A Tale of Two Adjacent Lots

By Kimberly A. Bielan

Like most matters, a property owner’s request for enforcement of a municipality’s zoning bylaw is subject to a limitation period.

Recently, in Bruno v. Zoning Bd. of Appeals of Tisbury, 93 Mass. App. Ct. 48 (2018), the Appeals Court had an opportunity to analyze the interplay between the statute of limitations contained in the Zoning Act, G.L. c. 40A, § 7, and the endorsement of an approval not required (ANR) plan showing zoning violations. Specifically, the Appeals Court held that the limitations period begins to run from the date one of the lots on the ANR plan lots is conveyed rather than the date the zoning board approved the ANR plan.

Specifically, the Appeals Court held that the limitations period begins to run from the date one of the lots on the ANR plan lots is conveyed rather than the date the zoning board approved the ANR plan.

The Basics

The Bruno case involves the interaction of fundamental zoning principles and reached a conclusion that is logical based upon these maxims, but which had not yet been explicitly decided in the Commonwealth. These principles include:

• Statute of Limitations. A statute of limitations bars claims after a specified period by establishing a time limit for suing in a civil case, based upon the date when the claim accrued. The Zoning Act, G.L. c. 40A, contains statute of limitations in § 7. While overly simplistic, there are three applicable limitations for enforcement in the Zoning Act: for structures built pursuant to a building permit, 6 years; for structures not built pursuant to a building permit, 10 years (which structures are now deemed to have “grandfathered” status and constitute legally nonconforming buildings); and for uses pursuant to a building permit, 6 years. Notably, there is no limitations period relative to an unauthorized use that is not identified in a building permit, and an action to enforce a violative use may be brought at any time.

• ANR Plan. An ANR plan is a plan showing division of a property that does not require approval under the subdivision control law. The plan is submitted to a municipality’s planning board and, if approval is not required under the subdivision control law, the planning board must endorse the plan. A planning board’s review of such plan is limited to whether the plan shows a subdivision – it does not look at the zoning compliance of the resulting lots as that is beyond the board’s purview. While a planning board’s endorsement of an ANR plan may be appealed, such appeal concerns only whether the planning board’s determination as to whether the plan is entitled to endorsement was proper.

• Doctrine of Merger. The common law doctrine of merger provides that adjacent nonconforming lots held in common ownership shall be treated as “merged” as a single lot for zoning purposes. The underlying objective of the doctrine is to reduce nonconformities. An example may be helpful. A residential zoning district requires lots to have a minimum size of 40,000 sq. ft. I own two adjacent lots, each containing 20,000 sq. ft. For zoning purposes, those lots will be treated as a single, merged lot.

The Case

In Bruno, the defendant property owners and their family owned a parcel in Tisbury on Martha’s Vineyard. In 2001, the property owners obtained endorsement of an ANR plan, which divided the parcel into two adjacent lots – Lot 1 and Lot 2. Lot 1 contains an accessory structure that had been permitted for use as a guest house, and Lot 2 contains the main single-family structure. While the ANR plan proposed to divide the original parcel into two lots, which would result in certain dimensional violations of the zoning bylaw, the owners continued to hold the lots in common ownership. Indeed, after 2001, the property owners figuratively put the endorsed ANR plan in a drawer and took no further action with respect thereto. In 2005, and after the passage of four years, the defendant property owners then sold Lot 2. Subsequent thereto, in or around 2013, the plaintiffs became aware of the zoning violations and sought enforcement. Enforcement was denied, and affirmed by the zoning board of appeals, on the basis that the enforcement was untimely.ⁱ

On appeal to the Land Court pursuant to G.L. c. 40A, § 17, the Court considered a novel issue: whether the 10-year statute of limitations for zoning violations shown on an ANR plan commenced running upon endorsement of the ANR plan or upon alienation of one of the lots, resulting in realization of such violation. The Court held that, as the enforcement request was not initiated until 2013 – more than 10 years after the endorsement of the ANR plan – it was time-barred. The Court reached such conclusion on the basis that “in the eyes of the law, there were … violations in existence starting when the ANR plan was endorsed.”

