four times. Around 2000, the board hired someone to remove the rot and repair the frame. The third time the frame rotted – sometime before 2020 – the board replaced the door and frame. Unfortunately, this did not prevent water from entering the kitchen during subsequent nor’easters or when contractors power-washed the home’s exterior. At the time of trial, the frame was showing mold and rot again.
Although most of the buildings within the condominium community were similar to the one that contained Ms. Feldman’s unit, many of the buildings have units with exteriors that differ in many ways from that of other buildings. Many of those exterior changes occurred following the original construction. Most of these changes, which were not uniform, received the board’s approval. The board otherwise tolerated the changes that did not receive approval.
In 2022, Ms. Feldman – in response to the requirements of the board – provided it with photos of the affected area, a quote from a licensed and insured contractor, and assurances that the work would be done at her expense. Nonetheless, the board again rejected her request – claiming that the board “cannot allow owners to make structural changes to the buildings that will fall back onto the Association to maintain.” Ms. Feldman thereafter initiated a lawsuit against the association.
Judge Vhay found that the walling of the unit’s kitchen exit would not result in additional maintenance costs. Indeed, it was costing the association money to address the door’s rot on multiple occasions. Those costs would disappear. Having the door removed would not increase the association’s power-washing or painting expenses (the association used to paint and power-wash the door). Also, no evidence at trial supported the board’s contention that the work proposed by Ms. Feldman would raise any structural concerns whatsoever. The subject work involved simple carpentry.
Discretionary decisions of a condominium board are subjected to scrutiny under one of two standards of review: (1) the business judgment rule, or (2) the reasonableness standard.
Under the business judgment rule, the board and its individual members are not liable for actions taken in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of the interests of the unit owners. Levandusky v. One Fifth Ave. Apartment Corp., 553 N.E.2d 1317, 1321-23 (N.Y. 1990). The standard has its origins in claims against board members in their individual capacities but has been applied in the Commonwealth to claims against the board. E.g., Pompei v. Fincham, No. 07-4743-BLS2, 2007 WL 4626915, at *2 (Mass. Super. Ct. Nov. 16, 2007) (Fabricant, J.); Pederzani v. Guerriere, No. 930502A, 1995 WL 1146832, at *1 (Mass. Super. Ct. Aug. 11, 1995) (Hely, J.). There are also trial court cases refusing to apply the business judgment rule in this circumstance. E.g., Trs. of Muzzey High Condo. Trust v. Lexington, 15 Mass. L. Rptr. 91, 2002 WL 1799736, at *12 (Mass. Super. Ct. June 7, 2002) (Neel, J.). An application of the business judgment rule creates a much higher burden on a complaining party and typically gives the board the necessary discretion to make what are often difficult decisions capable of resolution in numerous different ways.
In the alternative, an application of a reasonableness standard, which also gives deference to the board’s decision, may be applied by the court. The desired review is akin to the review of a municipal zoning board. The board has broad discretion in its decision making, but the discretion is not unlimited. The trial court should not substitute its judgment for the judgment of the board; so long as the board’s exercise of discretion was reasonable, it is sustainable even if a unit owner or reviewing court may have decided otherwise. Association counsel will find substantial support for this standard of review in appellate decisions of other jurisdictions. See, e.g., Bolandz v. 1230-1250 Twenty-Third St. Condo. Unit Owners Ass’n, Inc., 849 A.2d 1010, 1014-15 (D.C. 2004).
Judge Vhay determined that – regardless of the standard applied – the court could not uphold the board’s decision to deny Ms. Feldman permission to perform the subject work to her kitchen door, writing as follows:
The Court needn’t decide which standard controls board decisions pertaining exclusively to condominium common areas. That’s because the Board’s 2022 denial fails every test described above. The decision’s not reasonable under the facts proven at trial: the Work will cost the association nothing; it will save the Association future maintenance and repair costs; and it will reduce the Association’s liability for future interior damage to 13 Aurora as well as rot and mold infestation. But the denial’s also not worthy of deference under the business judgment doctrine. The denial’s arbitrary: the Board allowed more structurally intrusive alterations to Common Elements at 17 Aurora. The denial’s not credible: the Board’s August 22 denial letter gives only one (factually unsupported) reason for denial, and by the time of trial, the Board offered four new (likewise unsupported) excuses. The denial reflects no care in its consideration of the facts, despite the Board’s going through the motions of asking Feldman for construction details. And the Board ultimately failed at trial to articulate even a single substantiated reason why, for the good of the Association, the Board denied the Work.
After admonishing the board for its failure to act reasonably or to utilize sound business judgment, Judge Vhay entered judgment in Ms. Feldman’s favor and remanded the case to the board with instructions that it allow Ms. Feldman to have her kitchen door removed and walled up.
The Sanctuary Condominium case serves as a reminder that condominium boards cannot rule with impunity. While boards are afforded substantial discretion, that discretion is not limitless. As Judge Vhay determined, the decisions of a board must be in good faith and in the exercise of its honest judgment in the lawful and legitimate furtherance of the condominium’s purposes. A board’s decision should be based on sound reasoning and its decisions over time should be consistent. When faced with requests from a challenging unit owner, a board should consult with counsel in order to help assist with reaching well-reasoned decisions. It is far better practice to try to address these issues as they initially arise, rather than waiting to be sued by a pro se unit owner.
Dave is a
principal in the firm of Moriarty, Bielan & Gamache LLC, headquartered in
Quincy. He specializes in complex civil litigation at both the trial, and
appellate levels. Dave’s practice is focused on construction, real estate, and
condominium matters. His clients include condominium associations, real estate
developers, general contractors, subcontractors, and individuals. Dave can be contacted at drogers@mbgllc.com.
