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18-P-288                                              Appeals Court

  MICHAEL RAUSEO, trustee,1     vs.   BOARD OF ASSESSORS OF BOSTON.


                             No. 18-P-288.

        Suffolk.      October 11, 2018.   -   November 26, 2018.

           Present:   Green, C.J., Hanlon, & Maldonado, JJ.


Taxation, Appellate Tax Board: appeal to Appeals Court.
     Condominiums, Master deed, Parking, Common area.


    Appeal from a decision of the Appellate Tax Board.


     Douglas M. Kiernan for the taxpayer.
     Adam Cederbaum, Assistant Corporation Counsel.
     Peter Antell, for Karen Gacicia & another, amici curiae,
was present but did not argue.


    GREEN, C.J.       This appeal presents the question whether

parking easements reserved by a condominium developer in the

documents establishing the condominium, freely alienable and not

appurtenant to any condominium unit, are (as the defendant board

of assessors contends) subject to taxation as real property, or

(as the plaintiff contends) ineligible for such taxation under


    1   Of the Broad/Franklin Development Trust.
                                                                   2


G. L. c. 183A, § 14, because they are already taxed as part of

the condominium common areas.   The Appellate Tax Board agreed

with the defendant, affirmed the denial of the plaintiff's

applications for abatement, and the plaintiff appealed.   We

affirm.

    Background.    By condominium master deed dated February 15,

2006, and duly recorded with the Suffolk County registry of

deeds, certain land and buildings located at 80 Broad Street in

Boston were submitted to the provisions of G. L. c. 183A to form

the Folio Boston Condominium (condominium).   The condominium

contains ninety-nine units, of which ninety-six are residential

and three are commercial.   As required by G. L. c. 183A, § 8,

the master deed included, among other information, the unit

designation of each unit; a statement of each unit's location,

approximate area, and number of rooms, and the immediate common

area to which it has access; and a description of the common

areas and facilities and the proportionate interest of each unit

therein.

    Section 4(c)(ii)(a) of the master deed describes the

"condominium parking area," including the "parking easements"

located therein.   In particular, the declarant under the master

deed "reserves to itself and its successors and assigns and its

or their designees, the exclusive right and easement from time

to time to sell, convey, lease, rent or license easements for
                                                                     3


each of the Parking Spaces (the 'Parking Easements;'

individually, a 'Parking Easement')."    That section further

provides that the declarant may sell, lease, or otherwise convey

parking easements to unit owners or others, and that the parking

easements shall be easements in gross.    Parking easement owners

also may convey any parking easement(s) they hold to unit owners

or to nonunit owners, entirely separate from any interest in a

condominium unit.   The parking easements themselves are not

appurtenant to any unit in the condominium, and do not relate to

a designated parking space.2   The "condominium parking area" is

described as located within certain specified limited common

areas of the condominium.   Section 4(c)(ii)(d) provides that, in

the event the condominium is removed from the provisions of

G. L. c. 183A, the parking easements will be deemed

extinguished, but that the owners of the parking easements will

be entitled to any insurance proceeds, eminent domain proceeds,

or other financial remuneration obtained upon termination of the

condominium and attributable to the parking easements.     Parking

easement owners bear all risk of loss arising from their

easement interest, and they agree to indemnify, defend, and hold

the condominium unit owners association harmless against all




     2 All parking in the condominium parking area is by valet,
and no owner or user of a parking space is allowed to retrieve a
vehicle from the parking area, except through the valet service.
                                                                    4


claims arising therefrom.   All expenses associated with the

parking easements are borne by parking easement owners and are

not charged to condominium unit owners as part of common area

expenses.   Conversely, parking easement owners make no

contribution to common area expenses, other than those

attributable to the parking area.

     By letter dated October 22, 2002, the Department of Revenue

issued a letter to the defendant, authorizing it to assess

separately from condominium units any easements in condominium

parking areas that are easements in gross and not appurtenant to

any condominium unit.   The defendant thereafter apparently began

assessing such parking easements as separate property interests;

in the present case, at least, the defendant assessed and taxed

thirteen parking easements owned by the plaintiff, and the

plaintiff filed for abatements.     The defendant denied the

plaintiff's applications for abatement, and the plaintiff

appealed to the Appellate Tax Board, which affirmed the denials.3

This appeal followed.

     Discussion.   Our role on review of a decision by the

Appellate Tax Board is well settled:     "[w]e will not modify or




     3 In its abatement applications and in its appeal, the
plaintiff challenged only the defendant's treatment of the
parking easements as taxable interests separate from the
condominium common areas, and not the valuations of those
easements.
                                                                    5


reverse a decision of the board if the decision is based on both

substantial evidence and a correct application of the law."

Boston Professional Hockey Ass'n, Inc. v. Commissioner of

Revenue, 443 Mass. 276, 285 (2005).   "Although the proper

interpretation of a statute is for a court to determine, we

recognize the [tax] board's expertise in the administration of

tax statutes and give weight to the [tax] board's

interpretations."   Adams v. Assessors of Westport, 76 Mass. App.

