By the Court (Cypher, Smith & Fecteau, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Jose A. Cotto, a unit owner in the Clarendon/Warren Condominium in Boston, appeals from a decision of a Superior Court judge allowing summary judgment for the trustees, who charged Cotto with fines for spreading bird seed to feed pigeons on sidewalks adjacent to the condominium property. The judge concluded that Cotto owed $61,709.15 in unpaid fines and the trustees' attorney's fees, and that this sum constituted a lien against his condominium unit. The judge authorized the sale of his unit to satisfy the lien. A separate judgment entered ordering the sale.
Background. Between June 1, 2007, and April 1, 2008, Cotto's fines accrued, and the trustees filed a complaint in the Superior Court on January 17, 2008, seeking payment. Following discovery, the parties filed cross motions for summary judgment on June 8, 2010. By order dated December 20, 2010, the judge allowed the trustees' motion and denied Cotto's motion. In allowing the trustees' motion for summary judgment, the judge ruled that they had the authority to assess fines against Cotto as a penalty for violation of the condominium's master deed, and that they had determined that Cotto's pigeon feeding was offensive conduct harming the unit owners.
In answering the complaint, Cotto raised counterclaims of abuse of process, breach of fiduciary duty, intentional infliction of emotional distress, restitution, and violation of G.L. c. 93A. The trustees filed a special motion to dismiss the abuse of process counterclaim pursuant to the anti-SLAPP statute, G.L. c. 231, § 51H. Another Superior Court judge allowed the trustees' motion and allowed their subsequent motion for attorney's fees of $6,795. The judge dismissed the other counts of the counterclaim. No issue concerning that dismissal is raised in the present appeal.
On appeal, Cotto principally argues that the fines were improperly imposed, and that the judge erroneously drew an inference against him that his pigeon feeding directly impacted the condominium property.
Discussion. Our review proceeds under well-known principles, examining the summary judgment materials de novo to determine whether there is no genuine issue of material fact and whether the moving party is entitled to judgment as matter of law. MacLean v. Delinsky, 407 Mass. 869, 874 (1990).
1. The fines. Cotto was first asked to stop spreading bird seed in a conversation with the trustees' property manager, who confirmed in a letter to Cotto on April 14, 2006, that Cotto had agreed to place bird seed off the condominium's property. By letter dated May 30, 2007, a new property manager asked Cotto to immediately stop spreading bird seed “around the buildings,” as the bird seed was attracting rodents to the condominium, as well as to a nearby school and another condominium. The letter further stated that, as Cotto had been warned in the past, he would be fined twenty-five dollars per day until he stopped and that he would also be responsible for additional costs in dealing with the pest control problem.
In a follow-up letter of June 11, 2007, the property manager asserted that Cotto had continued to feed the birds in “direct defiance” of the previous request and stated that the trustees began fining him twenty-five dollars per day on June 1. On December 3, 2007, Cotto was notified that because he was unwilling to adhere to previous requests, the trustees began to fine him fifty dollars per day as of that date.
On April 10, 2008, an attorney for Cotto forwarded a letter signed by Cotto to the property manager, stating that he had stopped feeding the birds in and around the condominium property in January.
2. The disputed facts. In his summary judgment materials, Cotto argued that the imposition of the fines was improper for the following reasons.
a. The trustees cited no rule or regulation in support of their assertion that the fines were based on Cotto's “offensive conduct.” While a condominium board may impose reasonable fines for violations of a master deed, trust, by-laws, restrictions, or rules and regulations, G.L. c. 183A, § 10( b )(5), such “offensive conduct” neither is defined nor does any restriction in § 9(f) of the master deed appear which even remotely suggests that bird feeding is restricted conduct.
Section 9(f) of the master deed contains the only restriction on use specifying offensive conduct: “No noises, sounds or music of excessive volume or offensive character and no boisterous or otherwise offensive conduct, all as determined by the Board of Trustees in its sole and unrestricted discretion, shall be permitted on the Condominium Premises.” This section is identical to paragraph 4 of a separate document entitled “Rules and Regulations.”
b. All communications to Cotto were made by the trustees' property manager. Section 3.2 of the declaration of trust specifies that “in the exercise of the powers hereby conferred, the Trustees may act by a majority vote at any duly called meeting at which a quorum is present.... The Trustees may also act without a meeting by unanimous written consent.” The rules and regulations document provides that “other rules and regulations may be adopted by the Trustees, provided, however, [that] a Unit Owner shall not be bound ... until [the] Unit Owner has notice of such change.”
