Drummer Boy Homes Association, Inc. v. Britton

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SJC-11969
DRUMMER BOY HOMES ASSOCIATION, INC. vs. CAROLYN P. BRITTON &
another.1
Middlesex. January 7, 2016. - March 29, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Condominiums, Common expenses. Real Property, Condominium.
Lien. Mortgage, Priority. Practice, Civil, Standing,
Attorney's fees.
Civil actions commenced in the Concord Division of the
District Court Department on August 8, 2007; February 6, 2008;
and October 6, 2008.
After consolidation, the case was heard by Peter J.
Kilmartin, J., on a motion for summary judgment, and a motion to
alter and amend the judgment was also heard by him.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
Thomas O. Moriarty (Jennifer L. Barnett with him) for the
plaintiff.
Michael A.F. Johnson, of the District of Columbia (Rhiannon
A. Campbell with him), for Federal Housing Finance Agency &
others, amici curiae.
Randy A. Britton, pro se.
1
Randy A. Britton.
2
The following submitted briefs for amici curiae:
Alan E. Lipkind & Elizabeth Brady Murillo for Avidia Bank &
others.
Henry A. Goodman, Ellen A. Shapiro, Charles A. Perkins,
Jr., Scott J. Eriksen, & David R. Chenelle for Community
Associations Institute.
Clive D. Martin & Diane R. Rubin for Real Estate Bar
Association for Massachusetts, Inc.
Stephen C. Reilly & Jennifer E. Greaney for Bank of
America, N.A.
SPINA, J. At issue in this case is whether G. L. c. 183A,
§ 6, permits an organization of unit owners to establish
multiple contemporaneous priority liens on a condominium unit by
filing successive legal actions to collect unpaid monthly common
expense assessments (common expenses).2 We conclude that the
statute allows for such liens. Accordingly, we reverse the
judgment of the Appellate Division of the District Court,3 which
reached a contrary conclusion.4
2
Common expenses are defined in G. L. c. 183A, § 1, as "the
expenses of administration, maintenance, repair or replacement
of the common areas and facilities, and expenses declared common
expenses by this chapter."
3
The Appellate Division of the District Court is
encompassed within the definition of a "lower court" from whose
decision an appeal may be taken to an appellate court. See
Mass. R. A. P. 1 (c), as amended, 454 Mass. 1601 (2009).
4
We acknowledge the amicus briefs submitted in support of
Drummer Boy Homes Association, Inc. (association), by Avidia
Bank, Brookline Bank, Mutual of Omaha Bank, North Shore Bank,
and Rockland Trust Company; Community Associations Institute;
and the Real Estate Bar Association for Massachusetts, Inc. We
also acknowledge the amicus briefs submitted in support of the
decision of the Appellate Division of the District Court by Bank
of America, N.A.; and the Federal Housing Finance Agency, the
3
1. Background. Over the last ten years, the parties in
this case have been involved in protracted and contentious
litigation concerning parking rights at a condominium complex.
Our recitation of the factual background and procedural history
encompasses only those matters that relate to the specific
issues now before this court. Drummer Boy Condominium II, which
consists of twelve individual units, is one of nine condominiums
comprising Drummer Boy Green in Lexington. In the aggregate,
the nine condominiums have approximately 150 units. The
defendant, Carolyn P. Britton, purchased a unit in Drummer Boy
Condominium II in May, 2001. In April, 2008, she transferred
title to the unit by quitclaim deed to herself and her husband,
defendant Randy A. Britton, as tenants by the entirety.5
Around 2004, the Brittons began to withhold payment of
their monthly common expenses because of a dispute concerning
parking rules and related fines. On August 8, 2007, the Drummer
Boy Homes Association, Inc. (association),6 commenced an action
Federal National Mortgage Association, and the Federal Home Loan
Mortgage Corporation.
5
Because they share the same last name, we refer to the
Brittons individually by their first names.
6
The association originally filed suit as the "Board of
Directors of the Drummer Boy Homes Association, Inc." As will
be discussed infra, the Appellate Division of the District Court
corrected the name of the plaintiff to its present form.
4
in the District Court against the Brittons.7 It sought to
recover unpaid common expenses and to enforce a priority lien
pursuant to G. L. c. 183A, § 6 (c), and G. L. c. 254, §§ 5, 5A,
that would be superior to the first mortgage to the extent of
the common expenses due during the six months immediately
preceding the commencement of the action.8 The Brittons
continued to withhold payment of their monthly common expenses.
