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15-P-149                                                Appeals Court

 SEWALL-MARSHAL CONDOMINIUM ASSOCIATION vs.         131 SEWALL AVENUE
                    CONDOMINIUM ASSOCIATION.


                             No. 15-P-149.

           Suffolk.     December 11, 2015. - March 1, 2016.

             Present:   Cypher, Wolohojian, & Carhart, JJ.


Condominiums, Parking, Common area. Real Property, Condominium,
     Registered land. Contract, Validity.



     Civil action commenced in the Land Court Department on
March 1, 2007.

    The case was heard by Harry M. Grossman, J.


    Adam P. Whitney for the defendant.
    Edward S. Englander for the plaintiff.


    WOLOHOJIAN, J.      The parties are neighboring condominium

associations in the Coolidge Corner area of Brookline, where

parking is at a premium.     In 1978, when both condominiums were

controlled by the same developers, they entered into a written

agreement concerning the shared use and allocation of parking

spots on their respective properties.        Summarized in broad
                                                                     2


strokes, they agreed that twenty percent of the spots would be

reserved for residents of the plaintiff, the smaller of the two

condominium associations (Sewall-Marshal), and eighty percent

would be reserved for residents of the defendant, the larger one

(131 Sewall), at no cost to either side.     This arrangement

continued for some twenty-eight years until 131 Sewall notified

Sewall-Marshal that it would no longer abide by the agreement.

This suit followed, seeking a declaration concerning the rights

of the parties under the agreement.     In essence, 131 Sewall

contends that the agreement is unenforceable because it fails to

comply with various provisions of G. L. c. 183A, the statute

that enables the creation of condominiums, and because it is

otherwise an unconscionable contract.     After a bench trial, a

judge of the Land Court sitting by designation in the Superior

Court disagreed and entered a declaratory judgment in favor of

Sewall-Marshal.   We affirm.

    Background.    The judge's findings have not been shown to be

clearly erroneous, and we summarize them here.     The parties are

condominium associations situated on abutting parcels of

registered land in Brookline, near Coolidge Corner.     Both

associations were created in 1978, pursuant to the provisions of

G. L. c. 183A, and their master deeds and by-laws were

registered with the Norfolk registry district of the Land Court

(registry district).   With certain exceptions, the organizing
                                                                    3


documents of both entities mirror each other, which is not

surprising given that both properties were developed by the same

owners, Roger and Matthew Stern.

     Roger and Matthew, along with Jeffrey Stern, constituted

the original boards of both condominiums and, pursuant to

various enabling provisions in the by-laws,1 they entered into

the parking agreement in December, 1978, which they executed

under seal.   That agreement provides in relevant part:

     "So long as the 131 Sewall Avenue Condominium and the
     Sewall-Marshal Condominium shall be condominiums
     subject to Chapter 183A . . . Sewall-Marshal
     Condominium shall have the right, without cost, to the
     use of 20% of the total number of parking spaces
     located in both Condominiums, and 131 Sewall Avenue
     Condominium shall have the right, without cost, to the
     use of 80% of the total number of parking spaces
     located in both C[o]ndominiums.

     "The Boards of Managers, or their designees, of the
     two Condominiums shall meet during the month of
     December as necessary to agree upon the particular
     spaces which the Condominiums shall have the right to
     use . . . for the next year."

The agreement was never submitted to registration or otherwise

placed in the record at the registry district.   Some original

unit owners were provided a copy of the agreement with the

condominium documents.   Although shortly after the agreement was

     1
       The by-laws of both condominiums grant their respective
boards the power to "lease[], licens[e] and otherwise allocat[e]
parking spaces to the use of Unit Owners and others . . . ."
The by-laws also expressly authorize each managing board to
enter into an agreement with the other, whereby each "shall have
the right to use parking spaces located within" the other's
property.
                                                                    4


entered into, the by-laws of Sewall-Marshal were amended to

reflect that each unit owner would be allocated the use of a

parking spot pursuant to the parking agreement, the by-laws of

131 Sewall were not.

    There were sixty-two parking spaces between the two

condominiums in 1978, and there are now sixty-eight.     The

majority of these spaces (approximately sixty) are part of 131

Sewall's common area, which includes a parking garage.    The

remaining spaces are part of Sewall-Marshal's common area, and

are all outdoors.    131 Sewall has more units (fifty-one) than

Sewall-Marshal (sixteen).    At the time the condominiums were

created, Brookline zoning ordinances required a minimum of one

parking space per condominium unit.

    It appears that the parties operated under the parking

agreement without incident for close to thirty years.    Then, on

December 14, 2006, 131 Sewall announced to Sewall-Marshal that,

as of February 14, 2007, it would "designate spaces to our own

unit owners," and that "[a]s of February 15, 2007, any vehicle

that is parked on [131 Sewall's] property without a written

agreement for the same . . . will be towed at the vehicle

owner's expense."