On appeal, the Appeals Court reversed that portion of the Land Court’s decision relating to the 10-year statute of limitations, holding that “the ten-year statute of limitations under G.L. c. 40A, § 7 – which governs actions to compel the removal of a structure because of alleged zoning violations – commenced at the time that the lot containing the primary house was conveyed, rather than at the endorsement of the approval not required (ANR) subdivision plan.” In reaching this conclusion, the Appeals Court relied upon the common law doctrine of merger and determined that “Lot 1 and Lot 2 must therefore be viewed as a single conforming lot until the 2005 conveyance, regardless of the prior ANR subdivision.”

As pointed out by the Court, not only was the decision logical in light of the applicable doctrines, but it also preserves the interests of neighboring property owners. “If we construed the statute of limitations as commencing upon the ANR endorsement, any property owner could obtain an ANR endorsement for a subdivision plan and then wait ten years to separate the lots, thus creating nonconforming lots without any opportunity for the town to enforce its zoning by-law. Our construction, by contrast, allows the town ten years after the lots are separated to enforce its zoning by-law, consistent with the Legislature’s intent.”

ⁱ The municipality relied upon the 6-year statute of limitations in § 7, which was indisputably erroneous.

Originally posted April 25, 2017 on tlawmtm.com.

http://lawmtm.com/statute-limitations-zoning-violation.html

Kim Bielan is an associate in the litigation and zoning and land use departments of the Braintree-based firm of Moriarty, Troyer & Malloy, LLC.  She represents a variety of clients, including condominium associations, developers, and individual homeowners. Kim’s practice focuses primarily on real estate litigation, with an emphasis on zoning and land use matters. She also represents clients on a variety of real estate permitting matters and frequently appears before municipal boards to permit projects and to represent the interests of abutters and neighborhood groups; she can be contacted by email at kbielan@lawmtm.com.

My Take on the SJC’s Queler vs.Skowron Decision

By Saul J. Feldman

The SJC in Queler, 438 Mass 304 (2002), concluded that the declarant of a phased condominium development may reserve in the master deed an interest in property that is submitted to the

provisions of the Massachusetts Condominium Statute, such that the designated property will revert in the declarant if a specific condition occurs.

The SJC recognized that under common law a property owner has the right to impose limitations or conditions on an estate that is conveyed to another, such that the conveyance is not one of fee simple absolute. The SJC further concluded that the declarant’s retention of a defeasible fee is not inconsistent with Chapter 183A.

Referring to a 1986 decision, Tosney v. Chelmsford Village Condominium Association, the SJC stated that those matters that are not specifically addressed in the statute are to be worked out by the involved parties.

Once Phase 1 is completed, the subsequent phases can be added to the condominium without any structures on these phases. This is based on several cases, in the Tosney case the court ruled that Chapter 183A is an enabling statute; what is not specifically prohibited is allowed. In the Queler case, the analysis is based on a fee simple interest, with a reversion which would allow the subsequent phases to consist of just land without any structure. There is not any need for a construction trailer or any structure on the subsequent phases. This would not be a land-only condominium, because Phase 1 would have one or more buildings on it.

An example would be the Blackrock Condominium, a mixed-use condominium for which I drafted the condominium documents. Phase 1 is the golf course and the remaining land is the residential component. As Phase 1, the golf course and its clubhouse are already in the condominium, when the time comes to start bringing in the residential phases, this is clearly not a land-only condominium because Phase 1, the golf unit, already has a building.

Finally, my take on Queler is perhaps best expressed in the earlier 1995 case of Podell v. Zahn.  The court in Podell stated that phasing grew out of the general enabling provisions of Chapter 183A and that phasing permits a developer to expand the project in response to market conditions. A bank would not be willing to lend $5,000,000 up front but would be willing to lend $1,000,000 upfront and the remaining $4,000,000 in tranches, as long as the market justifies the additional phases. For example, each tranche could be for $1,000,000. See Massachusetts Condominium Law (MCLE, Inc. 3^rd ed. 2015 & Supp. 2017). The SJC in Podell noted that successive phases are added by successive phasing amendments to the master deed.