On February 6, 2008, the association commenced a second action
to recover the unpaid common expenses that had accrued since the
filing of its first action, and to enforce a second six-month
priority lien. When the Brittons still did not pay their
monthly common expenses, the association commenced a third
action on October 6, 2008, to recover the unpaid common expenses
that had accrued since the filing of its second action, and to
7
The complaint named Carolyn as a defendant because she
held title to the unit at the time the suit was brought. Randy
was also named as a defendant and party in interest because he
was the holder of a second mortgage on the condominium unit.
After the association asserted that Randy, who has a juris
doctor degree but is not admitted to the bar, had engaged in the
unauthorized practice of law by filing a motion to dismiss the
complaint, Carolyn transferred ownership of the unit to herself
and Randy. The Brittons then proceeded together as pro se
defendants. Coldwell Banker Mortgage, the holder of the first
mortgage on the Brittons' unit, and Massachusetts Educational
Financing Authority, the holder of another mortgage on the unit,
were also named as defendants and parties in interest in the
complaint. Although each entered an appearance, neither has
participated in the litigation or filed an appeal.
8
The association voluntarily dismissed two earlier actions
against Carolyn for the nonpayment of common expenses after she
paid the amounts due.
5
enforce a third six-month priority lien. The association
subsequently filed a motion to consolidate the three actions,
which was allowed.
On March 9, 2009, the association filed a motion for
summary judgment. Following a hearing, a judge allowed the
motion and entered judgment in favor of the association in the
amount of $22,742.08.9 The judge first determined that the
association was the proper entity to seek recovery of unpaid
common expenses pursuant to G. L. c. 183A, § 6. He then
concluded that there were no disputed issues of material fact
regarding the association's ability to recover unpaid common
expenses and related fines, as well as reasonable attorney's
fees and costs associated with the collection of such expenses.
The judge pointed out that, notwithstanding the Brittons'
arguments about the purported illegality of the parking policies
at Drummer Boy Green, they never initiated an action to resolve
their parking dispute, and they could not remedy the matter
simply by ignoring the fines and refusing to pay their common
9
The judge pointed out that, apart from the issues raised
in the association's original causes of action, the court
already had resolved all other matters presented in this
litigation, including the Brittons' request for injunctive
relief and their various motions, counterclaims, and third-party
actions. The judgment in favor of the association was comprised
of $9,887.22 in unpaid common expenses for the three six-month
periods that were the subject of the consolidated actions (which
included common expenses, fines, late fees, and costs), $12,314
in reasonable attorney's fees, and $540.86 in costs of
collection.
6
expenses.10 The judge also concluded, however, that the filing
of successive actions was not consistent with G. L. c. 183A, § 6
(c), and that the association's lien priority over the first
mortgagee for common expenses, plus reasonable attorney's fees
and costs, was limited to the one six-month period preceding the
commencement of the first of the consolidated actions. That
being the case, the judge established a priority lien under § 6
(c) in the amount of $15,054.86.11 The judge denied the
association's subsequent motion to alter or amend the judgment
to reflect three successive six-month periods of lien priority.
Both parties appealed to the Appellate Division of the
District Court. By decision dated July 20, 2011, a panel of the
Appellate Division affirmed the judgment in all respects. After
reviewing the parties' extensive briefing, the panel determined
that only two issues had been properly raised: standing and
10
A unit owner may not challenge common expenses by
refusing to pay them, but, instead, should pay under protest and
then seek a judicial determination of the legality of the
assessment, as well as suitable reimbursement. See Trustees of
the Prince Condominium Trust v. Prosser, 412 Mass. 723, 726
(1992) ("A system that would tolerate a unit owner's refusal to
pay an assessment because the unit owner asserts a grievance,
even a seemingly meritorious one, would threaten the financial
integrity of the entire condominium operation"); Blood v.
Edgar's, Inc., 36 Mass. App. Ct. 402, 404-406 (1994).
11
The judge determined the amount of the priority lien by
adding together the unpaid common expenses for only the six
months immediately preceding the association's first action
against the Brittons ($2,200), plus reasonable attorney's fees
($12,314), and the costs of collection ($540.86).