    Discussion.     131 Sewall argues that the parking agreement

is unenforceable because of various provisions of the

Massachusetts condominium statute, G. L. c. 183A (Act), which
                                                                     5


has been characterized as "essentially an enabling statute."2

Tosney v. Chelmsford Village Condominium Assn., 397 Mass. 683,

686 (1986).    Specifically, 131 Sewall contends that the parking

agreement was an unrecorded easement and, therefore, ineffective

ab initio, and, further, pointing to § 5(b) of the Act,

that the parking agreement altered the undivided interests of

the unit owners without their consent.    Section 5(b), as in

effect when the condominiums were formed, see St. 1963, c. 493,

§ 1, provides, in part, that "[t]he percentage of the undivided

interest of each unit owner in the common areas . . . as

expressed in the master deed shall not be altered without the

consent of all unit owners, expressed in an amended master deed

duly recorded."   Both arguments fail if for no other reason than

that they rest on incorrect premises:     namely, that the parking

agreement created an easement and that it affected the interests

of the unit owners in the common areas.

     An easement is a property interest appurtenant to land

which allows "one proprietor . . . some profit, benefit, or

beneficial use, out of, in, or over the estate of another

proprietor."   Commercial Wharf E. Condominium Assn. v.

     2
       "Although [the statute] lays out certain minimum
requirements for setting up condominiums, it also provides
planning flexibility to developers and unit owners. Matters not
specifically addressed in the statute should be directed to the
parties to be worked out." Tosney v. Chelmsford Village
Condominium Assn., 397 Mass. 683, 686-687 (1986) (quotation and
citations omitted).
                                                                     6


Waterfront Parking Corp., 407 Mass. 123, 133 (1990), quoting

from Ritger v. Parker, 8 Cush. 145, 147 (1851).     The parking

agreement did not create an easement because it did not create a

property interest appurtenant to land.     Although the agreement

sets the percentage of parking spaces each condominium has the

right to use, it does not assign any particular space to one or

the other condominium, or to any specific unit owner.     There is

no specific property benefited or burdened by the agreement;

accordingly, the parking agreement did not create an easement.3

     Nor did the parking agreement alter 131 Sewall's unit

owners' percentage interest in the condominium's common areas

such that unanimous consent was required under G. L. c. 183A,

§ 5(b).   See Kaplan v. Boudreaux, 410 Mass. 435, 438 (1991).       In

Kaplan, a condominium's governing body executed an amendment to

the condominium's by-laws that allowed one unit owner the

exclusive use of an area that had previously been part of the

condominium's common area.   Id. at 441.   The court held that

because "other unit owners . . . lost all right to use part of

the common property, and one unit owner gained the right to use

it exclusively" the percentage interests in the condominium's

common areas had been altered by the by-law amendment.     Id. at

     3
       131 Sewall's argument that the parking agreement is void
because it was not noted on the condominium's certificate of
title fails for the same reason. The parking agreement does not
create an encumbrance on the land, and therefore the provisions
of G. L. c. 185, §§ 46-47, do not apply.
                                                                     7


443.   The court concluded that the amendment violated G. L.

c. 183A, § 5(b), because unanimous consent by the affected unit

owners had not been obtained before their interests in the

common area were diminished.    Id. at 443-444.   By contrast, the

parking agreement does not grant exclusive use of the

condominium's common areas to any unit owner.     Indeed, the

agreement created a procedure whereby parking space assignments

could be changed each year.    No unit owner's interest in the

common area diminished.

       Rather than creating an easement or altering interests in

the condominiums' common areas, the parking agreement was

instead simply an exercise of the boards' powers under G. L.

c. 183A, § 10(b)(1), inserted by St. 1963, c. 93, § 1, "[t]o

lease, manage, and otherwise deal with . . . [the] common

areas."   See Commercial Wharf E. Condominium Assn., supra at 129

("In G. L. c. 183A, § 10 [b] [1], the Legislature has proclaimed

that the [condominium's governing body], as the owner of the

possessory interest in the condominium land, has the power to

manage and control that land").    Because the Massachusetts

condominium statute does not circumscribe the means by which a

board can exercise this power, the boards here were allowed to

exercise it in whatever lawful way they saw fit.     In this case,

the developers did so by including in the by-laws the power to

enter into a parking agreement with the abutting condominium,
                                                                    8


and then signing a contract that pooled and allocated parking

spaces located on the common areas.    Cf. id. at 129 (prior

recorded developer-created easement did not violate § 10[b][1]).

