Jul 29, 2021
Anyone living and working in the condominium field quickly learns that there are many unresolved issues and questions of law that arise. In Pisano v. Thunberg, No. 18 MISC 000448 (RBF), 2021 WL 2656937 (Mass. Land Ct. June 28, 2021) (Foster, J.) (Pisano), the Land Court was faced with an unresolved issue and a dearth of case law. The question it faced was whether condominium unit owners may obtain title by adverse possession over common areas of a condominium, adding that area to their unit, or whether such a claim is barred by the Massachusetts Condominium Act, G.L. c. 183A (Act). Relying principally upon § 5 of the Act, the Land Court answered the first question in the negative, holding that such a claim is prohibited. A Notice of Appeal has already been filed, indicating that the Massachusetts Appeals Court may soon be required to determine whether the Land Court’s decision is proper.
From a practical perspective, the Land Court decision should be welcome news for condominiums boards, associations and management companies, which already have a slew of issues to deal with arising in common ownership communities.
Many people have a general familiarity with the concept of adverse possession, the elements of which are well-settled. In Massachusetts, a person can acquire title to recorded real property “by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years.” Sea Pines Condo. III Ass’n v. Steffens, 61 Mass. App. Ct. 838, 847 (2004), quoting Lawrence v. Concord, 439 Mass. 416, 421 (2003). “The burden of proof in any adverse possession case rests on the claimant and extends to all of the necessary elements of such possession.” Id., citing Holmes v. Johnson, 324 Mass. 450, 453 (1949).
In Pisano, the owners of Unit C at the seven-unit Bradford Acres Condominium in Provincetown (Condominium) asserted a claim for adverse possession of a portion of the Condominium’s common areas against the Board of Trustees of the Bradford Acres Condominium Trust. The Condominium’s Master Deed provides that each unit has exclusive use of an abutting porch, but that the yards extending beyond the porches are part of the common areas. Upon taking ownership of their unit in 2002, the owners were informed that Unit C’s deck extended onto the common areas and had done so for a period of at least ten (10) years. The new owners continued their use of the deck. The owners’ use of the deck was open and notorious and, in fact, the owners of Units B, D, and G had similarly extended their use beyond their porches and onto the common areas.
Faced with competing dispositive motions, the Land Court started its analysis with the Act’s language to ascertain whether “the Legislature intended that unit owners be barred from obtaining title to common areas by adverse possession.” Pisano, 2021 WL 2656937, at *4. Recognizing that a “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), the Court cited the provisions of § 5 of the Act and concluded that “a scheme of common ownership of common areas … is antithetical to adverse possession by one of the unit owners.” Id. at *4-5. “Section 5 is unambiguous: it mandates that each unit owner is entitled to a proportional, undivided interest in common areas in roughly the same percentage as their unit interest in the condominium … , that the common areas must remain undivided and cannot be partitioned … , and that the unit owners’ percentage interests in the common areas can only be modified by the consent of all the unit owners.” Id. at *5.
In reaching its conclusion, the Land Court relied upon fundamental principles of common ownership – noting that unit owners “voluntarily buy into the condominium arrangement of property rights,” which precludes a claim for adverse possession over the common areas. Because the Act clearly and unambiguously requires the consent of all unit owners to any alteration of the unit owners’ respective percentage interest in the common areas, one unit owner cannot unilaterally alter same by asserting a claim that a portion of the common areas has been added to their unit.
As noted above, the plaintiff unit owners have already filed a Notice of Appeal, such that it appears likely that the Appeals Court will ultimately weigh in on this issue. In its decision, the Land Court noted the dearth of case law in Massachusetts and also readily distinguished the facts of the case from two out-of-state decisions upon which the plaintiff unit owners relied. While the Land Court relied exclusively upon the language of the Act, it will be interesting to see whether the Appeals Court opines as to the ability of a unit owner to satisfy the elements of an adverse possession claim. In particular, the condominium form of ownership presents unique analytical challenges under the adverse possession framework, as unit owners already have an undivided ownership interest in the very land to which they would seek to claim adverse possession.
From a practical perspective, the Land Court decision should be welcome news for condominiums boards, associations and management companies, which already have a slew of issues to deal with arising in common ownership communities. It would present a challenge for those managing common areas to monitor prospective claims of adverse possession where unit owners have an undivided ownership in the common areas, which includes a right to use non-exclusive areas in accordance with a condominium’s governing documents.
MBM will continue to monitor this case and similar decisions throughout Massachusetts, Rhode Island and New Hampshire. If and when the Appeals Court decides an appeal in this matter, our office will provide an update. If you are facing any similar issues or claims, please do not hesitate to contact our office for guidance.