Bishops Forest Condominium (BFC) and Bishops Forest II Condominium (BF II) are adjoining condominiums located in Waltham that were built as part of a "phased" development plan. The plaintiffs are various unit owners and mortgagees of BF II; the defendants are trustees and unit owners of BFC, as well as the original developers of BFC and BF II. Following disputes over cost-sharing arrangements between the two condominiums, the plaintiffs filed a complaint for declaratory relief and damages. In particular, they sought a declaration that BF II was lawfully created and that its unit owners held clear marketable title to their respective units and to BF II common areas (subject to any mortgages or liens of record). On cross motions for summary judgment, a judge in the Land Court entered judgment in favor of the plaintiffs. The defendants appealed to the Appeals Court, and we granted the plaintiffs' application for direct appellate review. The issue we now consider is whether the declarant for a phased condominium development may reserve in the master deed an interest in property that is submitted to the provisions of the condominium statute, G. L. c. 183A, such that the designated property will revest in the declarant if a specified condition occurs. We conclude that such a reservation is lawful and affirm the judgment of the Land Court.
1. Factual and procedural background. The following facts
On December 7, 1987, Crow and the three limited partnerships (collectively, the declarants) created BFC by recording the Bishops Forest condominium master deed (master deed) in the appropriate registry of deeds. The master deed stated that BFC would be developed in phases, starting with Phase I, which would be governed by and subject to the provisions of G. L. c. 183A.
Between January, 1988, and June, 1994, the declarants added phases to BFC, pursuant to the terms of the master deed. At the
Ultimately, the declarants conveyed their remaining right, title, and interest in the Bishops Forest land to TCR Bishops Forest Land Limited Partnership (TCR). On September 23, 1994, TCR recorded a certificate entitled "Removal of Land from Condominium" in the appropriate registry of deeds. This removal certificate stated:
On September 23, 1994, and October 18, 1994, TCR conveyed to Pulte Home Corporation of Massachusetts (Pulte) the land described on the removal certificate as Lots 1 and 4F (revested land). Pulte then created BF II by recording the Bishops Forest II condominium master deed in the appropriate registry of deeds and submitting the revested land to the provisions of G. L. c. 183A.
On June 8, 1995, Pulte entered into an "Amended and Restated Declaration of Cross-Easements, Covenants and
On July 21, 1999, the plaintiffs filed a nine-count complaint in the Land Court, asserting claims for equitable estoppel against the BFC trustees (Count I); equitable estoppel against the BFC unit owners (Count II); waiver (Count III); reformation (Count IV); declaratory judgment (Count V); quiet title (Count VI); unjust enrichment (Count VII); relief against the BFC trustees under G. L. c. 183A, § 5 (b) (2) (iii) (Count VIII); and slander of title (Count IX). The BFC trustees filed an answer, and they counterclaimed for declaratory judgment (Count I); writ of entry (Count II); trespass (Count III); and quiet title (Count IV). A multitude of counterclaims, cross claims, and third-party claims were then filed among various plaintiffs and defendants, the details of which need not be explicated here. Following a status conference, the plaintiffs moved for summary judgment on Count V (declaratory judgment) and Count VI (quiet title) of their complaint; the defendants filed a cross motion for summary judgment on their corresponding claims. A judge in the Land Court allowed the plaintiffs' motion for summary judgment and denied the defendants' cross motion for summary judgment. A separate and final judgment was entered pursuant to Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974). The judge
2. Discussion. The thrust of the defendants' argument is that art. III (B) of the master deed, stating that those portions of the Bishops Forest land that had not been phased into BFC as of a specified termination date revested in the declarants, is invalid because it violates the provisions of G. L. c. 183A. As such, they continue, the land and improvements now known as BF II remain a part of the common area of BFC. Based on our consideration of G. L. c. 183A, the master deed, and principles of common law, we disagree with the defendants' position.
We begin our discussion by recognizing that under common law, a property owner has the right to impose limitations or conditions on an estate that is conveyed to another, such that the conveyance is not one of fee simple absolute. See Gray v. Blanchard, 8 Pick. 284, 288-290 (1829). A property owner who imposes such limitations or conditions has conveyed a defeasible estate, one that may last forever, but may also terminate, either automatically or by some affirmative step of the conveyor, on the occurrence of a stated event. See Proprietors of the Church in Brattle Sq. v. Grant, 3 Gray 142, 146-148 (1855); Restatement of Property § 16 (1936). A defeasible estate may be a fee simple determinable or a fee simple subject to a condition subsequent. "A fee simple determinable is created by a conveyance which contains words effective to create a fee simple and in addition a provision for the automatic expiration of the estate on the occurrence of a stated event."
