COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT
MIDDLESEX COUNTY 2014 SITTING
NO. 2014-P-0317
_____________________

LARISA YAKUSHINA, ET AL.,

APPELLANT,
v.

TRUSTEES OF FELLSWAY WEST CONDOMINIUM,

APPELLEE.
_____________________

ON APPEAL FROM AN ORDER

OF THE MIDDLESEX SUPERIOR COURT
______________________________________________________

BRIEF AND RECORD APPENDIX

FOR THE APPELLANTS
______________________________________________________

RESPECTFULLY SUBMITTED,

TRAVIS J. JACOBS
BBO No. 671921
tjacobs@thejacobslaw.com

STEFANO V. D’AGOSTINO, ESQ.

BBO No. 680893
sdagostino@thejacobslaw.com

THE JACOBS LAW, LLC

101 Tremont Street, Suite 712
Boston, MA 02108
P: 800.652.4783
F: 888.613.1919

Dated: April 16, 2014

 TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES iv

ISSUES PRESENTED 1

1. Whether a strictly punitive assessment by

a Condominium Trust against a single unit
owner for conduct which did not result in
nor arise from an expense to the
Condominium Trust is within the scope of
a common expense assessment as
articulated by G.L. c.183A, §§ 1 and
6(a).

2. Whether the application of the ‘timely

payment’ requirement articulated in Blood
v. Edgar’s to a strictly punitive
assessment is contrary to G.L. 183A, §§1
and 6(a), and public policy.

3. Whether Plaintiffs’ payment of a strictly

punitive assessment was timely where it
was paid after filing an Original
Complaint, but before filing an Amended
Complaint and before Defendants Filed a
Motion a Dismiss.

STATEMENT OF THE CASE 2

Prior Proceedings 2

Statement of the Facts 5

ARGUMENT 16

I. THE COURT ERRED IN DISMISSING PLAINTIFFS’

COMPLIANT BECAUSE A PUNITIVE ASSESSMENT IS
DISTINCT FROM A COMMON EXPENSE ASSESSMENT.

a. PUNITIVE ASSESSMENTS, WHICH DO NOT ARISE

FROM OR CAUSE AN EXPENSE TO BE INCURRED

ii
 BY THE CONDOMINIUM TRUST, ARE OUTSIDE THE
SCOPE OF A “COMMON EXPENSE ASSESSMENT” AS
DEFINED BY G.L. C. 183A, § 6.

i. A strictly punitive assessment is

not a common, recurring assessment
pursuant to G.L. C. 183A, §6(a)(i)

ii. The definition of a “Common Expense

Assessment” and enforcement as a
“Common Expense Assessment” Requires
an Expense to be Incurred the Trust

iii. Neither the Legislature nor the

Judiciary intended to include
strictly punitive assessments within
the scope of a “Common Expense
Assessment”.

II. THE COURT’S APPLICATION OF THE TIMELINESS

STANDARD IN BLOOD V. EDGAR’S WAS IMPROPER
BECAUSE (a) STRICTLY PUNITIVE ASSESSMENTS
ARE OUTSIDE THE SCOPE OF WHAT CONSTITUTES A
‘COMMON EXPENSE ASSESSMENT’ UNDER G.L.
c.183, §6(a)(i) AND WHAT IS ENFORCEABLE AS
A ‘COMMON EXPENSE ASSESSMENT’ UNDER G.L.
c.184A, §6(a)(ii), (b) IT IS CONTRARY TO
PUBLIC POLICY, AND (c) PLAINTIFF’S PAYMENT
WAS TIMELY.

a. The Blood Court’s Ruling Applied to

Common Expense Assessments.

b. Extending the ‘Timely Payment’ standard

articulated in Blood to Strictly Punitive
Assessments is Contrary to Public Policy.

c. Plaintiffs’ Payment of the Assessment was

Timely.

CONCLUSION 45

STATUTORY ADDENDUM (following text)

RECORD APPENDIX (following text)

iii
 TABLE OF AUTHORITIES
Cases
9 Pleasant Street Condominium Trust v. Luttrell,
72 Mass. App. Ct. 1106 (2008) 24, 33

Baker v. Monga
32 Mass. App. Ct. 450 (1992) 33

Barclay v. DeVeau
384 Mass. 676 (1981) 18

Blood v. Edgar’s, Inc.,

36 Mass. App. Ct. 402 (1994) 3, 17, 24, 31, 32, 34,
35, 40

Cal Motor Transp. Co. v. Trucking Unlimited,

404 U.S. 508 (1972) 37

Commonwealth v. Ray,
435 Mass. 249 (2001) 19

Curtis v. Herb Chambers I-95, Inc.,

75 Mass. App. Ct. 662 (2009) 14

Fahd v. Glass,
2007 WL 4555247 43

Foss v. Commonwealth,
437 Mass. 584 (2002) 18, 19

Hashimi v. Kalil,
388 Mass. 607 (1983) 19

Iannacchino v. Ford Motor Co.,

451 Mass. 623 (2008) 14, 15

International Org. of Masters v. Woods Hole, Martha’s

Vineyard & Nantucket S.S. Authy.,
392 Mass. 811 (1984) 18

Manning v. Nobile,
411 Mass. 382 (1991) 18

MRJE, LLC v. Hajjar,

2010 WL 4070719 24, 33, 41

iv
Nader v. Citron,
372 Mass. 96 (1977) 14

Okerman v. VA Software Corp.,

69 Mass.App.Ct. 771 (2007) 14

Rawan v. Massad,
80 Mass. App. Ct. 826 (2011) 15

Schinkel v. Maxi-Holding, Inc.,

30 Mass. App. Ct. 41 (1991) 15

Sterilite Corp. v. Continental Cas. Co.,

397 Mass. 837 (1982) 18

Telesetsky v. Wight,
395 Mass. 868 (1985) 18

Trustees of Hunters Village Condominium Trust v.

