Busalacchi v. McCabe

• Decision Date: 02 April 2008
• Docket Number: No. 06-P-1334.,06-P-1334.
• Citation: 71 Mass. App. Ct. 493,883 N.E.2d 966
• Parties: Francesca BUSALACCHI & others,<SMALL><SUP>1</SUP></SMALL> trustees,<SMALL><SUP>2</SUP></SMALL> v. Wayne T. McCABE & another.<SMALL><SUP>3</SUP></SMALL>
• Court: Appeals Court of Massachusetts

883 N.E.2d 966

71 Mass. App. Ct. 493

Francesca BUSALACCHI & others,¹ trustees,² v. Wayne T. McCABE & another.³

No. 06-P-1334.

Appeals Court of Massachusetts, Suffolk.

Argued June 12, 2007.

Decided April 2, 2008.

Anthony S. Summers for the plaintiffs.

Edward E. Veara for the defendants.

Present: DUFFLY, COHEN, & TRAINOR, JJ.

TRAINOR, J.

This appeal arises from a dispute between trustees of the Ocean Breeze Condominium (condominium) in North Truro and Wayne T. and Carol A. McCabe (McCabes), owners of an adjacent property, concerning a disputed four-foot wide right of way that is claimed to burden the condominium common area. No dispute existed as to the material facts, and at the court's urging, the parties filed cross motions for summary judgment. Interpreting G.L. c. 183A as intending to exempt the condominium form of ownership from the common-law doctrine of merger, the Land Court judge granted the McCabes' motion for summary judgment and denied the trustees' motion, declaring the easement legally enforceable. We affirm the summary judgment in favor of the McCabes.

Background. Our standard of review requires that we examine the evidence in the light most favorable to the nonmoving party and "uphold an order granting summary judgment if the judge ruled on undisputed material facts and his ruling was correct as a matter of law." O'Rourke v. Hunter, 446 Mass. 814, 821, 848 N.E.2d 382 (2006). Where, as here, the parties did not contest any of the material facts and the question to decide was solely one of law, the matter was appropriately decided pursuant to a summary judgment. The following facts are taken from the undisputed summary judgment record.

In April, 1986, Oscar F. Weisser, trustee of the Weisser Family Trust, conveyed a parcel of land (beach parcel) to Robert G. Weisser (Weisser). The beach parcel lies between County Road (Route 6A) in North Truro and "the waters of Cape Cod Bay." In December, 1988, Oscar F. and Madelyn O. Weisser transferred another parcel of land to Weisser. This parcel (inland parcel) abuts the northeasterly sideline of Route 6A and lies directly across Route 6A from the beach parcel.

In September, 1989, Weisser simultaneously executed and recorded a master deed creating the condominium on the beach parcel, which consisted of common areas and ten residential units located in seven buildings, and a declaration of trust for the condominium owners' organization. At the same time, Weisser recorded the "Plan of Land in (North) Truro as surveyed for Robert G. Weisser depicting the Ocean Breeze Condominium" (plan). The master deed describes the location of the condominium by reference to a detailed description of the beach parcel, a copy of which was attached to the master deed as Exhibit "A."

The master deed states that the common areas shall "consist of ... [t]he land described in Exhibit `A' together with the benefit of and subject to the rights and esements [sic] referred to in Exhibit `A'." It also provides that "[a]ll present and future owners ... shall be subject to, and shall comply with, the provisions of the Master Deed" and "[t]he acceptance of a deed or conveyance or entering into possession of any Unit shall constitute an agreement that ... the provisions of this Master Deed ... are accepted and ratified by such owner." Exhibit "A" to the master deed states that "[t]he premises are conveyed subject to the reservation of [Weisser] of a right of way four (4') feet in width running from Route 6A to Cape Cod Bay as shown on the [plan] ... together with the right to use the beach area for bathing, boating and other recreational purposes. Said right of way ... is appurtenant to other land of [Weisser] located on the northerly side of State Highway Route 6A [i.e., the inland parcel]." The plan depicts the disputed way as an "easement 4' wide" that runs southwesterly for the entire length of the beach parcel from the southwesterly sideline of Route 6A to Cape Cod Bay. As shown on the plan, the disputed easement crosses common areas of the condominium described as "gravel parking area," "patio block sidewalk," "block patio," and "beach."

At this crucial juncture, Weisser simultaneously owned the inland parcel in fee simple absolute and was the sole trustee and owner of all the individual units in the condominium.

Shortly after recording the master deed, declaration of trust, and plan, Weisser conveyed the first condominium unit. Between August, 1990, and July, 1997, Weisser sold another six condominium units. In July, 1998, Weisser conveyed the inland parcel to the McCabes. After this transfer and by June, 1999, Weisser had sold all the remaining condominium units to various third parties.

In June, 2005, the trustees filed a verified complaint in Land Court, seeking a declaration that the reservation of the easement was void ab initio pursuant to the common-law doctrine of merger.

