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By Jocelyn Campbell, Esq.
Rudolph Friedmann, LLP
Boston, Massachusetts

For those who own condominiums in Massachusetts and are fortunate enough to also have a balcony, this article is for you. Recently, the Massachusetts Appeals court decided Sano v. Tedesco, No. 12-P-746, August 28, 2013, a case where homeowners (non-balcony unit owners) brought suit against their condo association in an attempt to prevent the condominium association from paying for the replacement of balconies. The support beams for certain units with balconies had deteriorated and the balcony unit owners wanted the condominium association to pay for the repairs in full. The Superior Court judge ruled that the balconies and support beams supporting them were part of the units and therefore the individual unit owners were responsible to pay for the repairs and the case was appealed. The Massachusetts Appeals court affirmed that balconies are part of the adjacent units but held that the support beams were actually common areas and therefore the responsibility of the condominium association.

In coming to this conclusion, the appeals court looked closely at M.G.L. c. 183 §1 and the master deed, noting that the statute governing the master deed is an enabling statute and therefore sets out a framework of terms and definitions while allowing the individual developers flexibility.

M.G.L. c. 183A §1 contains definitions that are referred to by the court as “default provisions.” The statue describes common areas and facilities to include in part:

“The foundations, columns, girders, beams, support, party walls, common walls, main walls, roofs, halls, corridors, lobbies, public stairs and stairways, fire escapes and entrances and exists of the buildings.”

And individual units to include: “a part of the condominium including one or more rooms, with appurtenant areas such as balconies, terraces and storage lockers if any are stipulated in the master deed as being owned by the unit owner, occupying one or more floors or a part or parts thereof, including the enclosed space therein, intended for any type of use and with a direct exit to a street or way to a common area leading to a street or way.”

Looking at the master deed for this case, the Court noted the balconies were largely ignored by the drafters of the Master Deed, with the exception of a reference in the Exhibit A and their inclusion in the square footage of the units in question. The Master Deed did however specifically include the building’s components such as “structural columns” and “beams” in part of the definition of “Common Areas and Facilities”. The Court’s conclusion was also supported by the grammar used and the fact the support beams were located largely in common areas such as the area in between the floor joists.

Clients often call with questions about their condominiums. Unit owners in smaller condominiums find dealing with repairs and sometimes with trustees to be challenging. We recently reviewed condominium documents for a client who wanted to purchase a condominium with a roof deck. The client was surprised to learn it was clearly stated in the Master Deed that the owner of his particular unit, who has exclusive use of the roof deck would be responsible to pay for the removal and replacement of the roof deck when the roof needed repair.

The moral of the story is to read your condominium documents carefully, including the Master Deed, the By Laws and the Budget, read also the Condominium Insurance Policy. Make sure you understand what you are buying into; if possible, review prior meeting minutes and check to see if the Budget contains sufficient reserves to handle a catastrophe such as this.

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