Gerke,
2007 Mass. App. Div. 23 (2007) 26, 33

Trustees of the Clarendon/Warren Condominium v. Cotto,

82 Mass. App. Ct. 1107 (2012) 21, 22, 23, 34, 35

Trustees of the Prince Condominium Trust v. Prosser,

412 Mass. 723 (1992) 33

Watros v. Greater Lynn Mental Health & Retardation

Assoc.,
37 Mass. App. Ct. 657 (1994) 15

Wilson v. Comm.,
31 Mass. App. Ct. 757 (1992) 43

Statutes
G.L., c. 183A, § 1 19, 25
G.L., c. 183A, § 6 34
G.L., c. 183A, § 6(a)(i) 19, 20
G.L., c. 183A, § 6(c) 20
G.L., c. 183A, §6(a)(ii) 21, 25, 26
G.L., c. 254, § 5A 20

v
 COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
MIDDLESEX COUNTY 2014 SITTING
NO. 2014-P-0317
_____________________

LARISA YAKUSHINA, ET AL.,

APPELLANT,
v.

TRUSTEES OF FELLSWAY WEST CONDOMINIUM,

APPELLEE.
_____________________

ON APPEAL FROM AN ORDER

OF THE MIDDLESEX SUPERIOR COURT
______________________________________________________

BRIEF AND RECORD APPENDIX

FOR THE APPELLANTS
______________________________________________________

ISSUES PRESENTED

1. Whether a strictly punitive assessment by a

Condominium Trust against a single unit owner for

conduct which did not result in nor arise from an

expense to the Condominium Trust is within the scope

of a common expense assessment as articulated by

G.L. c.183A, §§ 1 and 6(a).

2. Whether the application of the ‘timely payment’

requirement articulated in Blood v. Edgar’s to a

 strictly punitive assessment is contrary to G.L.

183A, §§1 and 6(a), and public policy.

3. Whether Plaintiffs’ payment of a strictly punitive

assessment was timely where it was paid after filing

an Original Complaint, but before filing an Amended

Complaint and before Defendants Filed a Motion a

Dismiss.

STATEMENT OF THE CASE

Prior Proceedings

On February 22, 2013, Plaintiffs-Appellants,

Larisa Yukushina (“Ms. Yukushina”), Yevgeniy Lysov

(“Mr. Lysov”), and Anna Moore (“Ms. Moore”)

(collectively, the “Plaintiffs”), acting pro se, filed

a complaint in Middlesex Superior Court against

Defendant-Appellees, Rita LaGreca, Paul Jackson,

Dolores DiLiegro, and Jaydeep Anand, as current and

former trustees of the Fellsway West Condominium Trust

(collectively the “Defendants,” or the “Trust”),

Docket No. MICV2013-00644. Record Appendix 2-4 (“R.A.

2-4”).

On March 14, 2013, Plaintiffs received notice of

the Defendants’ intent to file a Motion to Dismiss

Plaintiffs’ complaint based on the grounds set forth

2
in Blood v. Edgar’s, Inc., 36 Mass. App. Ct. 402

(1994). (R.A. 13). Upon reading the ruling in Blood,

which suggested that “a unit owner in a condominium

may not challenge a common expense assessment by

refusing to pay it” (Id. at 404), Plaintiffs paid the

assessment to the Condominium Trust with “paid under

protest’ in the memo line of the check. (R.A. 14, 193,

207; Transcript 13 “Tr. 13”).

Once paid, Plaintiffs believed they had cured the

defect that formed the basis for Defendants’ Motion to

Dismiss, and prior to Defendants’ filing of its motion

with the lower court, Plaintiffs filed an Amended

Complaint on March 28, 2013. (R.A. 4; Addendum 2 (“A.”

2). The Amended Complaint alleged that Defendants, as

trustees of the condominium trust, had unlawfully

assessed fines against Plaintiffs, and sought

declaratory relief and damages. (R.A. 14, 24).

Specifically, the Amended Complaint included a plea

for a declaration that Plaintiffs were illegally

assessed fines by the Defendants for an alleged

unscheduled move-out by Plaintiffs’ tenants occurring

on August 28 and 29, 2012, in violation of the

Condominium rules and regulations. (R.A. 24).

Plaintiffs asserted that their Tenants had not moved

3
out, were not the individuals seen in surveillance

photographs, and provided statements from their

Tenants that they had not moved out at the alleged

times. (R.A. 16-18, 20, 25-29, 33-41). The Amended

Complaint also sought reimbursement of the assessment

Plaintiffs paid in the amount of one thousand four

hundred fifty dollars ($1,450.00). (R.A. 24).

