Noble v. Murphy

• Decision Date: 06 May 1993
• Docket Number: No. 90-P-1021,90-P-1021
• Citation: Noble v. Murphy, 612 N.E.2d 266, 34 Mass.App.Ct. 452 (Mass. App. 1993)
• Parties: Brian S. NOBLE & others, trustees, 1 v. John MURPHY, individually and as executor. 2
• Court: Appeals Court of Massachusetts

Page 266

612 N.E.2d 266

34 Mass.App.Ct. 452

Brian S. NOBLE & others, trustees, ¹ v. John MURPHY, individually and as executor. ²

No. 90-P-1021.

Appeals Court of Massachusetts Norfolk.

Argued Jan. 10, 1992.

Decided May 6, 1993.

Harry D. Quick, III, Worcester, for defendant.

Seth Emmer, Boston (Constance M. Hilton, Cambridge, with him), for plaintiffs.

Before FINE, JACOBS and PORADA, JJ.

JACOBS, Justice.

The plaintiffs, as managers of a condominium established under G.L. c. 183A, sought the removal of two pet dogs from a condominium unit owned by John Murphy and Margaret Wilson. ³ They based their action upon a condominium by-law banning all pets from any housing unit or common area of the condominium. They also sought to enforce by-laws providing for the assessment of a $5 per day per violation penalty and payment by the defendants of the "costs and expense of eliminating" violations. The defendants, by answer and counterclaim, questioned the validity of the pet restriction and the enforceability of any fines and assessments based upon it. A judge of the Superior Court allowed the plaintiffs' motion for summary judgment and denied that of the defendants. Murphy and Wilson appealed from a judgment which thereafter was entered ordering them permanently to remove their dogs and to pay to the plaintiffs assessments for penalties, costs, and attorney's fees totalling $15,244.75. We affirm.

The pertinent facts are as follows: Established in 1973, "Weymouthport Condominium--Phase I" is a 271-unit complex managed by a trust of which the plaintiffs are trustees. The trust was formed pursuant to G.L. c. 183A, § 8(i ), to govern the management of the condominium and contained by-laws that incorporated rules and regulations which included a restriction against raising, breeding, or keeping any "animals or reptiles of any kind ... in any Unit or in the Common Elements ...," together with a provision, sometimes referred to as an amortization or no replacement rule, that protected the harboring of pets owned at the time of purchase of a unit. In 1979, the original trust by-laws were amended to provide that "[n]o animals, reptiles or pets of any kind shall be raised, bred, kept or permitted in any Unit or in the Common Elements...." The significant difference was that the pet restriction had ascended from rules and regulations to the by-laws. The amendment was enacted in response to the trustees' concern with pet problems and their understanding that Johnson v. Keith, 368 Mass. 316, 331 N.E.2d 879 (1975), had rendered unenforceable the pet restriction contained in the regulations. ⁴ The amendment also contained an amortization provision allowing unit owners and tenants "in occupancy prior to the recording of [the] amendment" to continue to keep in their unit any household pet owned by them at the time they purchased or rented their units. Also, the amendment made allowance for unit owners to have one household pet upon receipt of written permission of the trustees.

In September of 1983, Murphy and Wilson were notified by the manager of the condominium that a dog which they had acquired since purchasing their unit earlier that year was being kept by them in violation of the pet restriction amendment. After removing the dog, Murphy and Wilson, in November of 1983, and again in January of 1984, unsuccessfully sought permission to return it to the unit, the latter request being based upon Wilson's claimed permanent and total disability. In April, 1985, Murphy and Wilson moved out. After a period of renting out their unit, they reoccupied it in November, 1987. Upon being notified in May, 1988, that they were again in violation of the pet restriction, Murphy and Wilson requested and received permission to house their dogs (they had by then acquired a second dog) temporarily in their unit during weekends until October 1, 1988. When the dogs were not removed after that date, the plaintiffs imposed a fine of $5 a day and ultimately brought this action.

1. Validity of the pet restriction. The defendants claim the applicable standard for determining the validity of the pet restriction is that of "unreasonable interference" under G.L. c. 183A, § 11(e ), as inserted by St.1963, c. 493, § 1, which requires the by-laws of the organization of unit owners to "at least" contain such use restrictions "not set forth in the master deed, as are designed to prevent unreasonable interference with the use of [the owners'] respective units and of the common areas and facilities by the several unit owners." They argue that the question whether the presence of animals constitutes an unreasonable interference under the circumstances is one of material fact and therefore not suitable for resolution by summary judgment. They rely in large part on an affidavit of an expert in animal behavior who opines that "prohibition of all animals from the condominium units is more restrictive and burdensome than required to meet the statutory standard of preventing unreasonable interference with use of other units or the common areas." The affidavit points to animals such as goldfish and parakeets which "present[ ] no risk of interference of any kind to use of neighboring units or common areas." The argument misperceives both the thrust of the statute and the basic nature of condominium ownership.