7
statutory interpretation. First, the panel considered the
Brittons' argument that the plaintiff was not a legal entity
entitled to sue and, therefore, the judgment was void. The
association conceded that it should have brought suit in the
name of "Drummer Boy Homes Association, Inc.," rather than
"Board of Directors of the Drummer Boy Homes Association, Inc."
The panel corrected the misnomer, concluding that the litigation
was brought by an existing legal entity with authority to sue,
and that the Brittons suffered no prejudice as a result of the
amendment.
Next, the panel considered the association's argument that,
pursuant to G. L. c. 183A, § 6 (c), it was entitled to lien
priority for three successive six-month periods. After
reviewing the language of the statute, together with its
underlying policy of balancing a condominium association's need
to enforce the collection of unpaid common expenses and a first
mortgagee's desire to protect the priority of its security
interest, the panel concluded that the association was entitled
to only one six-month period of lien priority. In the panel's
view, extending a condominium association's lien priority beyond
one six-month period of time would undermine the purpose of the
statutory scheme. The panel also stated that the association
was entitled to recover reasonable appellate attorney's fees and
costs.
8
Both parties appealed to the Appeals Court, which affirmed
the judgment of the Appellate Division. Drummer Boy Homes
Ass'n, Inc. v. Britton, 86 Mass. App. Ct. 624 (2014). We then
granted the association's application for further appellate
review.
2. Standing. As an initial matter, the Brittons contend
that because the association is not the "organization of unit
owners" for Drummer Boy Condominium II, it does not have
standing to bring a cause of action pursuant to G. L. c. 183A
for the recovery of unpaid common expenses. As a consequence,
the Brittons continue, this court lacks subject matter
jurisdiction to consider the association's claims under the
statute, and, therefore, summary judgment should enter in their
favor. We disagree.12
A condominium is a creature of statute. See G. L. c. 183A;
Kaplan v. Boudreaux, 410 Mass. 435, 442 (1991). General Laws
c. 183A, § 6 (a) (i), states that "[t]he organization of unit
12
The Brittons properly raised only one issue before the
Appellate Division -- whether the judgment of the District Court
was void due to the misnomer of the plaintiff. To the extent
that the Brittons have raised other issues in the present
appeal, they are waived. We consider the matter of the proper
plaintiff because the issue of standing is one of subject matter
jurisdiction and can be raised at any time up until the final
judgment on appeal. See generally Indeck Maine Energy, LLC v.
Commissioner of Energy Resources, 454 Mass. 511, 516 (2009).
See also Reporters' Notes to Mass. R. Civ. P. 12 (h) (3), Mass.
Ann. Laws Court Rules, Rules of Civil Procedure, at 194
(LexisNexis 2015-2016).
9
owners shall have a lien on a unit for any common expense
assessment levied against that unit from the time the assessment
becomes due." Pursuant to G. L. c. 183A, § 1, the "organization
of unit owners" is "the corporation, trust or association owned
by the unit owners and used by them to manage and regulate the
condominium."
On June 7, 1976, the trustees of Drummer Boy Trust
(trustees), together with their successors and assigns, executed
a Declaration of Covenants, Easements, and Restrictions
(declaration) to create Drummer Boy Green. In turn, the
declaration provided for the creation of the association as the
entity to which the trustees would delegate and assign "the
powers of maintaining and administering . . . common areas and
facilities and administering and enforcing the covenants and
restrictions and collecting and disbursing the assessments and
charges hereinafter created." The association was incorporated
under the laws of Massachusetts for the purpose of exercising
these functions.13 The declaration further states that "[e]very
13
The declaration states that its covenants, easements, and
restrictions "shall run with and bind the land and shall inure
to the benefit of and be enforceable by the [association] for a
term of 30 years . . . , after which time said covenants and
restrictions shall be automatically extended for successive
periods of ten (10) years unless an instrument signed by the
then Owners of two-thirds of the Living Units has been recorded,
agreeing to terminate or change said covenants and restrictions
in whole or in part." On November 9, 2005, fifty per cent or
more of the unit owners of Drummer Boy Green extended the
10
person who or entity which is a record owner of a fee or
undivided fee interest in any Living Unit shall be a member of
the [association]." As set forth in the covenant for
maintenance assessments, if an assessment is not paid in a
timely manner, the association "may bring an action at law
against the [unit owner] personally obligated to pay the same or
to foreclose the lien against the Living Unit."