           

Queler is important for the following reasons:

1)      If the declarant wants to remove land, the master deed should expressly state that the declarant submits a fee-simple determinable, not a fee-simple absolute, and the removal procedure should rely on the common law defeasible fee.

2)      The case of Levy v. Reardon was expressly overruled by Queler. Most practitioners believed that the Levy case was a mistake and found comfort in the fact that Queler overruled Levy.

3)      In Queler, the SJC returns to its flexibility posture, allowing problems to be sorted out by conveyancing attorneys.

There have been periods of time when I believed that Chapter 183A should be replaced by a second-generation statute modelled after the Uniform Condominium Act or a third-generation statute modelled after the Uniform Common Interest Ownership Act. There have also periods of time when I believed it would be best to leave things the way they are, given the large body of case law which now interprets Chapter 183A. The case law along with Chapter 183A works very well.

As I move into the retirement phase of my life, I still have not made up my mind. If I wake up in the middle of the night with the answer, I will write another article to share my conclusion with you!

           

A longtime member of REBA, Saul Feldman recently retired after practicing law for almost 50 years.  REBA News wishes him a long, healthy and content retirement. Saul can be contacted by email at saul@feldmanrelaw.com.

Appeals Court Concludes That Condominium Board Does Not Have the Ability to Dismiss Lawsuit Where Majority of Board Had Conflict of Interest

By David Rogers 

Condominium developers have long employed creative measures for avoiding liability for deficient construction – whether it’s baking self-serving anti-litigation provisions into the condominium

documents or using single-purpose asset-less entities to develop the condominium. One practice that developers have commonly employed – after they have been sued by the association – is to “pack” the condominium board with pro-developer shills. A 2016 Appeals Court decision indicates, however, that courts may not look favorably on a developer’s board-packing scheme.

In Washington West, the condominium association – seeking to recover unpaid condominium fees – advanced claims against the record owners of four separate condominium units. Trustees of the Washington West Condominium Trust v. Ashkouri, 89 Mass. App. Ct. 1102 (2016) (Rule 1:28). One individual – Hisham Ashkouri – essentially owned all four of these units through various realty trusts. After the lawsuit was filed, two additional trustees were appointed to the board of the condominium association. These newly appointed board members were trustees of realty trusts that owned “Ashkouri units.” At a special meeting – after Ashkouri had essentially “packed” the board – the majority of the Board voted to dismiss the lawsuit and thereafter filed a stipulation of dismissal with the Court on behalf of the condominium association. The defendants also filed a motion to dismiss – styled as a “motion in limine to dismiss plaintiff’s claims for lack of standing” – and an “emergency motion for declaratory judgment.”

One practice that developers have commonly employed – after they have been sued by the association – is to “pack” the condominium board with pro-developer shills. 

Although a hearing was held on the motion to dismiss, the decision on these motions was not issued until trial. The defendants contended that – because G.L. c. 183A § 10(b)(4) confers standing on the condominium association to conduct litigation – the association lost standing to prosecute the board’s claims once a majority of the trustees voted to dismiss the lawsuit. The trial court judge, rejecting the defendants’ lack-of-standing argument, concluded that “[g]iven their obvious conflict of interest, it is evident that the three trustees cannot satisfy their burden of proving the ‘intrinsic fairness of the vote and the vote did not harm the Trust.” The Appeals Court affirmed the trial court’s ruling – noting that “[i]f the trustees did, in fact, represent units that were in arrears, the trustees were then interested parties, and the court was permitted to strictly enforce the fiduciary rule against self-dealing and hold invalid the vote of the interested trustees.”

It is undoubtedly surprising that a court could rule that a condominium board – despite a majority vote in favor of dismissing a lawsuit – could essentially be compelled to maintain a civil action. While this lawsuit did not involve claims against the developer, the Appeals Court’s decision (although unpublished) provides some authority for challenging the practice of a developer’s board-packing tactics.