The following day on March 29, 2013, Defendants

filed a Motion to Dismiss Plaintiffs’ original

complaint asserting the failure to state a claim

(pursuant to Mass. R. Civ. P. 12(b)(6)). (R.A. 4, A.

2). At that time, the lower court was apparently not

aware that Plaintiffs had filed an Amended Complaint.

On April 16, 2013, the lower court granted Defendants’

Motion to Dismiss pursuant to Mass. R. Civ. P.

12(b)(6) without a hearing and without opposition from

Plaintiffs, but it did so without knowledge that

Plaintiffs had already filed an Amended Complaint. Id.

On May 7, 2013, Plaintiffs filed a Motion for

Reconsideration of the lower court’s decision to

dismiss Plaintiffs’ case. (R.A. 5). The lower court

held a hearing on Plaintiffs’ Motion for

Reconsideration on June 18, 2013. (R.A. 4-5). After

the hearing, the lower court allowed Plaintiffs’

4
motion and vacated its previous order dismissing the

Original Complaint. (R.A. 5; A. 2).

On July 3, 2013, Defendants filed a new Motion to

Dismiss, pursuant to Mass. R. Civ. P. 12(b)(6), with

Plaintiffs’ Opposition. (R.A. 5, 55-56). A hearing on

Defendants’ Motion to Dismiss was held October 28,

2013. (R.A. 4, Tr. 1). At the hearing, Ms. Moore,

appearing pro se, argued on behalf of the Plaintiffs,

while Defendants were represented by counsel. (Tr. 1).

The transcript thereof accompanies this brief.

On November 5, 2013, the lower court granted the

Defendants’ Motion to Dismiss Plaintiffs’ Amended

Complaint. (R.A. 5-6, A. 1). On December 4, 2013,

Plaintiffs filed a Motion for Reconsideration thereof.

(R.A. 7, 190). On December 9, 2013, the lower court

denied Plaintiffs’ motion for reconsideration, and

judgment entered for Defendants. (R.A. 7) On January

6, 2013, Plaintiffs filed a timely notice of appeal.

(R.A. 7). On March 7, 2014, this appeal was entered in

the Appeals Court docket. (R.A. 216).

Statement of the Facts

Plaintiffs, Ms. Yakushina, Mr. Lysov, and Ms.

Moore are co-owners of a three-bedroom condominium

unit, number 804, in the Fellsway West Condominium

5
(the “Unit” or “Unit 804”). (R.A. 14). The condominium

building (“Condominium”) is a fifty-five (55) unit

residential condominium located at 500 Salem Street,

Medford, Middlesex County, Massachusetts 02155. (R.A.

58, 98). The Condominium was created by Master Deed

dated October 28, 1988 and recorded with the Middlesex

South Registry of Deeds at Book 19443, Page 377. (R.A.

72). Fellsway West Condominium Trust is the

organization of unit owners of Fellsway West

Condominium (“Condominium Trust” or “Trust”). At all

times material hereto, the Trustees were Rita LaGreca,

Paul Jackson, Dolores DiLiegro, and Jaydeep Anand (the

“Trustees”). (R.A. 8).

Prior to the dispute which forms the basis of the

present action, Plaintiffs rented the Unit to Caitlin

Jackson (“Ms. Jackson”), Jacqueline Herling (“Ms.

Herling”) and Michael Parent (“Mr. Parent”)

(collectively the “Tenants”). (R.A. 14). The Tenants’

lease for Unit 804 began on September 1, 2011 and

ended September 1, 2012. Id.

Article V of the Declaration of Trust (“By-Laws”)

permits the Trust to enact, amend, and/or rescind

administrative rules and regulations governing the use

of the common elements of the Condominium by Unit

6
Owners. (R.A. 123). The rules and regulations

promulgated by the Trust (the “Rules”) were amended on

June 14, 2011 and recorded with the Middlesex South

Registry of Deeds at Book 57060, Page 528. (R.A. 145-

146). The Rules state that owners who leave doors open

or unattended will be assessed a fine of one hundred

fifty dollars ($150.00) for the first infraction and

three hundred dollars ($300.00) for “each future

infraction”. (R.A. 152-153).

The rules also include a “Moving Procedures”

section, detailing how unit owners are to move in and

out of the building. (R.A. 157-159). These procedures

require, in part, that moves be scheduled at least

five (5) days in advance, move be performed by a

“professional moving company”, no moves are to take

place on weekends or holidays, that a moving fee

deposit is required, only one move may occur per day,

and that moves must be monitored.1 Id. The Moving

Procedures section also limits “partial move-outs”.

(R.A. 158). The Moving Procedures define a partial

move as:

1
One could certainly argue that these are some of the
most restrictive and oppressive move-out / move-in
regulations ever created.
2
Such expenses incurred by the trust, must relate to
“expenses of administration, maintenance, repair or
7
 when a unit is being rented [or] furnished

to a new tenant; if medium to large size

piece of furniture will be moved into or out

of a unit but not all pieces of furniture

within the given unit; if a large number of

items will be carried out or into a unit by

a single person including furniture; or if

one of a set of roommates would be moving

out or into the unit who would be moving

furniture. Id.

Further, “[t]he Board, in its sole discretion” is

the final arbiter on whether or not conduct is deemed

to be a “partial move.” Id. Failure to abide by the

“partial move rule will result in a fine of $500 being

charged to the offending unit owner.” Id.