On September 30, 1976, the trustees executed a master deed,
submitting specified land, together with the buildings and
improvements erected thereon, and all easements, rights, and
appurtenances belonging thereto, to the provisions of G. L.
c. 183A, thereby creating Drummer Boy Condominium II. It was
subject to the terms of the declaration, and the covenants,
easements, and restrictions set forth therein were incorporated
by reference into the master deed. Section 8 of the master deed
states that "Drummer Boy Condominium II Association" is the
unincorporated association of unit owners that will manage and
regulate Drummer Boy Condominium II. Article I, Section 2, of
the bylaws adopted by Drummer Boy Condominium II Association
(bylaws) provides that such entity is the "organization of
[u]nit [o]wners" as defined in G. L. c. 183A. At the same time,
Article I, Section 3, of the bylaws provides that the
restrictions set forth in the declaration for a period of twenty
years, until June 7, 2026.
11
association (that is, Drummer Boy Homes Association, Inc.) has
been organized under Massachusetts law for the purpose of
administering and enforcing the declaration, and that the
declaration vests in the association "certain responsibilities
for the maintenance of the Common Elements described in the
Master Deed." Moreover, Article VI, Section 1, of the bylaws
states that "[f]or the duration of the Declaration, the Common
Expenses shall be determined, assessed and collected by the
[association] as provided in the Declaration and its By-Laws, on
behalf of [Drummer Boy Condominium II] and all other Drummer Boy
Condominiums . . . ."
In essence, pursuant to the master deed and the bylaws,
Drummer Boy Condominium II Association delegated the exclusive
authority to assess and collect common expenses to the
association. That being the case, the association functions as
the "organization of unit owners" to recover unpaid common
expenses and to enforce a priority lien in accordance with G. L.
c. 183A, § 6. We conclude that the association had standing to
bring the present action.
3. Successive priority liens. The association contends
that because a unit owner's responsibility to pay monthly common
expenses is a recurring obligation, an organization of unit
owners can file successive legal actions under G. L. c. 183A,
§ 6, to establish and enforce multiple contemporaneous liens on
12
a condominium unit, each with a six-month period of priority
over the first mortgage, for the recoupment of successive
periods of unpaid common expenses. We agree.
Our analysis of G. L. c. 183A, § 6, is guided by the
familiar principle that "a statute must be interpreted according
to the intent of the Legislature ascertained from all its words
construed by the ordinary and approved usage of the language,
considered in connection with the cause of its enactment, the
mischief or imperfection to be remedied and the main object to
be accomplished, to the end that the purpose of its framers may
be effectuated." Hanlon v. Rollins, 286 Mass. 444, 447 (1934).
See Sullivan v. Brookline, 435 Mass. 353, 360 (2001), and cases
cited. "Courts must ascertain the intent of a statute from all
its parts and from the subject matter to which it relates, and
must interpret the statute so as to render the legislation
effective, consonant with sound reason and common sense."
Twomey v. Middleborough, 468 Mass. 260, 268 (2014). "When
amending a statute or enacting a new one, the Legislature is
presumed to be aware of prior statutory language." Ropes & Gray
LLP v. Jalbert, 454 Mass. 407, 412-413 (2009).
An organization of unit owners is entitled to have a lien
on a condominium unit for unpaid common expenses from the time
such expenses become due. See G. L. c. 183A, § 6 (a) (i).
General Laws c. 183A, § 6 (c), first par., states, in relevant
13
part, that "[w]hen any portion of the unit owner's share of the
common expenses has been delinquent for at least sixty days
. . . , the organization of unit owners shall send a notice
stating the amount of the delinquency to the unit owner . . .
[and] to the first mortgagee." Then, "thirty days prior to the
filing of an action by the organization of unit owners to
enforce its lien for delinquent common expenses, the
organization of unit owners shall send a notice stating its
intention to file said action to the first mortgagee."14 Id.
The evident purposes of such notices are to give the unit owner
an opportunity to remedy the delinquency so as to avoid an
enforcement action that may result in foreclosure, and to
apprise the first mortgagee of the status of the property so it
can take appropriate action, as necessary, to protect its
security interest.
Prior to 1992, a lien on a condominium unit for unpaid
common expenses was subordinate to the first mortgage of record.
