DocketNumber: No. 12-P-1689
Judges: Milkey
Filed Date: 2/21/2013
Status: Precedential
Modified Date: 11/10/2024
The plaintiff is the owners’ association of a residential condominium located in Gloucester. It brought this action to enforce a statutory lien on one of the condominium’s units. The basis of the lien was $3,759.55 in unpaid common expenses. Concluding that the association was unlikely to recover more than $25,000, a judge of the Superior Court dismissed the action without prejudice. See G. L. c. 212, § 3A(b). The association appealed pursuant to G. L. c. 212, § 3A(c), and the single justice reserved and reported the matter without decision to a full panel of this court. We reverse.
In addition to the assessment against the unit itself, the statute also makes the unit owner “personally liable for all sums assessed for his share of the common expenses,” G. L. c. 183A, § 6(b), as amended by St. 1992, c. 400, § 7, and preserves the right of the condominium association to proceed against the unit owner individually for the amount owed. G. L. c. 183A, § 6(c). The Legislature has thus provided two routes by which a condominium association can recoup unpaid common expenses: an action in rem against the unit itself, or an action in personam against the unit owner. The instant case is an example of the former.
The nature of the action is sufficient to resolve the association’s appeal. The judge, noting that the amount of unpaid common expenses the association was seeking to recover was less than $25,000, dismissed the complaint without prejudice based on the amount-in-controversy requirement for actions in the Superior Court under the Commonwealth’s one-trial system. See generally
To be sure, an action to enforce a lien does include some aspects of an action for money damages: the judge will be required to make a determination as to the amount actually owed,
Conclusion. Because the amount-in-controversy requirement of G. L. c. 212, § 3, does not apply to this in rem action to enforce a lien, we vacate the judgment ordering dismissal of the action and remand this matter to the Superior Court.
So ordered.
General Laws c. 212, § 3, as amended by St. 2004, c. 252, § 2, provides in relevant part:
“Except as otherwise provided by law, the [Superior Court] shall have original jurisdiction of civil actions for money damages. The actions may proceed in the court only if there is no reasonable likelihood that recovery by the plaintiff will be less than or equal to $25,000, or an amount ordered from time to time by the supreme judicial court. Where multiple damages are allowed by law, the amount of single damages claimed shall control.”
For this reason, a lien enforcement action most closely resembles a true in rem action, rather than an action “quasi in rem” as the judge below concluded. See National Lumber Co. v. United Cas. & Sur. Ins. Co., 440 Mass. 723, 729 (2004) (“the nature of the plaintiff’s action is in rem, to enforce a lien”). See generally Nolan & Sartorio, Equitable Remedies § 6.2 (3d ed. 2007). The essential in rem nature of the action is reinforced by the fact that the nominal defendants in this case were foreclosed upon by their mortgage holder in early 2012.
Including expenses incurred “as a result of the unit owner’s failure to abide by the requirements of [G. L. c. 183A],” e.g., attorney’s fees incurred in attempting to collect common expenses, which “shall be enforceable as common expense assessments.” G. L. c. 183A, § 6(a)(ii), as amended by St. 1992, c. 400, § 7.
Even a condominium association itself, in bringing such an action, may not always be primarily concerned with collecting the particular sum at issue. Instead, given the importance of regular payment of common expenses to the financial stability of a condominium, see Blood v. Edgar’s, Inc., 36 Mass. App. Ct. 402, 405-406 (1994), a condominium association’s chief aim in enforcing its lien may be simply to get the unit into the hands of an owner who can be relied upon to make regular payments.
The association is entitled to assess reasonable attorney’s fees and costs for this appeal, which are enforceable as part of its lien under the condominium statute. See G. L. c. 183A, § 6(a)(ii), (c). The association’s verified and itemized application for fees and costs may be filed within fourteen days of receipt of this decision. The defendants will then have fourteen days to file an opposition to the amounts requested. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004).