On August 30, 2012 Plaintiffs received an email

from Jill Wetmore, Senior Property Manager at Premier

Property Solutions, who was hired by the Trust to

manage the Condominium. (R.A. 15, 30). The email

alleged that Plaintiffs’ Tenants were seen on August

28 and 29, 2012, moving items out of the Unit at

unscheduled times and propped open the front door of

the building while leaving it unattended in violation

of the Condominium By-Laws. Id. For these violations,

8
Plaintiffs were assessed a fine of One Thousand Four

Hundred and Fifty Dollars ($1,450.00). (R.A. 31). The

Trustees set the deadlines for payment of the fine as

September 13, 2012; only thirteen (13) days after

notice of the violations had been given. Id.

After the email on August 30, 2012, the

Plaintiffs inspected the unit and saw that no

furniture or other items had been removed. (R.A. 15-

16). Plaintiffs also spoke with the Tenants who denied

moving out as alleged by the Trust. (R.A. 15-16). As a

result, Plaintiffs believed the fines were made in

error. Id. Defendants later sent Plaintiffs

photographs, captured by Condominium security cameras,

of the individuals who had been seen moving out. (R.A.

16, 33-35). The individuals photographed, however,

were not the Tenants or any persons the Tenants knew,

nor did the belongings being transported belong to

either Tenant who was living in the Unit at that time.

(R.A. 17, 25). Plaintiffs informed the Trustees,

through communications with Jill Wetmore, of these

facts and asserted that the fines were made in error.

(R.A. 16, 36).

After several attempts to bring these concerns

before the Trust, Plaintiffs finally received an

9
opportunity to be heard in front of all Trustees in a

meeting held on October 9, 2012. (R.A. 18, 52). It was

at this meeting that Plaintiffs were first informed

that two Trustees, allegedly witnessed and claimed to

have “spoke[en] to two women who were moving items

through the lobby and foyer of the building…” (R.A.

19).

Despite presenting compelling and credible

evidence that it was not their Tenants who were

responsible for the violations, the Trust notified

Plaintiffs on October 22, 2012 that the fines would

remain in force. (R.A. 45). On November 16, 2012,

Plaintiffs sent another e-mail to Jill Wetmore,

inquiring into any other steps that could be taken to

further dispute what the Plaintiffs believed to be

clearly illegal fines. (R.A. 46). In response, on

November 19, 2012, the Plaintiffs were told that there

were no other options to further address the Trust

regarding the dispute. (R.A. 19). At no time did the

Trust or property manager set a new deadline for

payment of the assessment following the Plaintiffs’

opportunity to be heard before the Trustees on October

9, 2012. Furthermore, Plaintiffs were never notified

10
that payment of an assessment was required before

disputing it.

After exhausting all available remedies through

the Condominium Trust, Plaintiffs, acting pro se,

filed a complaint in the Middlesex Superior Court

against the Trust, seeking declaratory judgment and an

injunction lifting the Trust’s purported lien against

the Unit for unpaid common expense assessments. (R.A.

8).

Thereafter, Plaintiffs received notice of

Defendants’ intent to file a motion to dismiss based

on Blood v. Edgars, an Appeals Court decision which

states that a unit owner cannot challenge a common

expense assessment by refusing to pay. (R.A. 13-14);

36 Mass. App. Ct. at 403. Upon learning of Defendants’

intent, Plaintiffs paid the fines under protest and

filed an Amended Complaint. (R.A. 14). The Amended

Complaint was filed and docketed before Defendants

filed their Unopposed Motion to Dismiss. (R.A. 4).

However, the Court dismissed Plaintiffs’ case.

As discussed in the Statement of the Case section

above, after some initial confusion by the Court, the

lower court vacated its order dismissing Plaintiffs’

Complaint. Thereafter, Defendants filed a new Motion

11
To Dismiss Plaintiffs’ Amended Complaint. (A. 2). The

hearing on that motion occurred on October 28, 2012.

(R.A. 5; Tr. 1; A. 1).

In its order granting Defendants’ motion to

dismiss, the lower court stated that “[t]he

Plaintiffs’ Amended Complaint reflecting that the

outstanding assessment was eventually paid does not

cure the underlying fact that the assessment was not

timely paid under protest.” (A. 3).

SUMMARY OF THE ARGUMENTS

The assessment made against the Plaintiffs was a

strictly punitive assessment for a unit owner’s

alleged conduct which did not result in nor arise from

an expense incurred by the Trust. A strictly punitive

assessment is, therefore, outside the scope of a

‘common expense’ as defined by G.L. c.183A, §1 and as

articulated in G.L. c.183A, §6(a)(i). Furthermore, it

is outside the scope of assessments which may be

‘enforceable as common expense assessments’ pursuant

to G.L. c.183A, §6(a)(ii).