Ownership of a condominium unit is a hybrid form of interest in real estate, entitling the owner to both "exclusive ownership and possession of his unit, G.L. c. 183A, § 4, and ... an undivided interest [as tenant in common together with all the other unit owners] in the common areas...." Kaplan v. Boudreaux, 410 Mass. 435, 438, 573 N.E.2d 495 (1991). It affords an opportunity to combine the legal benefits of fee simple ownership ⁵ with the economic advantages of joint acquisition and operation of various amenities including recreational facilities, contracted caretaking, and security safeguards. Central to the concept of condominium ownership is the principle that each owner, in exchange for the benefits of association with other owners, "must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property." Hidden Harbour Estates, Inc. v. Norman, 309 So.2d 180, 182 (Fla.Dist.Ct.App.1975). See Franklin v. Spadafora, 388 Mass. 764, 769, 447 N.E.2d 1244 (1983).

General Laws c. 183A, § 11(e ), permits restrictions on the use of residential units which are "designed to prevent" unreasonable interference by individual unit owners with the other owners' use of their respective units and the common areas and facilities. There is no prohibition against restrictions that, although patently designed to prevent such interference, also incidentally preclude generically similar uses that may not be as likely to encroach on the other owners' use of their units and the common areas and facilities. Close judicial scrutiny and possible invalidation or limitation of fundamentally proper but broadly drawn use restrictions, not expressly prohibited by the enabling statute, would deny to developers and unit owners the "planning flexibility" inherent in c. 183A. See Barclay v. DeVeau, 384 Mass. 676, 682, 429 N.E.2d 323 (1981). In Franklin v. Spadafora, 388 Mass. at 769, 447 N.E.2d 1244, the court upheld a by-law amendment restricting to two the number of condominium units which could be owned by one person or entity and noted that nothing in c. 183A prohibited the type of general restriction at issue even if the court assumed that tenants would not be less responsible than owners. Id. at 768-769 & n. 12, 447 N.E.2d 1244. The court stated that, viewed as a compromise between the desires of the majority and the right of an individual owner to use property as he or she desires, "the amendment is a reasonable means of achieving the majority's proper goal." Id. at 769-770, 447 N.E.2d 1244. See Woodvale Condominium Trust v. Scheff, 27 Mass.App.Ct. 530, 534-535, 540 N.E.2d 206 (1989) (a condominium association may prohibit the operation of a family day-care business in a unit notwithstanding that the enterprise's interfering effect on other unit owners is "minor ... modest[ ] ... [and] benign ...").

"The most common standard of review [of condominium use restrictions] is equitable reasonableness." Goldberg, Community Association Use Restrictions: Applying the Business Judgment Doctrine, 64 Chi.-Kent L.Rev. 653, 655 (1988). Franklin v. Spadafora, 388 Mass. at 770-772, 447 N.E.2d 1244, can be read to favor such a test. Its formulation is commonly attributed to Hidden Harbour Estates, Inc. v. Norman, supra, a Florida decision cited in both Franklin v. Spadafora, supra, 388 Mass. at 769, 447 N.E.2d 1244, and Woodvale Condominium Trust v. Scheff, 27 Mass.App.Ct. at 533, 540 N.E.2d 206, and in which it is stated that: "the test is reasonableness. If a rule is reasonable the association can adopt it; if not, it cannot. It is not necessary that conduct be so offensive as to constitute a nuisance in order to justify regulation thereof." Hidden Harbour Estates, Inc. v. Norman, 309 So.2d at 182. This approach recognizes the discretion of the majority of unit owners while at the same time limiting their rule-making authority to those matters "that are reasonably related to the promotion of the health, happiness and peace of mind of the unit owners." Hidden Harbour Estates, Inc. v. Basso, 393 So.2d 637, 640 (Fla.Dist.Ct.App.1981). We recognize that a somewhat different standard of review may be implicated where, in contrast to this case, a restriction is promulgated after the owner who is in violation of the rule acquires his unit. See Franklin v. Spadafora, supra, 388 Mass. at 772-774, 447 N.E.2d 1244.

When enacting the pet restriction in issue, the trustees expressed concern with "pet problems." The record indicates that they had received several complaints involving dogs and one that concerned a boa constrictor. Unit owners are not...