Kessler v. Harrington
| Decision Date | 08 June 2011 |
| Docket Number | SUCV200804908E |
| Parties | Edward Kessler et al. v. Mina Harrington No. 116117 |
| Court | Massachusetts Superior Court |
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Macdonald, D. Lloyd, J.
D Lloyd Macdonald, Justice of the Superior Court
Before the Court is the complaint of the plaintiff trustees of the One Chestnut Condominium Trust (the “Condominium” or “One Chestnut”) seeking equitable and statutory relief pursuant to G.L.c. 183A. The case was brought against the defendant unit owner for failing to provide access to the trustees’ contractors for purposes of inspecting and remediating an allegedly dangerous condition arising from the circumstance that the defendant’s fireplace shares a common flue with that of the furnace that heats all units in the Condominium. The interior wall of the chimney flue had substantially deteriorated, and the trustees’ response to that condition precipitated the conflict underlying the present action.
The case was tried to the Court over a period of nine days, and 87 exhibits were entered. The Court took a view of the premises at the outset of the trial.
The Condominium is located at One Chestnut Street on the south slope of the Beacon Hill section of Boston. It is a five-story brick building constructed in the early 1800s at the corner of Walnut Street. It is comprised of eleven residential units. The original master deed and the declaration of trust were executed and recorded in 1972. Exhibits 1 and 2. The building is divided into an “A” side and a “B” side, with (as one faces the structure from Chestnut Street) the A side on the right and the B side on the left. The A side abuts Walnut Street.
The defendant Mina Harrington (the “Defendant” or “Harrington”) purchased Unit 1A in 1973 from the developers of the property. Exhibit 50 (copy of deed). The unit is comprised of a single bedroom, living room, library kitchen and bathroom. Exhibit 80. There are two fireplaces in the unit, one in the bedroom and one in the living room, but the living room fireplace is the only one that has functioned while the Defendant has owned the unit. The living room fireplace will be referred to as the “Fireplace.”
Harrington is married to Curt Deininger (“Deininger”) and was at the time that she purchased the apartment. Over the years, Harrington essentially ceded to Deininger responsibility for the dealing with the Condominium and its trustees. She did not attend any meetings of the unit owners. At trial, Deininger accepted as accurate the trustees’ counsel’s characterization that “Everything was you” as far as his wife’s relationship with the administration of the Condominium was concerned.
Harrington is an antiquarian bookseller and (by self-description) a “housewife.” Deininger, although he studied physics at MIT for several years, made his career as an art dealer, art appraiser and decorator, specializing in 18th-century furniture and paintings. Their apartment is decorated with such period pieces, and it was evident to the Court that both Harrington and Deininger cared deeply about such pieces and the distinctive character of the apartment to which the pieces contributed.
As noted, the Fireplace at issue is located in the living room. It is visible immediately upon entrance into the apartment and forms the decorative centerpiece of the room. Exhibit 57A. The Fireplace is coal, not wood, burning. It is shallow in depth (8 1/2") and narrow (19" across the front). Exhibit 59.
Deininger described the Fireplace and the living room as “the soulful representation to us of an 18th century room.” Harrington credibly testified that she would not have bought the apartment if the Fireplace had not been working.
Deininger’s and Harrington’s use of the Fireplace, however, was episodic. According to Harrington, on their first night in the apartment, she and Deininger lit a fire. Thereafter in the late 70s, the fireplace was also used, but they suspended use when (by Deininger's testimony) "life overwhelmed [them]." However, during the "Reagan years, " according to him, "life was slower, " and they resumed use of the Fireplace. In the 1990s, with signs of the interior of the chimney deteriorating (a process described by Deininger as "spalling"—plaster lining and pieces of brick coming loose), the Fireplace flue was blocked with cardboard and not used again until the events leading to the case at hand. At all times, lighting a fire was not easy (Deininger testified that it was a "bugger" to get lit), and the burning coal emitted residual dust.