Courts have commonly looked unfavorably on developer’s self-serving efforts to shield themselves from liability, or otherwise rely upon legal defenses that would bar recovery in the condominium context. A Superior Court decision – issued by Chief Justice Ralph D. Gants – determined that a provision in the condominium documents, which shielded trustees from liability, did not apply to the declarant-appointed trustee, ruling that it “cannot survive careful judicial scrutiny when the provision is enacted by the developer to protect the officers it selects to manage the Trust from liability.” Harris v. McIntyre, 2000 WL 942559, *10 - *11 (Mass. Super.). The Court found, therefore, that the provision was void as violative of public policy because it so decidedly favored the developer-appointed trustee. The Court also concluded that a developer could not maintain a statute of limitations defense against a condominium trust, which was controlled by the unit owners, when the developer-appointed trustees failed to timely sue the developer. Harris, 2000 WL 942559, *15 (Mass. Super.); see also Beaconsfield Townhouse Condominium Trust v. Zussman, 49 Mass.App.Ct. 757, 761 (2000)(using the date that the condominium trust acquired independent trustees as the starting point for a statute of limitations analysis in a case involving roof problems); Libman v. Zuckerman, 33 Mass.App.Ct. 341, 345 (1992)(accepting master’s finding that the defendants, condominium developers, were estopped from raising the statute of limitations defense, as they had been managers of the condominium unit owners’ association). Superior Court decisions have also ruled that the statute of repose does not bar a condominium board’s breach of fiduciary duty claim against declarant-appointed trustees for the failure to address construction deficiencies. Pederzani v. Guerriere, 1995 WL 1146832, *3 (Mass. Super.). Harris v. McIntyre, 2000 WL 942559, *12 (Mass. Super.). The Supreme Judicial Court ruled that the economic loss rule does not apply to damage caused by negligent design and construction of the common areas of a condominium building – in a case involving a board’s construction defects claims against the developer. Wyman v. Ayer Properties, LLC, 469 Mass. 64 (2014).

Protracted litigation can be trying for any condominium association. Volunteer board members have the unenviable task of having to maintain the morale of the association while expensive litigation seemingly drags on indefinitely. Many unit owners want to give developers, who can be charismatic and charming business people, the benefit of the doubt. Unit owners – successful and sophisticated in their own right – often find it difficult to accept that they have been hoodwinked by an unscrupulous developer. These unit owners need to be reminded that such lawsuits serve to protect their real property investments. Board members have a duty to maintain the common areas of the building, and by seeking to make the responsible parties pay for the deficiencies (i.e., the developer who performed the shoddy construction) – as opposed to the unit owners – the Board is serving its fiduciary obligation to the association.

Pro-developer factions can form during the course of litigation. In many instances, these unit owners are not directly impacted by the subject construction deficiencies, and they do not want to be responsible for funding the lawsuit. These factions are often manipulated by the developer, who contends that the board is being led astray with poor engineering and greedy lawyers. In reality, the volunteer board does not take any pleasure in prosecuting lawsuits, but is simply trying to hold the developer responsible for its deficient construction – rather than saddling the unit owners with a hefty assessment to deliver the well-constructed homes that they believed they were purchasing. Fortunately, the Washington West decision provides an indication that a court will not be inclined to allow a developer to torpedo a meritorious lawsuit with a board-packing scheme. 

Originally posted March 28, 2018 on tlawmtm.com:
http://lawmtm.com/appeals-court-concludes-condominium-board-majority-board-conflict.html

For nearly 15 years, Dave has been specializing in complex civil litigation at both the trial and appellate levels. He has extensive experience in the area of construction litigation. 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 is also certified as a player agent by the Major League Baseball Players Association and has negotiated more than $56 million in professional baseball contracts.

Appeals Court Requires Unanimous Unit Owner Consent To Expand Over Existing Exclusive Use Area

By Christopher S. Malloy

A recent decision by the Massachusetts Appeals Court concerning a unit owner’s right to unilaterally expand her unit into exclusive use common area previously granted by virtue of the master deed has

raised some uncertainty as to how condominium boards effectuate grants of limited common area, and more specifically, what rights unit owners have to alter existing exclusive use area.