See St. 1991, c. 554, § 1. As a consequence, the first
mortgagee had little incentive to initiate a foreclosure action
against the unit owner because its security interest was not in
14
A lien established under G. L. c. 183A, § 6, "shall be
enforced in the manner provided in [G. L. c. 254, §§ 5, 5A]."
G. L. c. 183A, § 6 (c), second par. In turn, G. L. c. 254, § 5,
states that such a lien "shall be enforced by a civil action
brought . . . in the district court in the judicial district
where [the] land lies."
14
jeopardy. At the same time, during periods of falling real
estate values, when the mortgage on a condominium unit might
equal or exceed the fair market value of the unit, a foreclosure
action by the first mortgagee could result in insufficient funds
to satisfy a condominium association's lien. In 1992, the
Legislature recognized that "a serious public emergency" had
developed with respect to housing created pursuant to G. L.
c. 183A. St. 1992, c. 400, § 1. "This emergency ha[d] been
created by a policy of disinvestment by unit owners who [were]
no longer paying their lawfully assessed share of the common
expenses. Without the payment of these common expenses,
condominium buildings [were] falling into physical and financial
disrepair, causing neighborhood blight, and jeopardizing the
public health, safety, and welfare." Id. The Legislature's
response was to "take action to aid condominium associations" by
enacting numerous amendments to G. L. c. 183A. Id.
Significantly, the Legislature inserted the second
paragraph of G. L. c. 183A, § 6 (c), to establish the priority
of diverse liens that could be placed on a condominium unit.
See St. 1992, c. 400, § 9. It states, in relevant part, as
follows:
"[A] lien [under G. L. c. 183A, § 6, for unpaid common
expenses] is prior to all other liens and encumbrances on a
unit except (i) liens and encumbrances recorded before the
recordation of the master deed, (ii) a first mortgage on
the unit recorded before the date on which the assessment
15
sought to be enforced became delinquent, and (iii) liens
for real estate taxes and other municipal assessments or
charges against the unit. This lien is also prior to the
mortgages described in clause (ii) above to the extent of
the common expense assessments based on the budget adopted
pursuant to [G. L. c. 183A, § 6 (a),] which would have
become due in the absence of acceleration during the six
months immediately preceding institution of an action to
enforce the lien and to the extent of any costs and
reasonable attorneys' fees incurred in the action to
enforce the lien . . ." (emphasis added).
G. L. c. 183A, § 6 (c), second par. The statute further
provides that "payment of the assessments with respect to such
six month period, and to the extent of any costs or reasonable
attorneys' fees incurred in said action, shall serve to
discharge such lien to the extent that such lien is prior to
such mortgages described in clause (ii) above." Id. Moreover,
"[t]he priority amount shall not include any amounts
attributable to special assessments, late charges, fines,
penalties, and interest assessed by the organization of unit
owners." Id. In essence, when a condominium association
initiates a lien enforcement action, it can obtain so-called
"super-priority" status over a first mortgagee for six months'
worth of common expenses. See id.
General Laws c. 183A, § 6 (c), second par., is silent with
respect to whether, in the face of ongoing nonpayment of common
expenses, an organization of unit owners can initiate subsequent
actions to establish priority liens beyond one six-month period.
Nonetheless, the insertion of the fourth and fifth paragraphs of
16
G. L. c. 183A, § 6 (c), as discussed infra, suggests that the
Legislature anticipated that condominium associations might
initiate multiple lien actions. See St. 1998, c. 242, § 6.
Indeed, given the Legislature's recognition of the "serious
public emergency" caused by unit owners who fail to pay their
common expenses, it is reasonable to think that the Legislature
would view such payment delinquencies as an ongoing problem
necessitating more than the heretofore limited remedy of one
lien for six months' worth of common expenses. See Blood v.
Edgar's, Inc., 36 Mass. App. Ct. 402, 405 n.2 (1994)
(Legislature consistently has amended G. L. c. 183A "to
strengthen common expense collection"). The financial stability
of the condominium form of home ownership depends, in
significant part, on the timely receipt of common expenses by
the organization of unit owners. See Trustees of the Prince
Condominium Trust v. Prosser, 412 Mass. 723, 726 n.3 (1992)
("the collection of all common area charges is important to the
viability of any condominium enterprise").