Several significant distinctions exist between

strictly punitive assessments and “common expense

assessments,” as defined by G.L. c. 183A, §§ 1,

6(a)(i)and (ii), which militate against barring an

12
aggrieved unit owner from challenging a punitive

assessment in court for the owner’s failure to timely

remit payment. Unlike common expense assessments, a

strictly punitive assessment, such as the ones levied

against Plaintiffs (a) do not result in or arise from

an expense incurred by the Trust, (b) are not common

nor recurring, (c) are unrelated to the administration

or maintenance of the Trust and (d) a Trust is not

dependent on their payment for continued operation and

financial stability. The Legislative intent

articulated in Blood and others, strongly suggests the

Legislature did not intend to treat strictly punitive

assessments in the same manner as common expense

assessments.

The lower court’s reliance on Blood v. Edgar’s,

Inc., is misplaced here because Blood, and the cases

that have followed it, have dealt only with common

expense assessments as distinct from strictly punitive

assessments that do not result in an expense incurred

by the Condominium Trust. Applying the same

requirements and standards to strictly punitive

assessments places an extreme burden on unit owners,

especially financially disadvantaged owners, where

delayed payment, or payment pending judicial

13
determination, puts little or no burden on the

Condominium Trust, and is contrary to public policy,

legislative intent and the plain language of the

statutes.

However, even if strictly punitive assessments

receive the same treatment as common expense

assessments, the Plaintiffs’ payment of the assessment

under protest and prior to filing of Plaintiffs’

Amended Complaint was timely.

STANDARD OF REVIEW

Defendants filed their motion to dismiss pursuant

to Mass. R. Civ. P. 12(b)(6), claiming Plaintiffs’

complaint failed to state a claim upon which relief

could be granted.

This Court reviews a lower court’s decision on a

motion to dismiss pursuant to rule 12(b)(6) de novo.

Curtis v. Herb Chambers I-95, Inc., 75 Mass. App. Ct.

662, 666 (2009); citing Okerman v. VA Software Corp.,

69 Mass.App.Ct. 771, 774 (2007). That is, this Court

applies the same standard for reviewing the

sufficiency of a complaint as applied by the Superior

Court. Curtis, 75 Mass. App. Ct. at 666.

When reviewing the sufficiency of a complaint,

“the allegations of the complaint, as well as such

14
inferences that may be drawn therefrom in the

plaintiff’s favor, are to be taken as true.”

Iannacchino v. Ford Motor Co., 451 Mass. 623, 625, n.7

(2008); quoting Nader v. Citron, 372 Mass. 96, 98

(1977). Presuming all facts pleaded in the complaint

are true, a plaintiff’s allegations must be enough to

raise a right to relief above the speculative level.

Iannacchino at 636. Furthermore, a rule 12(b)(6)

motion to dismiss “does not necessarily lie where the

complaint merely fails to plead an element of a cause

of action.” Schinkel v. Maxi-Holding, Inc., 30 Mass.

App. Ct. 41, 51 (1991).

When a party presents matters outside of the

pleadings to the court in a rule 12(b)(6) motion to

dismiss, and these matters are not excluded or are

accepted by the judge, typically the matter should be

handled as a motion for summary judgment. Watros v.

Greater Lynn Mental Health & Retardation Assoc., 37

Mass. App. Ct. 657, 662 (1994); Rawan v. Massad, 80

Mass. App. Ct. 826, 828 (2011)(“By submitting

[affidavits and exhibits] outside the pleadings

together with [defendants’] motions, [defendants]

invited the judge to treat their motion to dismiss as

one for summary judgment”).

15
 ARGUMENT

I. THE COURT ERRED IN DISMISSING PLAINTIFFS’

COMPLIANT BECAUSE A PUNITIVE ASSESSMENT IS
DISTINCT FROM A COMMON EXPENSE ASSESSMENT.

The key issue before the court in the present

appeal is one of first impression: whether the failure

to adhere to the ‘timely payment’ requirement as

stated in Blood v. Edgar’s, 36 Mass. App. Ct. 402

(1994) bars a unit owner from challenging a punitive

assessment where the misconduct did not result in an

expense incurred by the condominium trust.

In dismissing the Plaintiffs’ complaint, the

lower court stated that the Plaintiffs’ payment of the

assessment under protest (after filing an original

complaint, but prior to filing an amended complaint

and Defendants’ Motion to Dismiss) did “not cure the

underlying fact that the assessment was not timely

paid under protest.” (A. 3). Accordingly, the lower

court stated, “this case is DISMISSED because the

Plaintiffs did not pay the condominium assessment when

due”. (A. 3) In making its ruling, the lower court

relied on Blood v. Edgar’s, Inc., 36 Mass. App. Ct.

402 (1994).

The lower court’s determination, however,

incorrectly assumes that the assessment levied against

16
Plaintiffs was, in fact, a “common expense assessment”

as defined by the Condominium Act, G.L. c. 183A, §§ 1,

6(a)(i)-(ii), and ignores the Legislature’s intent in

enacting the Condominium Act.

By applying the Blood ‘timeliness’ rule to the

facts here, the lower court has effectively

established a rule whereby a unit owner would be

required to pay a strictly punitive assessment, where

no cost or expense was incurred by the Trust, prior to

a deadline (no matter how arbitrary) imposed by the

Trust. In doing so, the lower court has stripped

Plaintiffs, and other unit owners in similar

circumstances, of their right to seek judicial

determination on the legality of a strictly punitive

assessment.