In Cavalo v. Raspallo, 92 Mass.App.Ct. 350 (2017), the Appeals Court concluded that a unit owner may not “annex” exclusive use common area to her unit without the unanimous consent of the other unit owners holding a legal interest in that common area, despite the fact the area is for the exclusive use of the expanding unit owner. Cavalo involved a two-unit condominium in Dennis, Massachusetts where most of the common area was designated in the master deed as “exclusive use” for one unit or the other. In 2011, one-unit owner, Cavalo, constructed a 111 square-foot enclosed addition to her home which was situated entirely on her exclusive use area. The Raspallos challenged her ability to construct the addition and filed suit seeking injunctive relief both on their own behalf and derivatively on behalf of the association. After affording the parties an opportunity to resolve the matter privately, the trial court ultimately determined that the addition was not properly authorized, ordered its removal and required the Raspallos to pay attorneys’ fees to the association in connection with the derivative aspect of the claim.

The Appeals Court agreed with the trial court and appears to articulate a new standard requiring consent from 100% of all condominium unit owners when a unit owner seeks to expand their unit into previously granted exclusive use common area. The reasoning for the Court’s conclusion, however, is largely pinned on two cases from the 1990’s with substantially different factual scenarios, as well as certain amendments to M.G.L. c. 183A, s. 5 which govern the grants of exclusive use areas in a manner different than what underpins the Court’s concerns.

The Court initially relies upon Strauss v. Oyster River Condominium Trust, 417 Mass. 442 (1994) which involved a similar expansion of a unit into exclusive use common area, however in that circumstance the master deed purported to allow unit owners to expand their units into common area needing only the consent of the trustees. In Strauss, the area into which the owners expanding their units was not originally exclusive use area, which resulted in the need to recalculate percentage interest in the common areas for all other owners, which constituted a deprivation of property interests in violation of the master deed and c. 183A.

In Kaplan v. Boudreaux, 410 Mass. 435 (1991), the Court was confronted with similar circumstances in which the trustees attempted to implement an amendment to the condominium’s bylaws granting a single unit owner exclusive use over a portion of common area that was not originally granted in the master deed. As a result, other unit owners lost their right to use that portion of the common property, the deprivation of which created a need to recalculate the relative interest of all unit owners in the common area, something which would have required consent of 100% of the percentage interest.

Distinguishing Cavalo

Both Kaplan and Strauss involve instances where the common area over which the unit owner expanded their unit was not exclusive use area prior to the expansion, which ultimately deprived other owners of their interest in that portion of the common areas. In Cavalo, the unit owner already possessed the exclusive use area so it presents a legitimate question as to whether the other unit owner(s) are actually deprived of any property right, as they were not previously permitted to utilize that portion of the common area in the first instance. Further, as no unit owner was deprived of such a right to enjoy that portion of the common to which they previous possessed, the need to recalculate the percentage interests of all owners was not triggered. Nevertheless, the Court relied upon the reasoning in Strauss and Kaplan in concluding Cavalo’s actions were not permitted.

The Cavalo Court expressed concern that if it adopted Raspallo’s position then “condominium trustees could unilaterally assign common area to the exclusive use of a unit owner and then allow that unit owner to take fee simple possession of that former common area by building on it.” That concern, however, is belied by the specific statutory framework regarding grants of exclusive use area, which was modified in 1994, partially in response to Kaplan and Strauss. M.G.L. c. 183A, s. 5(b)(ii) requires that when a board desires to grant limited common area to a unit owner which was not otherwise granted in the original master deed it must obtain the consent of all unit owners abutting the area which will become exclusive use as well as 51% of all first mortgagees; such a grant cannot be made by the trustees acting alone, which effectively eliminates the concerns raised by the Cavalo Court. In fact, the 1994 amendments to Section 5(b), and the assumed underlying motivation for the changes, are irrelevant to the circumstances present in Cavalo because there was no grant of limited common area by the trustees.