     The parking agreement is a valid contract, that is, a

bargained-for exchange supported by consideration.4   See

Kirkpatrick v. Boston Mut. Life Ins. Co., 393 Mass. 640, 652

(1985) (O'Connor, J., dissenting).    Each side gave and received

the opportunity to park in the other's parking spots.     This

opportunity was not a chimera; at least one unit in 131 Sewall

has been assigned a parking spot at Sewall-Marshal for at least

twenty years.   See Newhall v. Paige, 10 Gray 366, 368 (1858)

("The law does not undertake to determine the adequacy of a

consideration. . . .   It is sufficient if the consideration be

of some value, though slight, or of a nature which may enure to

the benefit of the party making the promise").    It does not

matter that the benefit may have been greater to the residents

of Sewall-Marshal than to those of 131 Sewall.

     131 Sewall argues that the parking agreement, if a

contract, is an unconscionable one.    "[U]nconscionability must

be determined on a case by case basis, giving particular


     4
       Because the contract here was supported by consideration,
we need not (and do not) address Sewall-Marshal's contention
that consideration was unnecessary because the contract was
executed under seal. See generally Knott v. Racicot, 442 Mass.
314, 320-321 (2004) (discussing the continuing vitality of the
sealed contract doctrine).
                                                                     9


attention to whether, at the time of the execution of the

agreement, the contract provision could result in unfair

surprise and was oppressive to the allegedly disadvantaged

party."   Miller v. Cotter, 448 Mass. 671, 679-680 (2007)

(quotation and citation omitted).    As the same three people

constituted the boards of both condominiums when the contract

was entered into, the parking agreement could hardly result in

unfair surprise to either side.     That the agreement was adhered

to for over twenty years without incident underscores the lack

of surprise.   Finally, when the agreement was executed, 131

Sewall had more parking spaces (sixty) than units (fifty-one).

     131 Sewall urges us to consider provisions of the Uniform

Common Interest Ownership Act (UCIOA) (2008)5 and the Restatement

(Third) of Property:   Servitudes (2000) that it contends would

allow it to terminate the parking agreement.     Neither of these

has been incorporated into our laws,6 and we are not inclined to

adopt them here.   However, even were we to consider them, 131

Sewall would not benefit.   Although the UCIOA and the

Restatement contain provisions meant to deal with the "common


     5
       We note that 131 Sewall cites provisions of the UCIOA as
amended in 2008, notwithstanding that the letter purporting to
revoke the parking agreement was sent in December, 2006.
     6
       The Supreme Judicial Court has, however, referred to the
UCIOA's predecessor statute, the Uniform Condominium Act, as
providing "useful guidelines to a trial judge." Barclay v.
DeVeau, 384 Mass. 676, 685 n.17 (1981).
                                                                   10


problem" of a developer entering into "long-term contracts and

leases with himself or with an affiliated entity" when he is in

control of a condominium's board, UCIOA, 7(IB) U.L.A. § 3-105

comment 1, at 349 (Master ed. 2009); see Restatement (Third) of

Property:   Servitudes, supra at § 6.19, they do not apply here.

    Under § 3-105 of the UCIOA, a condominium board (once it is

controlled by the unit owners) may terminate contracts and

leases made during the period of developer control within two

years of the developer ceding control of the board to the unit

owners, unless the contract is unconscionable, in which case the

unit owner-controlled board may cancel at any time.   UCIOA,

supra at § 3-105(a), (b).   See Restatement (Third) of Property:

Servitudes, supra at § 6.19(3)(d).   Here, the agreement was not

unconscionable, as we have discussed, and 131 Sewall's board did

not seek to terminate the agreement within two years of the

developers transferring control of the board to the unit owners.

    Section 6.19(3) of the Restatement (Third) of Property:

Servitudes, supra, allows the unit owner-controlled board to

terminate, at any time, "(b) any contract or lease between the

[governing body] and the developer, or an affiliate of the

developer; [and] (c) any lease of recreational or parking

facilities."   But the parking agreement is not a lease, and the

agreement was between the two associations; accordingly this

provision does not apply.   We recognize that the boards were
                                                                   11


both controlled by the same three men who were the developers of

the properties.    However, there is no evidence of self-dealing

or benefit to them; they appear to have gotten nothing out of

the arrangement.

    For these reasons, we conclude that the judge did not err

in enforcing the parking agreement as a valid contract.

                                    Judgment affirmed.

                                    Postjudgment order dated
                                      December 31, 2014,
                                      affirmed.7




    7
       The plaintiff purports to cross-appeal from the
postjudgment order. However, as no docketing fee was paid, we
decline to consider the argument. See Marshall v. Stratus
Pharmaceuticals, Inc., 51 Mass. App. Ct. 667, 669-670 (2001),
and cases cited.
