New England Legal Foundation
  • Home
  • About
    • Mission & History
    • Annual Reports
    • Board of Directors
    • State Advisory Councils >
      • Connecticut
      • Maine
      • Massachusetts
      • New Hampshire
      • Rhode Island
      • Vermont
    • Trustees
    • Members
    • Staff
    • Job & Internship Opportunities
  • News & Events
  • Docket
  • Briefs
  • Donate
  • Contact

Queler v. Trustees of Bishops Forest Condominium Trust

2/26/2003

 
Validity under the Condominium Statute of the Developers’ Reservation in the Master Deed of a Right to Remove Property

This case related to the enforceability of a developer’s rights to withdraw land from a phased condominium development in the event that the developer does not complete the development in the anticipated time frame.  The Massachusetts Condominium Act provides that, once dedicated, common areas may not be divided.  Mass. Gen. L. c. 183A, §5(c).  This ensures that unit owners’ percentage shares in the common areas (and consequently their proportionate share of condominium fees) are not altered without amending the condominium documents after the master deed is recorded.  For similar reasons, the Act further provides that property may not be removed from the condominium without the approval of 75% of the unit owners.  These provisions are intended to prevent a developer from changing the condominium’s basic allocation of rights after the developer has sold some of the units to entice later purchasers to buy.  Despite these specific provisions, the Massachusetts Supreme Judicial Court has acknowledged the legitimacy of phased condominium developments as a matter of statutory interpretation.  The SJC recognized that c. 183A does not explicitly provide for phased developments, while a number of other states and the Uniform Condominium Act do include explicit phasing provisions in their condominium statutes.  However, an Appeals Court decision, Levy v. Reardon, raised a question as to the ability of developers to remove subsequent phases of a condominium even if the terms of the removal are explicitly included in the master deed.

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  The developer’s successor subsequently created a second condominium on the withdrawn land.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, was 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 supported the owners of the second condominium, arguing that the removal right was legitimately created.  NELF also argued 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.  The SJC agreed with NELF, confirming the validity of “contractable condominiums” as a form of phased condominium development and the flexible intent of the Massachusetts condominium statute.


Comments are closed.

    The Docket

    To obtain a copy of any of NELF's briefs, contact us at info@nelfonline.org.

    Categories

    All
    1st Circuit Court Of Appeals
    2nd Circuit Court Of Appeals
    3rd Circuit Court Of Appeals
    Business Litigation Session
    CT
    CT Superior Court
    CT Supreme Court
    Employer Employee Relationships
    February 2018
    February 2019
    Government Regulation/Administration Of Justice
    MA
    MA Appeals Court
    MA Division Of Administrative Law Appeals
    March 2015
    MA Superior Court
    MA Supreme Judicial Court
    MA US District Court
    ME
    ME Supreme Judicial Court
    NH
    NH Supreme Court
    Property Rights
    RI
    RI Supreme Court
    SCOTUS
    United States Supreme Court
    US Court Of Appeals Federal Circuit
    US District Court ME
    VT
    VT Supreme Court

    RSS Feed

    Archives

    August 2020
    June 2020
    January 2020
    June 2019
    April 2019
    October 2018
    June 2018
    February 2018
    October 2017
    October 2016
    June 2016
    February 2016
    October 2015
    June 2015
    March 2015
    October 2014
    June 2014
    February 2014
    October 2013
    June 2013
    February 2013
    October 2012
    June 2012
    February 2012
    October 2011
    June 2011
    February 2011
    October 2010
    June 2010
    February 2010
    October 2009
    February 2009
    October 2008
    June 2008
    February 2008
    October 2007
    June 2007
    October 2006
    June 2006
    February 2006
    October 2005
    June 2005
    February 2005
    October 2004
    June 2004
    February 2004
    October 2003
    May 2003
    February 2003
    September 2002
    May 2002
    February 2002
    May 2001