In 1998, the Legislature inserted the fourth and fifth
paragraphs of G. L. c. 183A, § 6 (c), to establish the procedure
by which a first mortgagee could maintain its lien priority
notwithstanding the initiation of an enforcement action by an
organization of unit owners to recoup unpaid common expenses.
17
See St. 1998, c. 242, § 6. General Laws c. 183A, § 6 (c),
fourth par., states, in relevant part, as follows:
"The organization of unit owners shall take no further
action to enforce its priority liens against a particular
unit for common expenses if the first mortgagee agrees in
writing that a priority lien exists without the requirement
of instituting an action, as to such enforcement and pays,
within [sixty] days of said writing, the following
prescribed amounts: (1) so much of any delinquent
assessments on that unit for regularly recurring budgeted
common expenses over a period for six months immediately
preceding the notice of delinquency that would constitute a
priority amount if an action had been commenced on the date
the organization gives its delinquency notice to the
mortgagee; (2) costs and reasonable attorney's fees
incurred by the organization at the time of said writing by
the first mortgagee to collect outstanding common expenses
. . . ; [and] (3) all future common expenses, and special
assessments other than special assessments for improvements
made pursuant to [G. L. c. 183A, § 18,] assessed against
that unit from the date of said notice until such time as
the mortgagee's mortgage is foreclosed or otherwise no
longer encumbers the unit. The amount which the first
mortgagee, if it so elects, would be required to pay to
cause the organization not to proceed to enforce its
priority liens shall not include any amounts attributable
to late charges, fines, penalties, and interest assessed by
the organization of unit owners . . ." (emphasis added).15
In addition, G. L. c. 183A, § 6 (c), fifth par., provides that,
when requested by the first mortgagee, "the organization of unit
owners shall provide a written statement in reasonable detail of
the actual dollar amounts the first mortgagee would be required
15
Based on the language of G. L. c. 183A, § 6 (c), fourth
par., the organization of unit owners will be unable to recover
all monies due and owing from a unit owner because a first
mortgagee who elects to pay prescribed amounts in order to
prevent a lien enforcement action is not required to pay certain
enumerated fees that have been imposed on the unit owner as a
consequence of the nonpayment of common expenses.
18
to pay, if it so elected, to cause the organization of unit
owners not to take further action to enforce its priority liens
against the unit" (emphasis added). The fifth paragraph also
sets forth a timetable by which the first mortgagee and the
organization of unit owners shall enter into the written
agreement described in the fourth paragraph. See id.
By enabling a first mortgagee to assume responsibility for
a unit owner's unpaid common expenses, the Legislature has
balanced the interests of a condominium association with those
of a first mortgagee. On the one hand, the condominium
association is assured that it will receive six months' worth of
delinquent common expenses plus all future common expenses,
thereby allowing it to meet its ongoing financial obligations
without imposing an additional burden on unit owners who have
paid their common expenses in a timely manner.16 On the other
hand, the first mortgagee is assured that it will maintain its
lien priority, and that the condominium association will refrain
16
The amici on behalf of financial institutions that lend
money to condominium associations point out that these loans,
which are used to maintain and repair the common elements of a
condominium, are secured by a pledge of the condominium
association's income stream, namely, the common expenses paid by
the unit owners. According to these amici, the availability of
multiple contemporaneous priority liens for successive six-month
periods of time reduces the risk associated with such loans and
increases the willingness of financial institutions to make
them. The amici state that they currently have approximately
$229 million in outstanding loans to about 721 condominium
associations in Massachusetts.
19
from taking further enforcement action. The first mortgagee
also can avoid the costs and reasonable attorney's fees that
otherwise would be incurred in the lien enforcement action, and
can preserve the value of its collateral through the continuous
payment of common expenses.17
Construing G. L. c. 183A, § 6 (c), as permitting an
organization of unit owners to establish a single priority lien
on a condominium unit for the recovery of only six months' worth
of unpaid common expenses would render the mechanism established
by the Legislature in the fourth and fifth paragraphs of the
statute inconsequential. It also would ignore the Legislature's
17
In concluding that successive lien enforcement actions
would undermine the equitable balance between the interests of a
condominium association and those of a first mortgagee, the
Appellate Division relied, in part, on § 3-116 of the Uniform
Condominium Act (UCA), 7 (Part II) U.L.A. 625 (Master ed. 2009).