Ct. 180, 183 (2010), quoting Raytheon Co. v. Commissioner of

Revenue, 455 Mass. 334, 337 (2009).   The facts in the present

case are undisputed, and we are solely concerned with the

question whether the Appellate Tax Board correctly interpreted

the law.

    "We begin our discussion by recognizing that under common

law, a property owner has the right to impose limitations or

conditions on an estate that is conveyed to another . . . ."

Queler v. Skowron, 438 Mass. 304, 310 (2002).   "A condominium is

created by a 'declarant' who records a master deed that

'submits' land to the provisions of G. L. c. 183A."   Id. at 311.

In imposing conditions or limitations on property submitted to

G. L. c. 183A, "there is nothing in § 5 (c) [of that chapter]

that prohibits the declarant of a phased development from

retaining such an interest by operation of the master deed

itself."   Id. at 313.   See CBK Brook House I Ltd. Partnership v.
                                                                    6


Berlin, 64 Mass. App. Ct. 913, 913-914 (2005).   And the right to

impose limitations on the interests submitted to the condominium

form of ownership under the master deed is not limited to the

retention of the right to withdraw land from the condominium

ownership rather than proceed with the development of planned

phases; "[i]n Commercial Wharf E. Condominium Ass'n v.

Waterfront Parking Corp., [407 Mass. 123,] 128-130 [(1990), the

Supreme Judicial Court] . . . concluded that a developer

properly could retain an interest in land described in the

master deed, but by doing so, . . . 'its retention does not

constitute a division of the common area'" in violation of G. L.

c. 183A, § 5 (c).   Queler, supra.

     The retained interest at issue in Commercial Wharf E.

Condominium Ass'n, 407 Mass. at 125, was an easement for

parking, established by a "Declaration of Covenants and

Easements" recorded immediately prior to the recording of the

master deed establishing the condominium.   Similarly, in CBK

Brook House I Ltd. Partnership, 64 Mass. App. Ct. at 913, the

condominium declarant retained an affirmative easement for

parking spaces located within a transient garage.4   In each case,

the court recognized the validity of the retained interests


     4 The reservation of interest in CBK Brook House I Ltd.
Partnership was made by amendment to the master deed, recorded
before any units had been conveyed. See 64 Mass. App. Ct. at
913.
                                                                   7


against a claim that the rights properly should be considered

part of the condominium common areas, so that their retention

constituted an impermissible division of the common areas in

violation of G. L. c. 183A, § 5 (c).   See Commercial Wharf E.

Condominium Ass'n, supra at 129-130; CBK Brook House I Ltd.

Partnership, supra at 913-914.

     Taken together, Commercial Wharf E. Condominium Ass'n,

Queler, and CBK Brook House I Ltd. Partnership make plain that

an easement in gross for parking, reserved by a condominium

declarant from the interests submitted under a master deed to

the condominium form of ownership pursuant to G. L. c. 183A, is

not a part of the condominium common areas.   It follows that

such an easement is subject to taxation as an interest separate

from the units in the condominium.5




     5 That the easement is a nonpossessory interest does not
derogate from its status as a present interest in real property.
See, e.g., Davisson v. Commissioner of Revenue, 18 Mass. App.
Ct. 748, 752 (1984). Neither party has raised any question
whether an easement may be taxed as a separate interest,
directly to the easement holder, rather than as an element of
the value of the land comprising the servient estate burdened by
the easement. We accordingly do not consider the question,
other than to observe that it would make little practical
difference in the present case inasmuch as the master deed
provides that any taxes on the value of the parking easements
imposed on the organization of unit owners would be passed
through to the parking easement holders. But see Hamilton Mfg.
Co. v. Lowell, 185 Mass. 114, 118 (1904) (easement for railway,
terminable upon occurrence of contingency, not taxable to
easement holder instead of fee owner). See generally Worcester
v. Boston, 179 Mass. 41, 48 (1901).
                                                                    8


    First Main St. Corp. v. Assessors of Acton, 49 Mass. App.

Ct. 25 (2000), on which the plaintiff relies, is not to the

contrary.   In that case, we held that a reservation of

development rights by a condominium declarant did not constitute

a taxable present interest in real property, based in part on

the conclusion that the land subject to those development rights

was a part of the common areas of the condominium.    Because the

land was part of the condominium common areas, it was taxed as

such, and as appurtenant to the condominium units, pursuant to

G. L. c. 183A, § 14.   See First Main St. Corp., supra at 28-29.6

See also Spinnaker Island & Yacht Club Holding Trust v.

Assessors of Hull, 49 Mass. App. Ct. 20, 23 (2000).    In the

present case, while the area within which the parking easements

are physically located is a part of the limited common areas of

the condominium, the easements themselves were reserved by the

declarant from the property interests submitted to the

provisions of G. L. c. 183A, are not appurtenant to any

condominium unit, are separately alienable as interests in real

property, and are not (and never were) part of the condominium

common areas.

                                    Decisions of Appellate Tax
                                      Board affirmed.


    6  The court in First Main St. Corp. also observed that, in
any event, future development rights do not constitute a present
interest in real estate. 49 Mass. App. Ct. at 28.
