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16-P-1143                                              Appeals Court

     MANUEL J. CALVAO & another 1     vs.   KATHLEEN E. RASPALLO.


                              No. 16-P-1143.

         Barnstable.       May 31, 2017. - September 29, 2017.

             Present:     Green, Wolohojian, & Ditkoff, JJ.


Condominiums, Common area, Master deed. Real Property,
     Condominium, Restrictions. Practice, Civil, Summary
     judgment.


     Civil action commenced in the Superior Court Department on
December 14, 2011.

     The case was heard by Christopher J. Muse, J., on a motion
for summary judgment, and a motion for equitable relief,
assessment of damages, and entry of final judgment was heard by
him.


     Peter S. Farber for the defendant.
     Brian J. Wall for the plaintiffs.


     DITKOFF, J.       The defendant, Kathleen Raspallo, appeals from

a Superior Court judgment requiring her, inter alia, to remove

an addition she constructed on condominium common area assigned


     1
         Brenda E. Calvao.
                                                                   2


to the exclusive use of her unit.    Construing G. L. c. 183A,

§ 5, we determine that a unit owner may not annex exclusive use

common area 2 to her unit without the unanimous consent of the

other unit owners holding a legal interest in that common area.

Discerning no error in the judge's other conclusions, we affirm.

     1.    Background.   We summarize the relevant facts of this

case as presented to the judge on motion for summary judgment

and the subsequent equitable relief hearing.    The Tall Pines

Condominium in the town of Dennis consists of two units

separated by approximately thirty-two feet.    Manuel and Brenda

Calvao own unit 1, and Kathleen Raspallo owns unit 2, which she

has used as her full-time residence since she purchased it in

2003.    The vast majority of the common area is designated for

the exclusive use of one or the other unit.    The master deed

grants unit 1 forty-six percent of the beneficial interest in

the condominium and unit 2 fifty-four percent of the beneficial

interest.

     In 2011, Raspallo began renovations on her unit, which

included an approximately 111 square foot addition built on

common area designated for her exclusive use.    In order to

acquire the necessary permits from the town, Raspallo had the

     2
       We use the phrase "exclusive use common area" to refer to
"limited common areas and facilities," as defined by G. L.
c. 183A, § 1, that are assigned for the exclusive use of a
single unit.
                                                                     3


condominium developer, Robert David, who was the sole

condominium trustee, unilaterally appoint Raspallo as the sole

trustee.   Despite the Calvaos' objections, Raspallo obtained the

permits and completed renovations in 2012.    The Calvaos promptly

filed the present action in Superior Court, both on their own

behalf and derivatively for the condominium board of trustees.

     On motion for summary judgment, the judge determined that

the master deed prohibited David from appointing Raspallo as

trustee in 2011 without the Calvaos' consent. 3   The judge found

Raspallo liable for her unilateral actions and ordered the

parties to have meaningful discussions regarding the appointment

of a new trustee and the issue of waste and undue hardship

before the judge determined a remedy.    While the parties were

discussing a resolution the court appointed a mutually agreed

upon trustee.   Ultimately, the parties were unable to reach a

resolution and at the subsequent remedy hearing the judge

ordered the removal of the addition.    The judge also concluded

that the master deed limits the use of unit 2 to seasonal

occupation, enjoined Raspallo from year-round residence, and

awarded the Calvaos $36,291.53 in attorney's fees.


     3
       Raspallo now agrees that this ruling was correct and,
therefore, Raspallo was never a lawful trustee. The Calvaos
agree that, as a result, Raspallo never owed a duty as trustee,
and we need not address the Calvaos' breach of fiduciary duty
claim.
                                                                       4


     2.   Standard of review.      We review the grant of summary

judgment on liability de novo to decide "whether, viewing the

evidence in the light most favorable to the nonmoving party, all

material facts have been established and the moving party is

entitled to a judgment as a matter of law."       Karatihy

v. Commonwealth Flats Dev. Corp., 84 Mass. App. Ct. 253, 255

(2013), quoting from Augat, Inc. v. Liberty Mut. Ins. Co., 410

Mass. 117, 120 (1991).       A decision involving the "imposition of

equitable remedies" rests with the trial judge and is subject to

review only for an abuse of discretion.       Cavadi v. DeYeso, 458

Mass. 615, 624 (2011), quoting from Demoulas v. Demoulas, 428

Mass. 555, 589 (1998).

     3.   Discussion.   a.    Condominium addition.   Expansion of a

condominium unit into a common area requires the unanimous

consent of all condominium owners, regardless of whether the

master deed purports to allow such an expansion with the consent

only of the condominium trustees.      See G. L. c. 183A,

§ 5(b)(1); 4 Strauss v. Oyster River Condominium Trust, 417 Mass.

442, 445 (1994).   The question presented here is whether this

     4
       General Laws c. 183A, § 5(b)(1), as appearing in St. 1998,
c. 242, § 5, states, "The percentage of the undivided interest
of each unit owner in the common areas and facilities as
expressed in the master deed shall not be altered without the
consent of all unit owners whose percentage of the undivided
interest is materially affected, expressed in an amendment to
the master deed duly recorded," with some exceptions not
relevant here.
                                                                   5


principle applies where the common area in question is dedicated

pursuant to the master deed for the exclusive use of the

encroaching owner.   If this principle does not apply, Raspallo

could have built her addition with the consent of the trustee

and, she argues, she should be able to ask the newly appointed

trustee for retroactive approval.   We conclude that the

requirement for unanimous consent applies in this circumstance.

