Atanassova v. Sefner

30 Mass. L. Rptr. 639
CourtMassachusetts Superior Court
DecidedJanuary 28, 2013
DocketNo. MICV201002544
StatusPublished

This text of 30 Mass. L. Rptr. 639 (Atanassova v. Sefner) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Atanassova v. Sefner, 30 Mass. L. Rptr. 639 (Mass. Ct. App. 2013).

Opinion

Wilson, Paul D., J.

This lawsuit is a dispute between a condominium unit owner and the trustees of the condominium concerning certain actions of the unit owner, Plaintiff Atanassova. Plaintiff suggests that the sole issue in dispute is whether she has the right to install a non-structural wall separating the condominium’s living room from its dining room, thus allowing the living room to be used as a third bedroom in what had been a two-bedroom condominium unit. The unit, including the allegedly offending wall, is depicted on the plan that is Exhibit A to the Affidavit of lodita Atanassova, Exhibit 15 in the summary judgment appendix.1 The Defendant Trustees of Harvard Place Condominium Trust (the ‘Trustees”) assert that the issue is larger than that, also involving the right of Plaintiff to lease her condominium to three independent persons in three separate transactions, a strategy made possible by the conversion of the living room into a third bedroom. When the parties could not resolve their differences, Plaintiff filed this lawsuit, seeking a declaratory judgment that she had a right to install the partition wall, and that the Trustees have no right to levy fines for her alleged violation of the condominium’s Master Deed.

The Trustees have now moved for summary judgment. Plaintiff has opposed that motion, and asked for an entry of summary judgment in her favor. For the reasons set forth below, I will allow the Trustees’ motion for summary judgment.

Background

Plaintiff took title to Unit 303 of the Harvard Place Condominium Trust in Somerville on July 10, 2009. The parties agree that the condominium’s Master Deed says that the condominium consists of 27 one-bedroom and two-bedroom units. See Joint Statement of Material Facts ¶10. In fact, the Master Deed, in section 4, specifically refers to Unit 303 as a two-bedroom unit. The Master Deed, found in Exhibit 3, states in section 12 that it may be amended only by agreement of unit owners holding 75% or more of the beneficial interest in the condominium, as well as a majority of the Trustees.2

Plaintiff purchased Unit 303 for investment, and has never occupied that unit. Shortly after she took title, Plaintiff erected the non-structural wall that allowed the living room to be used as a third bedroom. [640]*640She did so without a building permit, and without seeking the approval of the Trustees, as is required by section 11(C) (d) of the Master Deed, which states that “the owner of a unit may, if the structural wall supports and other structural aspects of the Building are not adversely affected, change the interior partitioning thereof, subject to the approval of the Trustees.” The Trustees became aware of the construction by happenstance, and had the property manager inform Plaintiff of the approval requirement, by way of an e-mail to her sister, who was apparently also her realtor. Her sister’s response foreshadowed this lawsuit: “Regarding the Board approval, this is not a co-op building, and the owners shouldn’t be required to ask the Board for a permission [sic] to sell, rent or modify it. ”3 Plaintiff later did obtain a building permit, but the Trustees never granted their approval for the change in the interior partitioning of the unit.

Plaintiff then advertised for tenants on Craig’s List, in the following manner: “We advertised the apartment, we advertised the rooms, we advertised any possible way to get tenants.” Deposition of Atanassova, Exhibit 8 (“Plaintiffs Deposition”) at 15. Plaintiffs ads soon yielded three tenants, each of whom leased portions of the unit. On August 13, 2009, Plaintiff rented what the lease called “1 BR, 1 bath, shared kitchen” to Komar Raut for a term beginning on August 16, 2009 and terminating on May 31,2010. Also on August 13, 2009, Plaintiff rented what the lease called “1 BR, shared bathroom and kitchen” to Noemi Lee for a term beginning on September 1, 2009 and terminating on August 31, 2010. Finally, on August 14, 2009, Plaintiff rented what the lease called “1 BR, shared bathroom and kitchen” to Jessica Samanticco for a term beginning on September 1, 2009 and ending on May 31, 2010.4

In December 2009, the property manager asked Plaintiff, twice, for a copy of “the lease agreement between you and your tenants.” Exhibit 5 at 32-33. (In the same e-mail, the property manager pointed out that Plaintiff was violating the Master Deed by leasing one of the parking spaces affiliated with Unit 303 to a person who did not reside in the condominium building, a violation that Plaintiff conceded and soon corrected.) In response, Plaintiff sent copies of the three separate leases to the property manager.

In this fashion, the Trustees learned that Plaintiff had signed individual leases with three tenants, commencing and ending at different times, each for only a portion of the condominium unit. Counsel for the Trustees sent Plaintiff a cease-and-desist letter, asserting that Plaintiff had, among other things, violated provisions of the Master Deed prohibiting the rental of a portion of the unit, see Master Deed § 11 (c) (b), as well as the provision banning construction work in the unit without the prior written permission of the Board. Exhibit 5 at 29-31. Plaintiff then had all three tenants execute one lease, dated January 14, 2010, describing the unit as “2 BR, 2 Bath, Kitchen, Living Room,” and running from September 1,2009 (around the time that these three tenants originally took occupancy under their separate leases) until August 31, 2011.5

Although the individual leases were thus superseded, the living arrangements of the three tenants did not change. The wall that separated the living room from the dining room remained in place, without the permission of the Trustees. Plaintiff stated in her deposition that the former living room “is not designated to be a bedroom. It is just a room. And whoever rents it, they can use it for whatever purpose they need it.” Plaintiffs Deposition, Exhibit 8, at 23. Plaintiff conceded, however, that “[cjurrently they use this room as a bedroom.” Id. Plaintiff also conceded that her tenants were not related to one another, id. at 25, and, in correspondence with the Trustees’ lawyer, Plaintiffs lawyer has described tenants as “three professional women sharing a single condominium unit.” Exhibit 5 at 2. The 2010 joint lease lists separate telephone numbers for each tenant. See Exhibit 6. Plaintiff has “admitted that separate checks are received” from each of the three tenants each month. Joint Statement of Material Facts ¶30.

Analysis

Summary judgment is appropriate when, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law. Cabot Corp. v. AVX Corp., 448 Mass. 629, 636-37 (2007), citing Augat, Inc. v. Liberty Mutual Ins. Co., 410 Mass. 117, 120 (1991). Here there are no disputes about the facts; the parties differ only about on the implications under the Master Deed of those facts. Indeed, because there are no disputed material facts, Plaintiff, the nonmoving party, has herself asked that summary judgment be entered in her favor, as is allowed by Mass.R.Civ.P. 56(c).

Under Plaintiffs view of this case, the only issue is whether the Trustees have unreasonably withheld their consent to the erection of the non-structural wall separating the living room from the dining room.

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Cite This Page — Counsel Stack

Bluebook (online)
30 Mass. L. Rptr. 639, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atanassova-v-sefner-masssuperct-2013.