Discussion. Easements, including rights of way, are limited, nonownership, and nonpossessory interests in realty. M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87, 88 n. 3, 92, 809 N.E.2d 1053 (2004). A right of way provides rights of ingress, egress, and travel over the land subject to the easement. See Crullen v. Edison Elec. Illuminating Co., 254 Mass. 93, 94, 149 N.E. 665 (1925); Nantucket Conservation Foundation, Inc. v. Russell Mgmt., Inc., 380 Mass. 212, 216, 402 N.E.2d 501 (1980). The law in this Commonwealth is well-settled that grantors may create easements for themselves over lands being conveyed to grantees by including specific reservations in the instruments of conveyance. See Eno & Hovey, Real Estate Law § 8.11 (4th ed.2004). "[B]y a reservation[,] a grantor reserves some new thing to himself, not in existence before, out of the granted premises, such as ... an easement." Stockwell v. Couillard, 129 Mass. 231, 233 (1880).

It is also well-settled that a developer may reserve nonownership interests in condominium property without conflicting with G.L. c. 183A. See Commercial Wharf E. Condominium Assn. v. Waterfront Parking Corp., 407 Mass. 123, 128-129, 552 N.E.2d 66 (1990), S.C., 412 Mass. 309, 588 N.E.2d 675 (1992) ("by enacting G.L. c. 183A ..., the Legislature did not intend to preclude ... nonownership interests in condominium land"). In Commercial Wharf, the court determined that, in the absence of express statutory language to the contrary, common-law principles were to be applied to the condominium form of property ownership. See id. at 129, 552 N.E.2d 66. Since "[n]othing in [G.L. c. 183A] purports to prevent the existence of nonownership interests in the common areas," and because grantors may reserve easements in property conveyed in this Commonwealth, condominium land may also be burdened by such servitudes without violating the condominium statute. Id. at 130, 552 N.E.2d 66.

A line of cases after Commercial Wharf have enumerated the types of nonownership interests that may be reserved and how such reservations might be effectuated in compliance with G.L. c. 183A. See Beaconsfield Towne House Condominium Trust v. Zussman, 416 Mass. 505, 508, 623 N.E.2d 1115 (1993) (since developer entered into long-term lease of portion of property before declaring property as condominium, developer did not violate G.L c. 183A); Strauss v. Oyster River Condominium Trust, 417 Mass. 442, 446, 631 N.E.2d 979 (1994) (acknowledging developer's right to "retain ... property interest" by express reservation in master deed); Queler v. Skowron, 438 Mass. 304, 314, 780 N.E.2d 71 (2002) (allowing reservation in master deed and reservation of right of reverter in "unphased portions of" condominium development); CBK Brook House I Ltd. Partnership v. Berlin, 64 Mass.App.Ct. 913, 913-914, 834 N.E.2d 1251 (2005) (allowing reservation of easement by amendment to master deed, when no units had yet been sold).

Without a clear expression from the Legislature breaking with the common law, the common law will apply. See Pineo v. White, 320 Mass. 487, 491, 70 N.E.2d 294 (1946) ("statute ... not to be interpreted as effecting ... a repeal of the common law unless [such] intent ... is clearly expressed"). See also Kaplan v. Boudreaux, 410 Mass. 435, 442, 573 N.E.2d 495 (1991) (although "condominiums are essentially creatures of statute," when the statute is silent, "look to the common law" for guidance); Berish v. Bornstein, 437 Mass. 252, 263, 770 N.E.2d 961 (2002) (extending common-law implied warranty of habitability to residential condominiums). Neither G.L. c. 183A nor case law makes express exception to the doctrine of merger applying to the condominium form of ownership.

Massachusetts courts have recognized the doctrine of merger at least since the mid-nineteenth century.⁴ See Ritger v. Parker, 62 Mass. 145, 8 Cush. 145, 146-150 (1851); Atlanta Mills v. Mason, 120 Mass. 244, 251-252 (1874); Rice v. Vineyard Grove Co., 270 Mass. 81, 86, 169 N.E. 664 (1930); Parkinson v. Assessors of Medfield, 398 Mass. 112, 114 n. 3, 495 N.E.2d 294 (1986); Myers v. Salin, 13 Mass.App.Ct. 127, 142, 431 N.E.2d 233 (1982); Cheever v. Graves, 32 Mass.App.Ct. 601, 606-609, 592 N.E.2d 758 (1992); Murphy v. Olsen, 63 Mass.App.Ct. 417, 420 n. 12, 826 N.E.2d 249 (2005). The doctrine requires that a servitude terminates "when all the benefits and burdens come into a single ownership." Restatement (Third) of Property (Servitudes) § 7.5 (2000). A "servitude is a right, which one proprietor has to some profit benefit, or beneficial use, out of, in, or over the estate of another proprietor." Ritger v. Parker, 62 Mass. 145, 8 Cush. at 147. When the dominant and servient estates come into common ownership there is no practical need for the servitude's continued existence, as the owner already has "the full and unlimited right and power to make any and every possible use of the land." Ibid.

Two requirements must be present for the doctrine of merger to apply in Massachusetts. First, the unity of title between the affected...