Queler v. Skowron, 438 Mass. 304, 780 N.E.2d 71 (2002).

Owners in Bishops Forest Condominium, which contained the first number phases of a phased condominium, challenged the property rights of the unit owners in Bishops Forest II Condominium, which contained the later phases. A phased condominium development allows a developer to build out a large parcel over time by developing sections of the parcel gradually under the umbrella of the same overall condominium. One type of phased condominium is a “contractable condominium,” where the developer reserves the right to withdraw undeveloped phases for later development if the developer cannot build out the entire project in the initially planned timeframe. The developers structured Bishops Forest as a “contractable condominium,” and later withdrew the undeveloped areas from the condominium as permitted by the condominium documents. The developers’ successor eventually developed the withdrawn land as Bishops Forest II. Relying on a narrow reading of the Massachusetts condominium statute in an Appeals Court case, Bishops Forest claimed that “contractable condominiums” were unlawful and therefore Bishops Forest actually owned Bishops Forest II. The Land Court upheld the validity of Bishops Forest II on narrow grounds, distinguishing the adverse Appeals Court case on its facts. The Supreme Judicial Court took direct appellate review and affirmed on broader grounds. The SJC agreed with NELF that the adverse Appeals Court case should be overruled in its entirety. The SJC confirmed the validity of “contractable condominiums” as a form of phased condominium development and the flexible intent of the Massachusetts condominium statute. In this case the developer provided for a phased condominium in the master deed, reserved a right to withdraw subsequent phases from the condominium and, in fact, withdrew land from the condominium when the developer was unable timely to complete the project.  The developer’s successor subsequently created a second condominium on the withdrawn land.  Disputes later arose over the respective rights of the unit owners of the two condominiums, and this suit resulted.  The first condominium argued that the provisions of the master deed permitting the developer to withdraw the unbuilt phases were void as contrary to c. 183A and that the entire original area of the first condominium, including the land on which the second condominium was built, is owned as common area by the unit owners of the first condominium.  The Land Court ruled that the language used by the original developer was legitimate and allowed the developer to withdraw unbuilt phases of the condominium.  The first condominium owners appealed and the SJC took direct appellate review.  NELF will support the owners of the second condominium, arguing that the removal right was legitimately created.  NELF will also argue that, as a matter of public policy, developers should be able to manage the risks of large scale condominium development by reserving a right to withdraw unbuilt phases, so long as the master deed clearly puts the unit owners on notice of that right.