May 26, 2021
Parking spaces are valuable commodities at condominiums and, as such, they are often the source of controversy among unit owners. Last month, the Appeals Court issued a decision underscoring the importance of a board abiding by the explicit language of the condominium documents when dealing with these commodities – even where the board clearly has the right to assign parking spaces.
Any decision by a condominium board that concerns the distribution of parking spaces is likely to be closely scrutinized by the community’s homeowners. Accordingly, boards are well advised to seek the advice of experienced condominium lawyers when considering the implementation of a parking program – such as the one at issue in the Huntington Wood case.
The Appeals Court – in Allera v. Huntington Wood Condo. Trust, 99 Mass. App. Ct. 1118, 2021 WL 1289844 (2021) (Rule 23.0) – found that the trial court improperly dismissed a unit owner’s claim that a parking program instituted by a condominium association was not fair and equitable, as required by the condominium’s bylaws. The case involves a condominium board’s attempt to implement a parking program that would provide unit owners, who did not have attached garages with corresponding driveways, with licenses to use common area spaces closer to their respective buildings.
Located in Peabody, the Huntington Wood Condominium consists of 255 units in fifty-one buildings, all of which are townhouse-style homes. Some units – such as Mr. Allera’s – have attached garages with a driveway or parking area in front of that garage. Other units have detached garage bays, which hold one vehicle and may only be used by the unit owners. The condominium also has common area off-street parking spaces, which are the focus of the lawsuit.
In the spring of 2018, the board – in response to complaints from unit owners who were frustrated with their inability to park near their units – implemented a parking program that allowed residents without driveway parking available in front of their garages to reserve a parking space for $200 per year. This program allowed residents who did not have their own assigned driveway parking spaces to obtain either a monthly or annual license to use a designated space in the condominium’s common areas.
A unit owner, Brian Allera, took exception to the parking program – contending that it was not an equitable solution to address the parking problems at the condominium. Apparently of particular concern to Mr. Allera, who owned a unit with an attached garage, was the fact that the parking program assigned four of the six parking spaces in front of his building to individual unit owners, thus leaving fewer available spaces for the use of Mr. Allera and his guests.
Mr. Allera raised three arguments in challenging the parking program. First, he contended that the program “divided the common areas and affected changes to the intended use of the common areas” in violation of G.L. c. 183A, § 5(b), which provides in pertinent part that “[e]ach unit owner shall be entitled to an undivided interest in the common areas and facilities in the percentage set forth in the master deed.”
In its decision, the Appeals Court noted that it had already considered and rejected this same argument in Sewall-Marshall Condominium Ass’n. v. 131 Sewell Ave. Condominium Ass’n., 89 Mass. App. Ct. 130 (2016). In that case, the Appeals Court found that a parking agreement was a valid contract reflecting the condominium board’s power to deal with the common areas under G.L. c. 183A, § 10. The parties in that case were two condominium associations situated on abutting parcels in Brookline, near Coolidge Corner. When both condominiums were controlled by the same developer, they entered into a written agreement whereby twenty percent of the parking spaces would be reserved for the smaller association, and eighty percent would be reserved for the larger association. After 20 years, the larger association notified the smaller one that it would no longer honor the agreement. The larger association contended that the agreement (i) was invalid as an unrecorded easement, and (ii) altered the percentage of the unit owner’s interest in the common areas, in violation of G.L. c. 183A, § 5(b). The Court found that the parking agreement did not create an easement because it did not create a property interest appurtenant to land. More importantly (with regard to the Huntington Wood case), the Court also found that the parking agreement did not alter the larger association’s unit owners’ percentage interest in the condominium’s common areas such that unanimous consent was required under G.L. c. 183A, § 5(b). The Court reasoned that the parking agreement did not grant exclusive use of the common areas to any unit owner. The Court concluded that “[r]ather than creating an easement or altering interests in the condominium’s common areas, the parking agreement was instead simply an exercise of the boards’ powers under G.L. c. 183A, § 10(b)(1)…‘to lease, manage, and otherwise deal with…[the] common areas.’”
In his second argument, Mr. Allera contended that the board was required to obtain the permission of adjoining owners pursuant to G.L. c. 183A, § 5(b)(2)(ii), which provides in pertinent part as follows:
The organization of unit owners, acting by and through its governing body, shall have the power and authority, as attorney in fact on behalf of all unit owners from time to time owning units in the condominium, except as provided in this subsection, to…[g]rant or designate for any unit owner the right to use, whether exclusively or in common with other unit owners, any limited common area and facility, whether or not provided for in the master deed, upon such terms as deemed appropriate by the governing body of the organization of unit owners; provided, however, that consent has been obtained from (a) all owners and first mortgagees of units shown on the recorded condominium plans as immediately adjoining the limited common area or facility so designated and (b) 51 per cent of the number of all mortgagees holding first mortgages on units within the condominium who have given notice of their desire to be notified thereof as provided in subsection (5) of section 4.
The Appeals Court similarly found this argument to be unavailing, finding that the parking program did not offer a permanent grant of rights, but rather offers a time-limited license to use a designated area. Furthermore, the Appeals Court noted that nothing in the condominium act prohibits the specific provisions contained within the bylaws of the Huntington Wood Condominium. Specifically, the condominium’s bylaws provide as follows:
Subject to the rights of the Grantor pursuant to the Master Deed, the Trustees may from time to time assign additional parking spaces to particular Unit Owners. Such additional parking spaces shall be so assigned for such periods and for such monthly parking charges as the Trustees may in their discretion determine, all such charges to constitute Common Funds upon receipt by the Trust. All such designations and assignments shall be made on a fair and equitable basis, taking into account the reasonable needs of particular unit owners.
The Appeals Court ultimately found merit to Mr. Allera’s third argument that the parking program was not fair and equitable, as prescribed by the bylaw provision referenced above. The Court reasoned that – at least for the purposes of a motion to dismiss – there were material facts at issue as to whether the parking program met the required “fair and equitable” standard. The Court wondered, for example, whether it was fair and equitable for the parking spaces to be licensed to only those unit owners who did not have driveways or garages. The board contended that the purpose of the program was to “create equity among the [u]nit [o]wners and to afford owners with a bay area parking space a similar parking option as [u]nit [o]wners with a driveway and garage attached to their [u]nit.” The Court questioned this reasoning – noting that the unit owners with driveways and garages likely paid a premium for those features. Would it be “fair and equitable” to now provide other unit owners, who presumably paid less for their units, a similar parking option for $200 per year? The Court concluded that – given such questions of material fact as to whether the parking program was fair and equitable – the trial court’s dismissal of Mr. Allera’s lawsuit was inappropriate.
The case has now been remanded and the board now faces protracted litigation in the trial court. Despite possessing the clear authority to assign parking spaces and its apparently well-intentioned effort to address complaints from the unit owners about parking – the Huntington Wood board wound up ensnared in a lawsuit. This case serves as yet another reminder to condominium boards that no good deed goes unpunished.
Any decision by a condominium board that concerns the distribution of parking spaces is likely to be closely scrutinized by the community’s homeowners. Accordingly, boards are well advised to seek the advice of experienced condominium lawyers when considering the implementation of a parking program – such as the one at issue in the Huntington Wood case. A more well-crafted parking program (perhaps one that includes a lottery or application process) would be far more likely to be found “fair and equitable” than a program that imposes a blanket exclusion on an entire class of unit owners.