If affirmed, the implications of this decision

will severely limit all aggrieved unit owners’ ability

to challenge illegal or improper punitive assessments

that do not even result from an expense incurred by

the condominium trust. It will also promote misconduct

by trustees, while discriminating against financially

disadvantaged unit owners who may be unable to pay

strictly punitive assessments in short arbitrary

deadlines set by unsympathetic trustees.

17
 a. PUNITIVE ASSESSMENTS, WHICH DO NOT
ARISE FROM OR CAUSE AN EXPENSE TO BE
INCURRED BY THE CONDOMINIUM TRUST, ARE
OUTSIDE THE SCOPE OF A “COMMON EXPENSE
ASSESSMENT” AS DEFINED BY G.L. C. 183A,
§ 6.

Condominiums are “creatures of statute.” Blood v.

Edgar’s, Inc., 36 Mass. App. Ct. 402, 404 (1994). The

“condominium as a form of real estate ownership did

not flourish until statutory authorization ...

Statutes like [G.L.] c. 183A which imprint the

condominium with legislative authorization are

essentially enabling statutes.” Barclay v. DeVeau, 384

Mass. 676, 682 (1981). Therefore, when asked to

interpret the condominium enabling act, the court’s

“primary duty is ‘to interpret [the] law so as to

effectuate the intent of the Legislature in enacting

it.’” Sterilite Corp. v. Continental Cas. Co., 397

Mass. 837, 839 n.3 (1982), quoting International Org.

of Masters v. Woods Hole, Martha’s Vineyard &

Nantucket S.S. Authy., 392 Mass. 811, 813 (1984). “In

determining the scope of the statute, [the courts]

look not only at the Legislature’s words, but also at

‘the cause of [the statute’s] enactment, the mischief

or imperfection to be remedied and the main object to

be accomplished.’” Manning v. Nobile, 411 Mass. 382,

18
387 (1991), quoting Telesetsky v. Wight, 395 Mass.

868, 872 (1985).

When interpreting a clear and unambiguous

statute, the courts will “construe the language in

accordance with its plain and ordinary meaning.” Foss

v. Commonwealth, 437 Mass. 584, 586 (2002), citing

Commonwealth v. Ray, 435 Mass. 249, 252

(2001)(additional citations omitted). “When the words

are clear and, when assigned their ordinary meaning,

yield a workable and logical result, [the courts]

interpret the statute without resort to extrinsic

aids.” Foss at 586, citing Hashimi v. Kalil, 388 Mass.

607, 610 (1983).

i. A strictly punitive assessment is not a

common, recurring assessment pursuant
to G.L. C. 183A, §6(a)(i)

To be a “common expense” the charge or payment

must involve either “the expenses of administration,

maintenance, repair or replacement of the common areas

and facilities” or “expenses declared common expenses

by [the Condominium Act].” G.L., c. 183A, § 1. The

Condominium Act further states that “all common

expenses shall be assessed against all units either in

accordance with their respective percentages of

undivided interest in the common areas and facilities,

19
or if stated in the master deed or an amendment

thereto duly recorded in the approximate relation that

the area of the unit bears to the aggregate area of

all units.” G.L., c. 183A, § 6(a)(i). The Legislature

further requires that “common expense assessments must

be made at least annually, based on a budget adopted

at least annually in accordance with the master deed,

trust, or by-laws.” Id. General Laws c. 183A, §6

further provides that the organization of unit owners

may assert a lien on a unit for unpaid common expense

assessments. (emphasis added). See G.L., c. 183A, §

6(c); G.L., c. 254, § 5A.

In the present case, the fines levied against the

Plaintiffs were not based on the Plaintiffs’

respective percentage interest in the Condominium

Building nor the Unit’s aggregate area in relation to

all other units. The assessment was not a common

expense borne by all unit owners, and was not a

regularly recurring assessment based on the Trust’s

anticipated yearly budget. The assessment was strictly

punitive in nature. Its sole purpose was to punish

Plaintiffs for an alleged (and refuted) unscheduled

move-out by Plaintiffs’ tenants and propping a door

20
open, and to deter other unit owners from similar

conduct.

ii. The definition of a “Common Expense

Assessment” and enforcement as a
“Common Expense Assessment” Requires an
Expense to be Incurred the Trust

General Laws c.183A, §6(a)(ii) clearly states

that:

If any expense is incurred by the

organization of unit owners as a result
of the unit owner’s failure to abide by
the requirements of this chapter or the
requirements of the master deed, trust,
by-laws, restrictions, rules or
regulations, or by the misconduct of
any unit owner, or his family members,
tenants, or invitees, the organization
of unit owners may assess that expense
exclusively against the unit owner and
such assessment shall constitute a lien
against that unit from the time the
assessment is due, and such assessment
shall be enforceable as a common
expense assessment ...

G.L., c. 183A, §6(a)(ii) (emphasis added).

In Section 6(a)(ii), the Legislature has clearly

carved out an additional category of assessments which

condominium trusts are expressly permitted to impose

on condominium owners and which may be enforceable in

the same manner as a Common Expense Assessment. Id.

This additional category, however, expressly requires

and is conditioned on an expense being incurred by the

Condominium Trust as a result of the alleged conduct.

21
 In Trustees of the Clarendon/Warren Condominium

v. Cotto, a unit owner was assessed fines, late fees,

and attorney’s fees for spreading bird seed to feed

pigeons on and around the condominium building, after

being asked repeatedly to refrain from doing so.