A condominium is created by a "declarant" who records a master deed that "submits" land to the provisions of G. L. c. 183A. See G. L. c. 183A, §§ 1, 2. The master deed sets forth the nature of the property interest being conveyed, describes the land, buildings, units, and common areas of the condominium, sets forth the purposes for and use restrictions on said buildings and units, and describes the method by which the master deed may be amended. See G. L. c. 183A, § 8. It is well established that "[d]eeds should be `construed as to give effect to the intent of the parties, unless inconsistent with some law or repugnant to the terms of the grant.'" Commercial Wharf E. Condominium Ass'n v. Waterfront Parking Corp., 407 Mass. 123, 131 (1990), S.C., 412 Mass. 309 (1992), quoting Harrison v. Marcus, 396 Mass. 424, 429 (1985). See Bass River Sav. Bank v. Nickerson, 303 Mass. 332, 334 (1939). The intent of the parties is gleaned from "the words used, interpreted in the light of the material circumstances and pertinent facts known to them at the time [the deed] was executed." Bessey v. Ollman, 242 Mass. 89, 91 (1922).
When the master deed at issue here was recorded, BFC consisted of the land, together with all buildings and improvements thereon, comprising Phase I of the development. The declarants expressly reserved the right to add other phases and, when construction of the buildings in such other phases was completed, the declarants could amend the master deed so as to
"A statute is not to be interpreted as effecting a material change in or a repeal of the common law unless the intent to do so is clearly expressed." Pineo v. White, 320 Mass. 487, 491 (1946). See Commercial Wharf E. Condominium Ass'n v. Waterfront Parking Corp., supra at 129 (a court "will not presume that the Legislature intended ... a radical change in the common law without a clear expression of such intent"). The purpose of G. L. c. 183A is "to clarify the legal status of the condominium in light of its peculiar characteristics." Grace v. Brookline, 379 Mass. 43, 52 (1979). General Laws c. 183A is essentially an enabling statute, setting out a framework for the development of condominiums in the Commonwealth, while providing developers and unit owners with planning flexibility. See Barclay v. DeVeau, 384 Mass. 676, 682 (1981). Such flexibility is particularly important with respect to phased condominium developments where long-term financial and market conditions may be uncertain.
The defendants contend that any provision in a master deed, like art. III (B), that may result in a division of the common area, is inconsistent with G. L. c. 183A, §§ 5 (c), 19. Contrary to their argument, neither of these statutory provisions precludes the declarant of a phased development from submitting to c. 183A a defeasible fee, thereby allowing the declarant to retain an interest in the land, as set forth in the master deed, which will revest in the declarant on the occurrence of a stated event.
General Laws c. 183A, § 5 (c), is free from ambiguity. See Beaconsfield Towne House Condominium Trust v. Zussman, 401 Mass. 480, 484 (1988), S.C., 416 Mass. 505 (1993). It provides, in pertinent part: "The common areas and facilities shall remain undivided and no unit owner or any other person shall bring any action for partition or division of any part thereof .... Any covenant or provision to the contrary shall be null and void." G. L. c. 183A, § 5 (c). In Commercial Wharf E. Condominium Ass'n v. Waterfront Parking Corp., supra at 128-130, this court considered whether a developer's retained interest in land constituted a division of the common area and therefore was void under § 5 (c). We concluded that a developer properly could retain an interest in land described in the master deed, but by doing so, such interest does not become "part of the condominium common area, [and] its retention does not constitute a division of the common area." Id. at 131.
Although the interest created in Commercial Wharf E. Condominium Ass'n v. Waterfront Parking Corp., supra at 125, was one that was retained by the developer by operation of an instrument recorded prior to the master deed, there is nothing in § 5 (c) that prohibits the declarant of a phased development from retaining such an interest by operation of the master deed itself.
The declarants properly submitted less than a fee simple absolute to G. L. c. 183A. See Kaplan v. Boudreaux, 410 Mass. 435, 441 (1991); Commercial Wharf E. Condominium Ass'n v. Waterfront Parking Corp., supra at 129. Because the declarants submitted a defeasible fee to G. L. c. 183A, retaining in the master deed a separate interest in the unphased portions of the Bishops Forest land, which could vest on the occurrence of a specified condition, they were not bound by the removal provisions of § 19 as if they had submitted to G. L. c. 183A an estate of fee simple absolute. When a defeasible fee has been conveyed, the "removal" of the interest retained by the declarants will simply occur, if at all, upon the occurrence of a stated event.
We disagree with the defendants' contention that Levy v. Reardon, 43 Mass.App.Ct. 431 (1997), controls and resolves the present dispute. In that case, the declarants, in the master deed, had "reserve[d] for themselves, their heirs, successors and assigns, the right to remove from the land subject to the within Condominium the parcels known as [Lots C, D, and E]." Id. at 432-433 n.5. The Appeals Court recognized that "a developer may retain a property interest by excluding it from the interest subject to the condominium." Id. at 435, quoting Strauss v.