There is no record of any action by the board of trustees authorizing the property manager to impose the fines or any action to ratify the actions of the property manager. Cotto demonstrates that there is a genuine issue of material fact as to the validity of the fines.
The trustees received payment of $5,064 on October 29, 2007, from Cotto's mortgage lender, which was credited to reduce the amount of accumulated legal fees, late fees, and fines. Neither party raises any issue on this payment in this appeal.
In any event, the trustees did not maintain a schedule of fines as required by § 5.1(r) of the declaration of trust, which states, in relevant part: “The Trustees shall maintain a schedule of fines and shall make such schedule available to all Unit Owners upon request.”
c. Cotto asserts that his bird feeding on the adjacent Warren Street sidewalk was off the condominium premises and because all the condominium documents describe the powers of the board of trustees and the rights of the unit owners in relation to the condominium property, he maintains that his conduct in such a public area could not be restricted by the trustees. Because Cotto had moved his bird feeding to the Warren Street sidewalk in response to the property manager's request in April, the fines imposed as of June 1, 2007, constitute an issue of material fact in dispute as to whether Cotto could be fined for conduct occurring off the condominium property. Accordingly, the judge erroneously determined that it was “immaterial whether Cotto spread birdseed on the common areas or the adjacent sidewalk.”
Cotto cites the deposition of Jeff Birenbaum, the property manager who originally asked him to stop placing bird seed on condominium property, who testified that because the “association does not own the sidewalk, ... that's something that the association can't enforce.”
Cotto notes in his statement of material facts, that a paragraph in a “handbook” dated March, 2008, purports to regulate public areas surrounding the condominium by prohibiting defacing, dismantling, or causing “harm that will ultimately affect the property,” and that such a violation may result in fines. Even if the provisions of the handbook can be read to apply to Cotto, they cannot be applied retroactively.
d. Underlying the property manager's order to Cotto to stop feeding the pigeons is the manager's assertion that “the birdseed is attracting rodents to the property,” and the warning to Cotto that if he continued, he would be “responsible for the additional costs associated with the pest control problem, which include, but are not limited to: exterminating services, cleaning services, and legal services.” The judge stated that “[t]he record strongly supports an inference that Cotto's bird-feeding led to an influx of rodents, pigeons and pigeon droppings.” Neither the property manager's assertion nor the judge's inference have the requisite record support for summary judgment. In depositions, unit owners varied in opinions whether problems with pigeons and rodents had been experienced before Cotto began his bird feeding, and there was no evidence that the trustees incurred additional expenses for pest control or repairs caused by Cotto's conduct. Cotto has demonstrated that issues of material fact remain concerning the alleged impact of his conduct on condominium property, and therefore summary judgment is inappropriate.
The judge erroneously made this inference against Cotto. In cross motions for summary judgment, materials “are to be reviewed in the light most favorable to the party against whom such a judgment is sought.” Imprimis Investors, LLC v. KPMG Peat Marwick LLP, 69 Mass.App.Ct. 218, 222 (2007).
The trustees cited § 16–12.8 of the Boston Municipal Code in their statement of material facts, but did not assert that Cotto violated the code.
3. Enforcement of fines. Relying on § 5.1(r) of the declaration of trust, Cotto asserts that he should not have been fined for 314 consecutive days because he did not feed the birds every day. There was no evidence of the specific number of times Cotto actually fed the pigeons. Estimates of unit owners in the several depositions varied from a few to over 200 instances (not consecutive days).
Section 5.1(r) states in relevant part: “Each day a violation continues after the Unit Owner has received written notice of such violation shall be treated as a separate violation.”
In any event, the judge erred in concluding that “the Board had authority to assess the fines as a common expense and for violations of the Master Deed.” Not only did Cotto not violate the master deed, but his alleged misconduct did not result in the type of expense to the trustees cognizable under G.L. c. 183A, § 6( a )(ii), that is, expenses of “maintaining, repairing or replacing a limited common area and facility.”
Conclusion. The order allowing the trustees' motion for summary judgment is reversed. The judgment dated February 25, 2011, ordering the sale of Cotto's condominium unit is reversed.