34 Mass. App. Ct. 452, 612 N.E.2d 266
The plaintiffs, as trustees managing the Weymouthport Condominium Trust, oversaw a 271-unit complex established in 1973 under G. L. c. 183A.1 The original trust by-laws incorporated rules and regulations containing a pet restriction.2 That restriction was amended in 1979 to place an absolute ban on animals in any unit or common element while adding an amortization clause protecting pets owned at the time of unit purchase or rental.3
John Murphy and Margaret Wilson purchased a unit in the condominium in 1983.4 After they acquired a dog later that year, the condominium manager notified them in September 1983 that the animal violated the pet restriction. They removed the dog and twice requested permission to keep it, first in November 1983 and again in January 1984 on the ground of Wilson's claimed permanent and total disability; both requests were denied.5
Murphy and Wilson moved out of the unit in April 1985, rented it for a period, and reoccupied it in November 1987.6 In May 1988 they were notified of a new violation after acquiring a second dog.7 They obtained temporary permission to house the dogs on weekends until October 1, 1988, after which the plaintiffs began assessing a $5 daily fine.8
The plaintiffs filed suit in Superior Court seeking permanent removal of the dogs together with payment of daily penalties, costs, and expenses.9 The defendants answered and counterclaimed, challenging the restriction and the assessments.10 The Superior Court granted the plaintiffs' motion for summary judgment and entered judgment ordering removal of the dogs and payment of assessments totaling $15,244.75. Murphy and Wilson appealed.11
During the appeal the defendants lost their interest in the unit through mortgage foreclosure, and Margaret Wilson and the dogs died in an accident, rendering the removal issue moot while leaving the validity of the restriction relevant to the penalty assessments.12
Whether the pet restriction in the condominium by-laws is valid?13
A condominium use restriction appearing in originating documents which predate the purchase of individual units is subject to a strong presumption of validity and will not be invalidated absent a showing that it is wholly arbitrary in its application, in violation of public policy, or that it abrogates some fundamental constitutional right.14 General Laws c. 183A, § 11(e) permits restrictions on the use of residential units which are designed to prevent unreasonable interference by individual unit owners with the other owners' use of their respective units and the common areas and facilities.15 Close judicial scrutiny of broadly drawn but fundamentally proper restrictions is not required because such review would deny developers and unit owners the planning flexibility inherent in the statute.16
Yes. The pet restriction originated in the 1973 rules and regulations attached to the master deed of the Weymouthport Condominium.17 It was incorporated into the by-laws by amendment in 1979, well before Murphy and Wilson purchased their unit in 1983.18 The trustees enacted the absolute ban after receiving complaints involving dogs and a boa constrictor, a subject well within their common knowledge and competence as a reasonable means of promoting the health, happiness, and peace of mind of unit owners.19 The restriction includes an amortization provision protecting pets owned at the time of purchase or rental and grants trustees discretion to permit a household pet, which addresses concerns of overbreadth while supporting efficient and even-handed enforcement.20
Ownership of a condominium unit is a hybrid interest that requires each owner to surrender a degree of freedom of choice in exchange for the benefits of association.21 The defendants do not contend that any fundamental public policy or constitutional provision guarantees the right to keep pets in a condominium.22 The restriction therefore satisfies the equitable reasonableness standard and the strong presumption of validity that attaches to provisions in originating documents.23
The pet restriction in the condominium by-laws is valid.24
Whether the defendants received sufficient notice and opportunity to comply before enforcement of the pet restriction?25
Yes. Murphy and Wilson were notified by the condominium manager in September 1983 that their newly acquired dog violated the pet restriction, after which they removed the dog and twice sought permission to return it, first in November 1983 and again in January 1984 on the ground of Wilson's claimed permanent and total disability.28 After moving out in April 1985, renting the unit, and reoccupying it in November 1987, they were notified of a new violation in May 1988 involving two dogs and received temporary permission to house the dogs on weekends until October 1, 1988.29 The plaintiffs began assessing the five-dollar daily fine only after the dogs remained past that date, and the trustees consistently applied a complaint-driven enforcement procedure without any evidence of waiver or discriminatory treatment.30
These repeated notifications and opportunities to comply satisfy the requirements for enforcement of the valid restriction.31
The defendants received sufficient notice and opportunity to comply before enforcement of the pet restriction.32
Whether the by-law provision authorizing recovery of costs and expenses of eliminating violations includes attorneys' fees?33
The by-law provision entitling the plaintiffs to recoup the cost and expense of eliminating by-law violations by an offending unit owner is part of a valid contract between the parties.34 Attorneys' fees generally constitute the most substantial component of the cost of enforcement.35 Therefore, they would appear to be within the context of the word expense and the objective intent of the bylaws to shift the financial burden of successful enforcement to the offender.
Yes. The expense provision forms part of the valid contractual relationship created by the condominium by-laws.36 Because attorneys' fees ordinarily represent the largest share of enforcement costs they fall within the meaning of expense under the objective intent to allocate the financial burden of successful enforcement to the violator.37 The Superior Court awarded assessments for penalties, costs, and attorney's fees totaling $15,244.75, and the defendants did not raise any objection to the inclusion of attorneys' fees at trial or preserve the issue for appeal.38
The fines themselves were assessed in accordance with the by-laws, and the judgment including the full amount of assessments is properly affirmed.39
The by-law provision authorizing recovery of costs and expenses of eliminating violations includes attorneys' fees.40