On the A side of One Chestnut, there are two chimneys. Exhibits 55A-C. The chimney servicing the Fireplace is located in the building’s southeast corner adjacent to the Walnut Street/Chestnut Street intersection. The flues in the chimneys are constructed of brick and mortar and are lined with clay tiles. In the summer of 2006, the trustees were informed that several A side units were experiencing leaks and it was suspected that the condition of the chimneys was at least partly responsible. Deininger, who for approximately twenty years had overseen the routine maintenance of the Condominium and functioned as its manager, volunteered to examine the situation.[1] The trustees also asked a roofing and chimney contractor, Boston’s Best Chimney (“Boston’s Best”) to advise.
Deininger found “serious problems” with the southeast chimney and prepared two reports for the trustees. Exhibits 3 and 4. He wrote that the chimney “carries the burner’s [i.e., the furnace’s] sulphurous gases to the atmosphere. Over the years the flue’s membrane has been eroded by water and temperature contractions (so much so that approximately 10-15 gallons of debris are removed twice a year during chimney clean out.” Exhibit 4. He recommended that the “flue needs a liner as far down as one can be snaked (preferably, stainless steel) to protect the brick of the chimney from spalling.” Exhibit 3.
When the chimney contractor, Boston’s Best, examined the chimney in 2006, it advised the building manager, Brooks Porter (“Porter”) of Street & Company, that there was, indeed, evidence of serious deterioration. He also reported that the Condominium’s furnace, which was located in the basement immediately under Harrington’s apartment, vented into the same flue as Harrington’s Fireplace. Such dual venting was a direct violation of the Massachusetts state building code. In an email to his fellow trustees, the chair, Michael Lampert (“Lampert”) described the dual venting situation as “a big no-no.” Exhibit 48. Boston’s Best also warned the trustees that accumulating debris at the base of the flue risked an explosive fire.
It is the events which ensued in response to the trustees being informed of this code violation and the risks posed by the state of the chimney that gave rise to the dispute leading to the present lawsuit. The trustees were advised that to fix the chimney properly, they ought to line the entire flue with sheet metal to the juncture of the furnace exit pipe. The problem with this solution, however, was that by the trustees so lining the flue, the Harrington Fireplace’s venting access to the flue would be cut off and the Fireplace would be rendered inoperable.
After receiving Deininger’s and Boston’s Best’s reports, the trustees in 2006, hired GMA Architects & Engineers, P.C. (“GMA”) to advise them further. GMA, in turn, engaged the consulting firm, SED Associates Corp. (“SED”) to evaluate the chimney situation. In early January 2007, the trustees were given SED’s report. Exhibit 5. The report concluded: “[W]e concur with [Boston’s Best’s] observation that the existing chimney is in need of major repair and lining.” SED continued:
In transmitting the SED report to his fellow trustees on January 9th, trustee Archie Sanchez noted in his email that “[t]he evaluation seems to be quite thorough and distressing.” Exhibit 70. Lampert (chair of the trustees) responded, “My sense is that we need clarification of our alternatives.” Id. Lampert noted that a further inspection was needed of the intersection of the furnace vent and the Harrington Fireplace vent into the common flue.
Early on, it became a problem for Porter and the contractors he engaged for the Condominium to secure access to Harrington’s apartment. Deininger insisted on lengthy notice, and on several occasions, despite timely notice, access was denied by Deininger because of some intervening circumstance.
Deininger and Harrington were concerned in good faith about the risk of damage to their valuable furnishings and paintings on account of the contractors’ presence and work to be done in and around the fireplace. To protect the decorative interior of the living room during such inspections, Harrington and Deininger constructed a canvas tunnel to separate the space from the front door to the fireplace from the remainder of the living room. (On the occasion of the Court’s view of the premises, the canvas tunnel was in place.)
In February 2007, what was referred by the parties as a “near fire” broke out in the furnace, causing smoke and soot to permeate the hallways of the Condominium. Peter...
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