Raspallo has filed an Application for Further Appellate Review (FAR) asking the SJC to consider whether the expansion of a unit occurring entirely within an existing exclusive use area appurtenant to that unit materially affects the ownership interests of other unit owners. If the SJC accepts the case for further review its decision may ultimately rest on grounds other than those articulated by the Appeals Court, as the issue may in fact turn on whether certain types of expansion are permitted over existing exclusive use areas (e.g. patios, decks, etc.), versus whether the ruling addresses only those enclosed expansions that are considered annexations of the exclusive use area, which would require consent from 100% of the unit owners, despite the fact no new limited common area is being created and no recalculation of percentage interests is required.

Practical Considerations

If you are a developer or represent a developer it is important to make your intention with regard to the creation of the limited common area manifest in the master deed. If the grant of exclusive use common area is to include the right to fully enclose the space, state it clearly in the master deed. If the intention is not to allow enclosure, but to allow something more than the maintenance of unimproved open space, identify in the master deed with as much precision as possible the unilateral rights possessed by the unit owner in such regard;

If you are a condominium board or a manager advising a board that is considering granting a unit owner exclusive rights to occupy the common area, but without the addition of elements which enclose otherwise open common area land, whether it simply be to pass and re-pass through an opening in a common area wall for the purposes of joining two units or to allow unenclosed construction on a deck constructed on exclusive use common area, consider granting both an easement and creating limited common area under 183A Section 5(b)(2)(i)&(ii) and be specific in regard to what the unit owner can and cannot do with and on the exclusive use area. In such cases, the circumstances can be very different, and the board should include, with the advice of counsel, such conditions as are appropriate (including conditions identified below when advisable); and

If the intention is to allow a unit owner the right to fully enclose and effectively incorporate a portion of unimproved exclusive use common area as part of an owner's unit, the safest approach is to get 100% of the unit owners to approve along with consent from the requisite percentage of first mortgagees.

If, on the other hand, the decision is made to rely on the power granted to the organization of unit owners in the statute, without 100% of the unit owners, then the board should:

a. Review the master deed to determine if such grant is inconsistent with other provisions in the governing documents;

b. Check with its insurance agent to ensure that the elements of the structure can be, and are insured and include in the grant an obligation on the part of the unit owner to reimburse the board for any costs associated with same;

c. Include in the grant a signed acknowledgement that the board is not guaranteeing the efficacy of any such grant and that the unit owner does not rely on the board and accepts fully the risk associated with the contemplated construction and agrees to pay to remove same and restore the common area should a court determine the construction violates the law; and

d. include in the grant an acknowledgement by the unit owner of its responsibility to pay any costs incurred by the association in connection with the improvement

There are many other issues of concern associated with a unit owner performing construction on the common area including the need to ensure the construction is good and workmanlike, insuring the structure during building operations, liability and workers' compensation insurance, architectural integrity, etc. which go beyond the simple exercise of the power to grant the easement or create the limited common area-and go beyond the subject matter of this article-which should be reviewed in detail with counsel in connection with any such undertaking. 

Originally posted December 5, 2017 on tlawmtm.com:

http://lawmtm.com/appeals-court-requires-unanimous-unit-owner-consent.html

Chris is a founding member of Moriarty Troyer & Malloy LLC and brings nearly fifteen years of litigation and trial experience in the areas of community association, real estate and complex construction law. Chris’s practice also focuses on condominium construction defect and transitional litigation at the trial and appellate level of the state and federal courts as well as in various alternative dispute resolution forums.

In his condominium and real estate practice Chris represents residential and mixed-use condominiums, homeowner associations and property management companies in a broad range of matters and provides advice on operational and governance issues, interpretation and amendment of governing documents, rules and bylaw enforcement, developer transition issues and common area disputes. Chris also manages the firm’s common area lien enforcement practice.

Chris represents a wide variety of clients including condominium and homeowner associations, building owners, developers, general contractors, construction managers, subcontractors and suppliers in all aspects of construction transactions, disputes and litigation including defective work claims, breach of contract, and violations of M.G.L. c. 93A. Chris has expertise with disputes involving both public and private construction projects and has extensive experience with complex multi-party construction defect litigation.