Trustees of the Clarendon/Warren Condominium v. Cotto,

82 Mass. App. Ct. 1107 (2012)(unpublished decision).

The Appeals Court held that the trial court judge

erred in concluding that “the Board [of Trustees] had

authority to assess the fines as a common expense and

for violations of the Master Deed,” because there was

no evidence that the trustees incurred additional

expenses for pest control or repairs caused by the

unit owner’s conduct. Id. at 3 (emphasis added).

In Cotto, a property manager had asserted the

bird seed was attracting rodents, but provided no

evidence of same. Id. at 2. The lower court

nonetheless found a reasonable inference that the unit

owner’s actions in spreading bird seed around the

perimeter of the building could lead to “an influx of

rodents, pigeons, and droppings.” Id. However, on

appeal this Court stated that the inference did not

“have the requisite record support for summary

judgment.” Id. at 2. This Court further concluded,

22
 [T]he 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 re-placing a limited
common area and facility.’

Id. at 3 (emphasis added).

Here, although the procedural circumstances are

different, the Cotto court’s reasoning is clearly

applicable and serves as precedent. In the present

case, like Cotto, there was no evidence of any cost or

expense incurred by the Condominium Trust, nor did the

Trustees or the lower court find even a reasonable

inference that any financial impact had been or could

be experienced by the Trust or any unit owners. To be

certain, no cost or expense was incurred by the

Condominium Trust nor was it alleged that an expense

could be incurred. As a result, and similar to Cotto,

the wholly punitive assessment levied against the

Plaintiffs cannot be within the scope of a “Common

Expense Assessment” identified by G.L. c.183A, §§1,

6(a)(i) or 6(a)(ii), and cannot not, therefore, be

enforceable as a “Common Expense Assessment.”

23
 iii. Neither the Legislature nor the
Judiciary intended to include strictly
punitive assessments within the scope
of a “Common Expense Assessment”.

The plain language of the Condominium Act,

notwithstanding an examination of the legislative

purpose for enacting the Act, provides a strong

rationale for differentiating ‘strictly punitive

assessment’ from ‘common expense assessments.’

In Blood, the Appeals Court stated that “[i]n

interpreting the condominium enabling act we

acknowledge the legislative concern for prompt

collection of common expense assessments.” 36 Mass.

App. Ct. at 405, (internal citations omitted). Failure

by a large unit owner ... to pay its common expense

assessment would have a serious financial impact on

the stability of a condominium association.” Id.

Recognition of the legislative concern for the

financial stability of condominium trusts was the

basis for Blood’s requirement that unit owners “timely

pay” assessments prior to challenging it in court, and

all cases that have followed it. Id. See also, MRJE,

LLC v. Hajjar, 2010 WL 4070719 at 1 (“prohibition of

self-help remedies ... predicated upon the core public

policy concern that condominium associations require

24
prompt collection of such revenue to ensure financial

solvency and ability to provide uninterrupted, quality

services to unit occupants”); 9 Pleasant Street

Condominium Trust v. Luttrell, 72 Mass. App. Ct. 1106,

1106 (2008) (“the court in Blood emphasized the

condominium enabling act’s concern with the prompt

collection of condominium common expenses”).

This reasoning also formed the basis for the

lower court’s decision to dismiss the Plaintiffs’

case. (See A. 2-3)(unit owner required to pay his

share of common expenses, “due to the importance the

Legislature placed in enacting G.L. c. 183A and its

amendments on timely collection of assessed common

expenses”).

This concern for the financial stability and

solvency of condominium trusts, applicable to the

collection and enforcement of common expense

assessments, simply does not apply to punitive

assessments.

First, common expenses are defined by G.L. c.

183A, §1 as “the expenses of administration,

maintenance, repair or replacement of the common areas

and facilities, and expenses declared common expenses

by [G.L. c. 183A]”. (emphasis added). Meanwhile, G.L.,

25
c. 183A, § 6(a)(ii) states that expenses incurred by

the trust as a result of unit owner misconduct may

result in an assessment levied against the unit owner.

It is not, however, manifest that the Legislature has

“declared” that misconduct assessments “shall be” a

common expense assessment. See Trustees of Hunters

Village Condominium Trust v. Gerke, 2007 Mass. App.

Div. 23, 24 (2007) (“it is not apparent that the

Legislature has ‘declared’ misconduct to be a common

expense”). To be certain, the Legislature specifically

limited the enforcement of certain assessments as

‘common expense assessments’ pursuant to G.L. c.183A,

§6(a)(ii) to only those resulted in an expense to the

Condominium Trust. See G.L., c.183A, §6(a)(ii).

Second, the statutorily mandated requirement that

common expense assessments recur at least annually and

be based on a budget, supports the legislative purpose

to ensure financial stability of the condominium

trust. This requirement forces a condominium trust to

plan its expenses and forecast the funds it will need

to operate on an annual basis. These recurring and

budgeted common expense assessments are disclosed to

prospective condominium purchasers and at least

annually to existing owners to provide them advance

26
notice and an opportunity to plan their own finances.

A high monthly condominium fee may deter prospective

purchasers who cannot afford it, but unit owners know

what to expect—thereby increasing the likelihood of

prompt payment. Advance notice also enables unit

owners to discern what their payments are being used

for, which promotes transparency and confidence in the

trust. A unit owner who believes her fees are being

used responsibly for the benefit of the condominium is

more likely to make such payments promptly and without

dispute.