The UCA was enacted for three primary purposes: "(1) to make
terminology and details of condominium statutes uniform so that
national lenders could more easily assess the appropriateness of
condominium documents and financing, (2) to make unit holders'
'bundle of rights' more uniform so that 'the increasingly mobile
consumer' could become more educated 'in this very complex
area,' and (3) to solve problems concerning 'termination of
condominiums, eminent domain, insurance, and the rights and
obligations of lenders upon foreclosure of a condominium
project,' which were 'not satisfactorily addressed by any
existing statute.'" Plano Parkway Office Condominiums v. Bever
Props., LLC, 246 S.W.3d 188, 193-194 (Tex. Ct. App. 2007),
quoting Prefatory Note to UCA, supra at 487. Massachusetts has
not adopted either the UCA or its successor, the Uniform Common
Interest Ownership Act, 7 (Part II) U.L.A. 1 (Master ed. 2009).
Moreover, neither includes any provisions akin to those set
forth in G. L. c. 183A, § 6 (c), fourth par., establishing a
mechanism for the balancing of interests beyond what was
afforded by the 1992 amendments to G. L. c. 183A, § 6.
20
references to "priority liens" in both the fourth and fifth
paragraphs of § 6 (c) (emphasis added). There would be little
reason for a first mortgagee to assume responsibility for the
payment of a unit owner's future common expenses if the
condominium association were limited to one six-month period of
lien priority. In such circumstances, future common expenses
would always be subordinate to the first mortgage. The
procedure articulated in the fourth and fifth paragraphs of
G. L. c. 183A, § 6 (c), reflects an awareness by the Legislature
that the statute permits an organization of unit owners to
establish and enforce multiple contemporaneous priority liens on
a condominium unit. Our interpretation of G. L. c. 183A, § 6,
is consistent with the Legislature's long-standing interest in
improving the governance of condominiums and strengthening the
ability of organizations of unit owners to collect common
expenses, thereby avoiding a reemergence of the serious public
emergency that developed in the early 1990s. We are cognizant
of the concern that by allowing a condominium association to
establish multiple priority liens over an extended period of
time, those liens eventually could have priority over much of
the first mortgage. However, it is well within the control of a
first mortgagee to avert the establishment of such liens in the
first instance by paying statutorily prescribed amounts to the
21
organization of unit owners in conformity with G. L. c. 183A,
§ 6 (c), fourth par.
4. Appellate attorney's fees. In its brief, the
association has requested appellate attorney's fees and costs
incurred as a consequence of its efforts to recover the common
expenses due and owing from the Brittons. General Laws c. 183A,
§ 6 (b), states that "[t]he unit owner shall be personally
liable for all sums assessed for his share of the common
expenses including late charges, fines, penalties, and interest
assessed by the organization of unit owners and all costs of
collection including attorneys' fees, costs, and charges." The
Appellate Division of the District Court awarded the association
$8,500 in appellate attorney's fees and costs, which was added
to the total judgment entered in its favor.
We now conclude that the association is statutorily
entitled to recover reasonable attorney's fees and costs
associated with the proceedings before this court and the
Appeals Court.18 See Yorke Mgt. v. Castro, 406 Mass. 17, 19
(1989). The association is directed to file with the clerk of
this court materials detailing and supporting its request for
18
With respect to a request for attorney's fees and costs
that the association may have incurred as a consequence of
filing its own appeal in the Appeals Court and opposing the
Brittons' cross appeal, the association may apply to that court
for such fees and costs. See Costa v. Fall River Hous. Auth.,
453 Mass. 614, 633 n.28 (2009); T & D Video, Inc. v. Revere, 450
Mass. 107, 117 (2007).
22
such fees and costs within fourteen days of the issuance of the
rescript in this case. See Fabre v. Walton, 441 Mass. 9, 10
(2004). The Brittons will be afforded fourteen days to respond,
and the court will then enter an appropriate order. See id. at
10-11.
5. Conclusion. The association may file successive legal
actions against the Brittons under G. L. c. 183A, § 6, to
establish and enforce multiple contemporaneous liens on their
condominium unit, each with a six-month period of priority over
the first mortgage, for the recoupment of successive periods of
unpaid common expenses. Accordingly, the judgment of the
Appellate Division of the District Court is reversed.
So ordered.