Halpern v. Paolini

1992 Mass. App. Div. 8
CourtMassachusetts District Court, Appellate Division
DecidedJanuary 24, 1992
StatusPublished

This text of 1992 Mass. App. Div. 8 (Halpern v. Paolini) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Halpern v. Paolini, 1992 Mass. App. Div. 8 (Mass. Ct. App. 1992).

Opinion

Sherman, P J.

The plaintiff, as Trustee of the Plaza Place Condominium Trust, ("the Trust”) instituted this G.L.c. 254, §53 action to enforce a G.L.c. 183, §6(c)4 lien against the defendant’s condominiums for unpaid common area fees and expenses and related late charges in the amount of $65,296.00.

The defendant denied liability for most of the claimed indebtedness, and counterclaimed that theTrustees’ conduct after this suit was commenced constituted tortious interference with his contractual relationship with his condominium tenants.

The trial court found for the plaintiff in the amount of $53,000.00.

At trial there was evidence tending to show that: The defendant was the record owner of twenty-four (24) units in Building 22 of the Plaza Place Condominiums in Billerica, Massachusetts. Despite due demand by the condominium Trustees, the defendant failed to pay $48,688.00 in condominium fees and $6,408.00 in late assessments during the period January 1, 1990 through May 31, 1991. Itwas uncontroverted that the Trustees of the Plaza Place Condominium Trust were authorized by the Declaration of Trust and the Master Deed to assess condominium fees, to set the date by which unit owners were to pay such fees, and to determine the amount of any late [9]*9charges or penalties to be assessed for non-payment of fees.

On February 20, 1990, subsequent to the commencement of this action, the Trustees called a meeting of the tenants of the defendant’s 24 condominium units to discusstheirdirectpaymentofrenttotheTrustinsteadofthedefendant. OnFebruary 27, 1990, an attorney for the Trust forwarded a letter to the defendant’s tenants.5 In July, 1990, agents or employees of the Trust removed the coin mechanisms from washer and dryer units in the common laundry room of Building 22. The defendant contended that, in consequence of these actions by theTrust, he lost tenants and rent in the amount of $96,000.00 during the period in question.

The defendant now claims to be aggrieved6 by the court’s denial of his request for ruling of law number 7 which stated:

7. That the Trustees are barred from exercising any ‘self-help’ remedy against a delinquent unit owner other than proceeding in accordance with the provisions of G.L.c. 254, §5.

The defendant also charges the trial court with error in making the following ruling at the request of the plaintiff:

2. TheTrusteesoftheCondominiumTrust,created under M.G.L.c. 183A, are not foreclosed from exercising other legal remedies simply because of their rights to a lien for unpaid common charges against an offending owner, as provided in M.G.L.C. 183A, §6.

1. The defendant’s sole argument on this appeal pertains to his counterclaim.7 He contends that the plaintiff-Trustees endeavored to utilize remedies beyond that specified in G.L.c. 183A, §6 (c) to collect the defendant’s unpaid condominium fees and penalties, and that such unlawful action constituted a tortious interference with his contractual relationships with his condominium tenants. We disagree. There was no error in the court’s denial of defendant’s request number 78 or its allowance of plaintiffs request number 2 as no provision of G.L.c. 183A either restricts a condominium trust’s legal remedies against a delinquent unit owner to the establishment and enforcement of a c. 183A, §6(c) lien, nor excludes or proscribes as unlawful any action taken by the Trustees herein.

[10]*10General Laws c. 183A, §1 et. seq. sets forth the Legislature’s scheme for condominium development and ownership in this Commonwealth, in which trusts or associations act for the benefit of all individual unit owners. G.Lc. 183A, §§10, 11. Glickman v. Brown, 21 Mass. App. Ct. 229, 236 (1985). Each owner of a condominium unit holds title to his or her unit separately, but shares liability with all other unit owners for taxes, maintenance expenses, repairs, improvements and services for the common areas. It is clear that the defendant herein, as an owner of 24 units, was legally obligated to comply with all condominium rules, regulations, by-laws and Master Deed provisions, including those requiring the timely payment of common area and other fees. G.L.c. 183A §4(3). Pursuant to c. 183A, §10(b)(1), the Trust was empowered to manage and deal with the condominium common areas and facilities. Both parties agree that the Trustees were authorized by the Master Deed and Declaration of Trust to assess common area fees and to impose penalties and late charges for unpaid fees.

One method for the collection of fees and penalties imposed by theTrust is setforth in G.L.c. 183A, §6(c) which creates a lien upon a condominium unit for an owner’s share of the common expenses, which lien is to be enforced in accordance with G.L.c. 254, §5. Nothing expressed or implied in Section 6(c) suggests, however, that the lien procedure was intended by the Legislature to constitute a condominium Trust’s exclusive remedy for the collection of unpaid fees. Other remedies are in fact included in the statute. Section 6(b) provides:

The unit owner shall be personally liable for all sums lawfully assessed for his share of the common expenses, [emphasis supplied].

Section 10(b) (4) empowers the condominium trust or association to “conduct litigation ... involving the common areas and facilities or arising out of the enforcement of the by-laws, administrative rules or restrictions or the Master Deed.” Ase. 183Athus permits a unit owner to be sued personally by the condominium trust or association for unpaid fees and charges, the Section 6(c) lien remedy is clearly not exclusive. Section 6 (c) creates an in rem procedure which may be employed in addition to other collection procedures available under common law or by statutory right.

There is no merit to the defendant’s contrary contention that because the word “shall” in Section 6 (c) and other provisions of G.L.c. 183A, see Barclay v. Deveau, 11 Mass. App. Ct. 236 (1981) [interpreting “shall” as mandatory in G.L.c. 183A § (10) ] is mandatory in nature, Section 6(c) was intended as the exclusive procedure for the collection of past due condominium fees. A legislative intention that the word “shall” is to be construed as permissive or mandatory may appear from the spirit or purpose of the act, orfrom the connection in which it is used or its relation to other parts of the same statute. Suburban Light & Power Co. v. Boston, 153 Mass. 200, 202 (1891); Rutter v. White, 204 Mass. 59, 62 (1910). The term “shall” in Section 6(c) is obviously mandatory to the extent that the unit owner’s property interest is made necessarily subject to a lien for unpaid condominium fees, and the trust or association is afforded an unconditional right to proceed against the unit owner’s property in accordance with G.L.c. 254, §5. However, given the existence of Section 6(b) and the general tenor of G.L.c. 183A, aconstruction of the term “shall” in Section 6 (c) as signifying an exclusive remedy would contravene elementary canons of statutory construction. These canons dictate that no portion of a statute should be deemed surplusage, and all sections must be reconciled so as to achieve a harmonious interpretation of the statute asawhole. Hite v. Hite, 301 Mass. 294 (1938).

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Bluebook (online)
1992 Mass. App. Div. 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/halpern-v-paolini-massdistctapp-1992.