Rauseo v. Bd. of Assessors of Bos.

• Decision Date: 26 November 2018
• Docket Number: No. 18-P-288,18-P-288
• Citation: 114 N.E.3d 1011,94 Mass.App.Ct. 517
• Parties: Michael RAUSEO, Trustee, v. BOARD OF ASSESSORS OF BOSTON.
• Court: Appeals Court of Massachusetts

94 Mass.App.Ct. 517

114 N.E.3d 1011

Michael RAUSEO, Trustee,¹

v.BOARD OF ASSESSORS OF BOSTON.

No. 18-P-288

Appeals Court of Massachusetts, Suffolk..

Argued October 11, 2018.

Decided November 26, 2018.

Douglas M. Kiernan, Boston, for the taxpayer.

Adam Cederbaum, Assistant Corporation Counsel.

Peter Antell, Boston, for Karen Gacicia & another, amici curiae, was present but did not argue.

Present: Green, C.J., Hanlon, & Maldonado, JJ.

GREEN, C.J.

This appeal presents the question whether parking easements reserved by a condominium developer in the documents establishing the condominium, freely alienable and not appurtenant to any condominium unit, are (as the defendant board of assessors contends) subject to taxation as real property, or (as the plaintiff contends) ineligible for such taxation under G. L. c. 183A, § 14, because they are already taxed as part of the condominium common areas. The Appellate Tax Board agreed with the defendant, affirmed the denial of the plaintiff's applications for abatement, and the plaintiff appealed. We affirm.

Background. By condominium master deed dated February 15, 2006, and duly recorded with the Suffolk County registry of deeds, certain land and buildings located at 80 Broad Street in Boston were submitted to the provisions of G. L. c. 183A to form the Folio Boston Condominium (condominium). The condominium contains ninety-nine units, of which ninety-six are residential and three are commercial. As required by G. L. c. 183A, § 8, the master deed included, among other information, the unit designation of each unit; a statement of each unit's location, approximate area, and number of rooms, and the immediate common area to which it has access; and a description of the common areas and facilities and the proportionate interest of each unit therein.

Section 4(c)(ii)(a) of the master deed describes the "condominium parking area," including the "parking easements" located therein. In particular, the declarant under the master deed "reserves to itself and its successors and assigns and its or their designees, the exclusive right and easement from time to time to sell, convey, lease, rent or license easements for each of the Parking Spaces (the ‘Parking Easements;’ individually, a ‘Parking Easement’)." That section further provides that the declarant may sell, lease, or otherwise convey parking easements to unit owners or others, and that the parking easements shall be easements in gross. Parking easement owners also may convey any parking easement(s) they hold to unit owners or to nonunit owners, entirely separate from any interest in a condominium unit. The parking easements themselves are not appurtenant to any unit in the condominium, and do not relate to a designated parking space.² The "condominium parking area" is described as located within certain specified limited common areas of the condominium. Section 4(c)(ii)(d) provides that, in the event the condominium is removed from the provisions of G. L. c. 183A, the parking easements will be deemed extinguished, but that the owners of the parking easements will be entitled to any insurance proceeds, eminent domain proceeds, or other financial remuneration obtained upon termination of the condominium and attributable to the parking easements. Parking easement owners bear all risk of loss arising from their easement interest, and they agree to indemnify, defend, and hold the condominium unit owners association harmless against all claims arising therefrom. All expenses associated with the parking easements are borne by parking easement owners and are not charged to condominium unit owners as part of common area expenses. Conversely, parking easement owners make no contribution to common area expenses, other than those attributable to the parking area.

By letter dated October 22, 2002, the Department of Revenue issued a letter to the defendant, authorizing it to assess separately from condominium units any easements in condominium parking areas that are easements in gross and not appurtenant to any condominium unit. The defendant thereafter apparently began assessing such parking easements as separate property interests; in the present case, at least, the defendant assessed and taxed thirteen parking easements owned by the plaintiff, and the plaintiff filed for abatements. The defendant denied the plaintiff's applications for abatement, and the plaintiff appealed to the Appellate Tax Board, which affirmed the denials.³ This appeal followed.

Discussion. Our role on review of a decision by the Appellate Tax Board is well settled: "[w]e will not modify or reverse a decision of the board if the decision is based on both substantial evidence and a correct application of the law." Boston Professional Hockey Ass'n, Inc. v. Commissioner of Revenue, 443 Mass. 276, 285, 820 N.E.2d 792 (2005). "Although the proper interpretation of a statute is for a court to determine, we recognize the [tax] board's expertise in the administration of tax statutes and give weight to the [tax] board's interpretations." Adams v. Assessors of Westport, 76 Mass. App. Ct. 180, 183, 920 N.E.2d 879 (2010), quoting Raytheon Co. v. Commissioner of Revenue, 455 Mass. 334, 337, 916 N.E.2d 372 (2009). The facts in the present case are undisputed, and we are solely concerned with the question whether the Appellate Tax Board correctly interpreted the law.

"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 ...." Queler v. Skowron, 438 Mass. 304, 310, 780 N.E.2d 71 (2002). "A condominium is created by a ‘declarant’ who records a master deed that ‘submits’ land to the provisions of G. L. c. 183A." Id. at 311, 780 N.E.2d 71. In imposing conditions or limitations on property submitted to G. L. c. 183A, "there is nothing in § 5 (c ) [of that chapter] that prohibits the declarant of a phased development from retaining such an interest by operation of the master deed itself." Id. at 313, 780 N.E.2d 71. See CBK Brook House I Ltd. Partnership v. Berlin, 64 Mass. App. Ct. 913, 913-914, 834 N.E.2d 1251 (2005). And the right to impose limitations on the interests submitted to the condominium form of ownership under the master deed is not limited to the retention of the right to withdraw land from the condominium ownership rather than proceed with the development of planned phases; "[i]n Commercial Wharf E. Condominium Ass'n v. Waterfront Parking Corp., [407 Mass. 123,] 128-130 [552 N.E.2d 66 (1990), the Supreme Judicial Court] ... concluded that a developer properly could retain an interest in land described in the master deed, but by doing so, ... ‘its retention does not constitute a division of the common area’ " in violation of G. L. c. 183A, § 5(c ). Queler, supra.

The retained interest at issue in Commercial Wharf E. Condominium Ass'n, 407 Mass. at 125, 552 N.E.2d 66, was an easement for parking, established by a "Declaration of Covenants and Easements" recorded immediately prior to the recording of the master deed establishing the condominium. Similarly, in CBK Brook House I Ltd. Partnership, 64 Mass. App. Ct. at 913, 834 N.E.2d 1251, the condominium...