     "The condominium is a form of property ownership in which

the unit owner retains an exclusive fee interest in his

individual unit in addition to an undivided interest with all

other unit owners in the condominium's common areas and

facilities."   Golub v. Milpo, Inc., 402 Mass. 397, 400 (1988).

Raspallo's view would allow condominium trustees unilaterally to

eliminate an owner's undivided interest in portions of the

common areas, thus negating the essence of condominium

ownership.

     The amendments to G. L. c. 183A, § 5, in 1994, see St.

1994, c. 365, and 2014, see St. 2014, c. 483, fortify our view.

These amendments, enacted in response to Kaplan v. Boudreaux,

410 Mass. 435, 443 (1991), permit the condominium trustees to

grant any unit owner exclusive use of any portion of the common

area without the unanimous consent of the unit owners.     See
                                                                    6


G. L. c. 183A, § 5(b)(2)(ii), 5(c). 5   Were we to adopt Raspallo's

view, the 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.   See G. L. c. 183A, § 4; Golub, supra.

Instead, we recognize that a unit owner has legal ownership of

the common areas, whether or not they are for the exclusive use

of another unit, and cannot be deprived of that ownership

without her consent.   Regardless of whether there is a practical

benefit to the legal interest that the Calvaos hold in

Raspallo's exclusive use common land, Raspallo may not

unilaterally assert fee simple ownership over it.    See Strauss,

417 Mass. at 445.

     As the trustee cannot, as a matter of law, consent to

Raspallo's expansion, the judge properly exercised his

discretion to determine the proper remedy for Raspallo's

unlawful addition.   The judge weighed the fact that "Raspallo

flaunted her obligation to get prior approval of the other unit

owner," the feasibility of removing the addition for

"significantly less than" $30,000, and the substantial change

the addition works to the character of the collective premises.


     5
       The 2014 amendment allows condominium trustees to grant
easements or limitations on the use of common area without
amending the master deed or site plan. See St. 2014, c. 483.
                                                                      7


We discern no abuse of discretion in the trial judge's

determination that equities here favored removal of the

addition.    See Calci v. Reitano, 66 Mass. App. Ct. 245, 251-252

(2006); Brandao v. DoCanto, 80 Mass. App. Ct. 151, 159 (2011).

     b.   Seasonal use.   General Laws c. 183A permits the

imposition of reasonable restrictions on the use of units, "and

persons who contemplate acquisition of a condominium unit can

choose whether to buy into those

restrictions."    Woodvale Condominium Trust v. Scheff, 27 Mass.

App. Ct. 530, 533–534 (1989).    See G. L. c. 183A, § 4(1).   Here,

§ 7 of the master deed states that, "except for Unit 1 [the

Calvaos' unit], which may be occupied on a year round basis, no

Unit may be occupied between November 30th of one year and March

15th of the succeeding year, except that Owners may occupy Units

during said period during weekends, holidays and for customary

second home recreational use."    The seasonal use restriction

unambiguously prohibits Raspallo's year round use.    Raspallo

purchased her unit subject to her compliance with the master

deed and cannot now claim the right to occupy her unit year

round.    The judge acted within his discretion by enforcing the

express provisions of the master deed and enjoining Raspallo

from using her condominium as a year round residence.
                                                                     8


     c.   Attorney's fees.    The Calvaos brought this suit as a

derivative action on behalf of the condominium board of

trustees. 6   "A derivative suit is brought where the management of

an association of condominium unit owners has failed or refused

to redress a wrong committed against that association. . . .

The wrong complained of must have been committed against the

association itself, not the member of the association."       Cote

v. Levine, 52 Mass. App. Ct. 435, 439 (2001).     The judge found

that Raspallo's exterior additions "substantially changed the

inherent structure and character of [Raspallo's] unit and

transformed the character of the collective premises."       We

discern no clear error in the judge's findings.     See Klairmont

v. Gainsboro Rest., Inc., 465 Mass. 165, 183 (2013).

     General Laws c. 183A, § 6(a)(ii), provides:     "If any

expense is incurred . . . as a result of the unit owner's

failure to abide by the requirements of [the statute] or the

requirements of the master deed, trust, . . . or by the

misconduct of any unit owner," the condominium organization may

assess the expense, including attorney's fees, "exclusively

against the unit owner."     As the Calvaos vindicated the


     6
       Raspallo argues that their derivative action does not
comply with the pleading requirements of Mass.R.Civ.P. 23.1, 365
Mass. 768 (1974), which requires a verified complaint containing
certain specified information, but she failed to preserve her
procedural objection below.
                                                                   9


condominium board's rights and the statute allows the assessment

of attorney's fees in such matters, the judge acted within his

broad discretion in assessing fees.    See Brady v. Citizens Union

Sav. Bank, 88 Mass. App. Ct. 416, 420 (2015).

     4.   Conclusion.   The judgment is affirmed.   The order

denying the motion for additional findings of fact, for

reconsideration, and for amendment of the judgment dated May 3,

2016, is affirmed.

                                      So ordered.
