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Condominium Documents in Massachusetts

Part I: Creating a Condominium in Massachusetts

Condominiums are a hybrid form of ownership that combines individual and exclusive ownership and possession (subject to restrictions) with shared ownership. Generally, ownership of the individual unit is exclusive while ownership of the common areas is shared.

A condominium is established by filing a Master Deed with the Registry of Deeds and placing the condominium under the control of the Massachusetts Condominium Law (Chapter 183A of the Mass. General Laws). The Master Deed governs the overall Condominium (the units and the common areas); sets forth the title matters; establishes the rights of the unit owners; defines the units and the common areas; specifies what the unit owners are individually responsible for as far as upkeep, maintenance, and replacement; and establishes the interests the unit owners have in the common areas. The Master Deed will have architectural plans attached, and those plans will show the entire Condominium, the units, and the common areas. Additionally, the Master Deed must include the following:

1. A statement to the effect that the owner is creating a condominium to be governed by the
provisions of Mass. General Laws Chapter 183A.

2. A description of the land on which the building or buildings and improvements are located.

3. A description of each building stating the number of stories, the number of units and the
principal materials of which it is constructed.

4. The unit designation of each unit, and a statement of its location, approximate area, number of
rooms, and immediate common area to which it has access, and any other data necessary for
its proper identification.

5. A description of the common areas and facilities and the proportionate interest of each unit
therein.

6. A set of the floor plans of the building or buildings, showing the layout, location, unit numbers
and dimensions of the units, stating the name of the building or that it has not a name, and
bearing the verified statement of a registered architect, registered professional engineer, or
registered land surveyor, certifying that the plans fully and accurately depict the layout, location,
unit number and dimensions of the units as built.

7. A statement of the purposes for which the building and each of the units are intended and the
restrictions, if any, as to their use.

8. The method by which the Master Deed may be amended.

9. The name and mailing address of the corporation, trust or association which has been formed
and through which the unit owners will manage and regulate the condominium, together with a
statement that such corporation, trust or association has enacted by-laws pursuant to this
chapter. If a trust or unincorporated association is named, the Master Deed shall also set forth
the names of the trustees or managing board.

A prospective purchaser of a condominium unit should have the Master Deed reviewed carefully by an experienced attorney. In reviewing the Master Deed, especially for newer condominiums, the reviewer should be sure that the document makes sense as far as responsibilities of the individual unit owners and that nothing of substance is missing. The reviewer should ask whether the Master Deed will work as a common scheme and whether all important issues are covered and explained in a manner that will help prevent confusion, disputes, or lawsuits down the road. The reviewer should be especially cognizant of the following issues:

1. The boundaries of the units
2. The description of the common areas
a. Utilities & Plumbing
b. Foundations, Support Beams, Structures
c. Roof Decks
3. Parking issues
4. Pet issues
5. Storage allocation
6. Prohibitions on structural or cosmetic changes
7. Rights of First Refusal (whereby a unit must be first offered to the organization of unit owners
for sale before it can be sold to a third party)

Part II: The Operation and Government of Condominiums in Massachusetts

A Condominium must be governed by some sort of body that is legally given that responsibility. Usually, this is accomplished by recording a document known and the Condominium Trust and By-Laws (the “By-Laws”) along with the Master Deed. The By-Laws must include:

1. The method of providing for the necessary work of maintenance, repair and replacement of the
common areas and facilities and payments therefore, including the method of approving payment
vouchers.
2. The manner of collecting from the unit owners their share of the common expenses.
3. The procedure for hiring all personnel, including whether or not a manager or managing agent
may be engaged.
4. The method of adopting and of amending administrative rules and regulations governing the
details of the operation and use of the common areas and facilities.
5. Such restrictions on and requirements respecting the use and maintenance of the units and the
use of the common areas and facilities, not set forth in the Master Deed.

The By-Laws may also contain information regarding a method for determining the fair market value of the unit and of the Condominium in cases of repair/restoration/improvements by submitting the matter to arbitration. And if the organization of unit owners has a right of first refusal for all sales of units, that fact usually appears in the By-Laws.

Perhaps of greatest interest to unit owners, the By-Laws also contain information about the Trustee duties and obligations, and spell out the unit owners’ rights in disputes with the board of Trustees. So, for example, the By-Laws may address:

1. The Condominium Association’s power to own, convey, encumber, lease and otherwise deal with
units conveyed to it or purchased by it as the result of enforcement of the lien for common
expenses; any right of first refusal; or otherwise.
2. The Condominium Association’s duty to obtain insurance on the common areas and facilities.
3. Trustee Issues, such as the number of Trustees required, their duties, responsibilities and
liabilities, and how successor Trustees are appointed.
4. Unit Owner Issues, such as when annual meetings and the Unit Owners’ rights at such
meetings.
5. Who is responsible for which expenses and repairs?
6. The Condominium Association’s power to impose charges, interest for the
late payment of common expense assessments or other charges, and to levy
reasonable fines for violations of the condominium documents.
7. The Condominium Association’s duty to appoint a manager or managing agent,
or to be self-managed.
8. Provisions regarding record keeping and the unit owners’ right to inspect the
books and records of the Association.

The individual units of a Condominium are transferred between seller and buyer through the Unit Deed. The Unit Deed must indicate it relates to a condominium and is subject to the provisions of Mass. General Laws Chapter 183A. The Unit deed must contain a description of the land or the post office address of the property; the Book, Page, and date of recording of the Master Deed; the unit designation of the unit in the Master Deed and any other data necessary for its proper identification; a statement of the use for which the unit is intended and the restrictions, if any, on its use; and the undivided interest appertaining to the unit in the common areas and facilities.

The first Unit Deed of each unit must also have a copy of the portion or portions of the plans filed with the Master Deed showing the unit designation of the unit being conveyed and of the immediately adjoining units, fully and accurately depicting the layout of the unit, its location, dimensions, approximate area, main entrance and immediate common area to which it has access.

When problems develop with the management of Condominiums, those conflicts often arise from flaws in the Condominium Documents, such as:

1. Common areas left undefined;
2. An unclear statement of the units’ percentage interest in common areas;
3. Conflicting provisions;
4. Missing provisions which are required by law;
5. Unclear definitions, especially when it comes to making repairs or replacements; and
6. The assignment of the responsibility for expenses to individual unit owners for major repairs to
the Condominium, as opposed to their assignment to the Condominium Association.

Experienced attorneys will help their clients avoids these types of disputes and issues by ensuring that the Condominium Documents are complete and in accordance with state law.

(Submitted by Atty. Steven Bloom, of Cushner and Bloom in Brookline)

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