Real property – Condominium – Parking

Listen to this article

Where a plaintiff owner of a condominium unit filed a complaint challenging an off-street parking program implemented by the condominium board of trustees, a judgment dismissing the complaint should be reversed as to the plaintiff’s claim that the parking program was not fair and equitable as required by section 6.46 of the bylaws.

“The plaintiff, Brian Allera, timely appeals from an order allowing the defendant’s motion to dismiss. …

“The Huntington Wood Condominium (condominium) consists of 255 units in fifty-one buildings, all of which are townhouse-style homes in Peabody. Some units, including Allera’s, have attached garages, in which case there is also a driveway or parking area in front of the 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 (parking spaces); these parking spaces are at issue here.

“Prior to 2018, the parking spaces were available on a first come, first served basis. In 2018, the condominium board of trustees (board) implemented a parking program by which unit owners with a bay garage could request a parking space near their building. Requested spaces were assigned on a first come, first served basis for $200 per space for one year, or $20 per month up to $200, and required the unit owner to sign a parking space license and agreement (license). The fees generated by the parking program were common funds, ‘held by the [t]rust on behalf of all [u]nit [o]wners’ for common purposes.

“The license form provided that payments for a parking space were ‘for use and occupancy only’ and ‘shall not create a tenancy.’ It further provided that ‘this is a license to park … it is not a lease, and no interest in real estate is granted.’ Either the board or the licensee can terminate the license at any time, with thirty days’ written notice. …

“Allera contends first that the parking program ‘divided the common areas and affected changes to the intended use of the common areas’ in violation of G.L.c. 183A, section5(b). The discussion of a similar claim in Sewall-Marshall Condominium Ass’n v. 131 Sewall Ave. Condominium Ass’n, 89 Mass. App. Ct. 130 (2016), disposes of Allera’s argument. …

“Allera’s second argument, that the board was required to obtain the permission of adjoining owners pursuant to G.L.c. 183A, section5(b)(2)(ii), fares no better. …

“Dismissal of Allera’s third claim, that the parking program was not fair and equitable as required by section 6.46 of the bylaws, was not correct on this record. Because the parking program was exclusively available to unit owners with a bay garage, Allera has presented sufficient factual allegations to raise his ‘right to relief above the speculative level’ (citation omitted). … The trust responds that the purpose of the parking 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 flaw in this contention, at least for purposes of a motion to dismiss, is that the unit owners bought what they bought, and that did not include similar parking to the unit owners with attached garages. The motion judge did not address this argument, and we conclude that there are material facts at issue. For example, the record does not state how many units have attached garages and how many have bay garages, how many parking spaces are affected by the parking program, the market value of the different types of units, any reduction in value of a unit with an attached garage with fewer available parking spaces, or whether the cost of $200 per year is a fair market value price. On the record before us, we therefore lack the information necessary to conclude that a parking program available to only some unit owners because of a buying choice they made is fair and equitable as a matter of law.

“For the reasons set forth above, so much of the order dated August 11, 2020, as dismisses Allera’s claim that the parking program was not fair and equitable is reversed. In all other respects, the order is affirmed.”

Allera v. Huntington Wood Condominium Trust (Lawyers Weekly No. 81-049-21) (8 pages) (Docket No. 20-P-1251) (April 7, 2021).

Click here to read the full text of the opinion.