Q. A few years ago, the board decided that we needed additional parking on our six-building property. Without consulting the owners of the building most immediately affected, they had a contractor tear up the front lawn of that building and replace it with several parking spaces. Months prior, many of the residents, when they’d heard rumors of this proposal, protested in writing and even circulated a petition, but the board never responded to either. Some newer owners are now questioning whether this “change” to the property falls under the definition of an “improvement” that should have gone to the owners for a vote. Your thoughts, and what recourse is available to us now, if any?
— Longing for Lawn
A. “In Massachusetts, the Land Court case Bonderman touches upon what factors the Court may consider when determining whether certain work anticipated to be performed by an association to its common areas would be considered a restoration/repair or an improvement,” says attorney Pamela Jonah of the Dedham, Massachusetts firm of Goodman, Shapiro & Lombardi, LLC. “The difference between the two is important because Massachusetts General Law c. 183A, § 18 requires that seventy-five percent of all unit owners agree to an ‘improvement’ to common areas or facilities before the cost of that improvement may be assessed as a common expense. However, if more than fifty percent, but less than seventy-five percent of all unit owners agree to an improvement, those unit owners voting in favor must bear the cost of the improvement. Alternatively, if the work/project suggested is not an improvement, then the board may assess unit owners to fund the cost of ‘repairs/restoration,’ as a common expense without putting the matter to a vote before the unit owners.
“In Bonderman, the Court stated that the voting requirement that takes place when something is an improvement ‘is reserved for work which does more in the way of new, permanent addition to or expansion of, the common elements…’ The Court went on to say an improvement would be ‘any creation or expansion of habitable space, or any change in the structure and improvements of the condominium which would necessitate an amendment to the description of the units and the buildings constituting the condominium in the registered master deed and accompanying plans.’
“Although, it is not directly on point, as the Bonderman case was not about the creation of a parking lot. Using the factors expressed by the Court it would appear that while an argument could be made that changing a grassy area to a parking lot serves a similar purpose for unit owners to transverse across. A stronger argument for this being an improvement could be made, as cities and towns would require a permit from the building department to change the natural landscaped lawn to a parking lot. As such, it would appear that such action would be viewed more as an addition to the common area/improvement, rather than, say, landscaping.
“The recourse, while not guaranteed, would be to have the aggrieved unit owners demand the amount of the assessment(s) back from the association, assuming it was paid for. Further, demand could be made to remove the parking lot and restore it to its original condition. Finally, if not satisfied, a lawsuit or arbitration could be commenced depending on what the governing documents, Master Deed and/or Trust state.”