Cracks in the Law of Sidewalks

By  Edward M. Bloom

Under Massachusetts common law in effect since 1860, property owners have no duty to repair or warn of hazards on an abutting public sidewalk.

This long-established rule was recently addressed by the Massachusetts Appeals Court in Halbach v. Normandy Real EstatePartners. In this case, the plaintiff, Halbach, suffered serious injuries as a result of his fall on uneven payment on the public sidewalk adjacent to the John Hancock Garage, a commercial parking garage on Clarendon Street in Boston. Halbach sued the owners of the garage and its property manager, claiming that the defendants were negligent in their “ownership, control, maintenance and/or inspection” of the sidewalk and their “failure to keep … the walkway free from defects and conditions rendering it unsafe.” Defendants were granted summary judgment by the trial judge based on the long-standing Massachusetts rule, referred to above.

On appeal, the trial judge’s ruling was upheld by the Massachusetts Appeals Court, even though there was evidence that the property manager corrected the uneven pavement after Halbach’s fall. In a concurring opinion, Judge Milkey suggested that the SJC might want to alter the common law rule, and stated that his separate opinion was written “to note that the plaintiffs have a more forceful case for such change in the law than the majority opinion suggests.”

Judge Milkey, while conceding that public sidewalks are treated as part of the public highways, and that town ways shall be kept in repair at the expense of the town where they are situated, cited the fact that municipalities regularly look to private property owners to keep sidewalks adjacent to their property free from snow and ice so that they are passable and safe. In addition, he pointed out that most commercial property owners accept responsibility for adjoining public sidewalks, as evidenced by the property manager’s repair of the sidewalk after Halbach’s accident. “In short, at least in the context of commercial property, the reality is that the world principally looks to private property owners to make sure that the sidewalks bordering their property are safe. It is far from self-evident why – under modern tort principles – the law should not follow suit.”

Despite Judge Milkey’s ardent recommendation that the SJC reconsider the common law rule regarding public sidewalks, the SJC denied further appellate review this past April.

So where does this leave individuals like Halbach who are injured on public sidewalks? Under G.L.c. 84, §15, the maximum recovery for a private party against a Massachusetts city or town for injuries due to a defect on public ways is $5,000.00. On the other hand, many cities and towns like Boston have enacted ordinances requiring owners to clear snow and ice from the abutting public sidewalks. What if the individual is injured because an abutting owner failed to keep the sidewalk free from snow and ice in violation of a municipal ordinance requiring its removal? While generally a violation of a statute or ordinance is evidence of negligence, it has been held that ordinances which require abutting owners to remove snow and ice from sidewalks are for the benefit of the community at large and not for persons who fall as a result of unremoved snow and ice. “Any obligation imposed by the ordinance runs to the municipality and not a member of the travelling public.” Gamere v. 236 Commonwealth Ave. Condominium Assn, 19 Mass. App. Ct. 359,361 (1985).

Unless the SJC has a change of heart and revises the existing common law, as suggested by Judge Milkey, it would seem that the best way to provide relief to individuals like Halbach would be for the Legislature to enact a statute imposing responsibility for the repair and maintenance of public sidewalks on abutting owners, or at least on commercial owners. Such legislation could be challenged because, according to the Gamere case, it is the responsibility of cities and towns to keep the public ways in reasonably safe condition for travelers and that duty may not be delegated to others. Alternatively, the Legislature could amend G.L.c. 84, §15 either to increase the maximum recovery permitted to injured individuals or to abolish altogether the $5,000.00 cap that currently exists.

Given the current shortfall of revenues for the Commonwealth and its various cities and towns, the travelling public should best traverse carefully over those cracks and defects in public sidewalks.

Originally posted June 5, 2017 on the Sherin and Lodgen  Blog.

http://www.sherin.com/real-estate/2017/06/05/cracks-in-the-law-of-sidewalks/

A former president of the Association, Ed Bloom is a partner at Sherin and Lodgen LPP, practicing in the firm’s Real Estate Department. He concentrates on development, sale, leasing, and mortgaging of residential, office, shopping center, industrial, and condominium properties. Ed can be contacted by email at embloom@sherin.com.