Conversely, punitive assessments are

unpredictable, unintended, unplanned and have

absolutely no reasonable relationship to the financial

stability of a condominium trust. In fact, if a

condominium trust relied on the collection of punitive

assessments to remain solvent, the condominium trust

is likely being mismanaged. A unit owner generally

does not intentionally subject themselves to a

punitive assessment, and for this reason cannot plan

or budget for it. An unexpected and unintended

punitive assessment with a short due date for payment

could result in financial catastrophe for a

financially strapped family.

27
 Common expense assessments, unlike punitive

assessments, are relied upon by the trust in order to

conduct regular and planned maintenance, repair, or

replacement of common areas and facilities that are

used by all unit owners. For this reason, prompt

payment of common expense assessments is necessary to

ensure the financial stability of a condominium trust

and therefore serves as reasonable justification for

the legislature and courts to require payment of a

common expense assessment prior to initiating a

judicial challenge to it. There simply does not exist

the same justification for punitive assessments.

Furthermore, common expense assessments are based

on forecasted budgets that identify the amount each

unit owner is responsible for based on its percentage

of common interest. Punitive assessments are not tied

to any objective measurable value or amount. In fact,

the amounts of punitive assessments do not appear to

have any objective metric.

In the present case, for example, the Plaintiffs

were assessed one hundred and fifty dollars ($150.00)

for allegedly leaving a door ajar on the first day and

three hundred dollars ($300.00) for the second day.

These numbers are entirely arbitrary and unrelated to

28
any objective standard. The arbitrary nature of

punitive assessments, and the fact that they are

surplus collections diminishes their importance and

necessity to a condominium trust. In addition, for

these same reasons, punitive assessments are subject

to reduction at the discretion of the trustees. This

discretion invites favoritism and discrimination

whereby a trustee may permit a reduction for one unit

owner, but not another – as has been the practice of

the condominium trust in the present case.

Here, there is evidence that the Trustees have

routinely reduced punitive assessments against other

unit owners after such assessments were challenged. In

one particular case, a unit owner’s accrued punitive

assessments totaled $10,675.10 and were reduced by

fifty percent (50%). In another case, a unit owner

disputed a five hundred dollar ($500.00) punitive

assessment based on an alleged move-out violation and

the Trustees reduced the fine to fifty dollars

($50.00). The absence of necessity and importance of

such punitive assessments to the stable operation of a

Condominium Trust invites this sort of favoritism and

discriminatory treatment because punitive assessments

(which do not result in an expense to the Condominium

29
Trust) can be reduced or eliminated with very little,

if any, impact on the Condominium Trust, its

operations or its financial stability.

Conversely, common expense assessments do not

invite discriminatory reductions because the

Condominium Trust depends on their payment in full on

regularly recurring intervals to meet its own

obligations and for its continued operations.

Similarly, a punitive assessment which IS based on an

expense incurred by the condominium trust would be

reasonably related to the expense incurred. The actual

expense incurred would serve as an objective standard

against which the reasonableness of the punitive

assessment could be measured. Where the amount of a

punitive assessment is based on the cost incurred by

the condominium trust, it also does not invite

favoritism or discriminatory reductions. In the event

of a punitive assessment arising from an expense

incurred by the Condominium Trust, its continued

operations would depend upon payment of the assessment

to pay the financial obligation it has incurred as a

result of the offending unit owner’s conduct. This

further illustrates the inherent distinction between

strictly punitive assessments that are not as a result

30
of an expense incurred by the Condominium Trust and

those punitive assessments that do — the latter fall

squarely within the scope of enforcement as a ‘common

expense assessment’ pursuant to G.L. c.183A,

§6(a)(ii), while former fall squarely outside it.

Given the inherent distinctions in the (a)

statutory definition, (b) judicial application, (c)

Trustee enforcement, and (d) impact of non-payment on

the Condominium Trust, between common expense and

punitive assessments that are not levied as a result

of an expense incurred by the Condominium Trust, the

Legislature did not intend to treat these strictly

punitive assessments the same as a common expense

assessment.

II. THE COURT’S APPLICATION OF THE TIMELINESS

STANDARD IN BLOOD V. EDGAR’S WAS IMPROPER BECAUSE
(a) STRICTLY PUNITIVE ASSESSMENTS ARE OUTSIDE THE
SCOPE OF WHAT CONSTITUTES A ‘COMMON EXPENSE
ASSESSMENT’ UNDER G.L. c.183, §6(a)(i) AND WHAT
IS ENFORCEABLE AS A ‘COMMON EXPENSE ASSESSMENT’
UNDER G.L. c.184A, §6(a)(ii) and (b) IT IS
CONTRARY TO PUBLIC POLICY.

a. The Blood Court’s Ruling Applied to Common

Expense Assessments.

The lower court’s order relied on Blood’s ruling

that a unit owner “may not challenge a common expense

assessment by refusing to pay it.” (A. 2); 36 Mass.

App. Ct. at 404. The court’s order further quoted from

31
Blood, stating that “absent a prior judicial

determination of illegality, a unit owner must pay its

share of the assessed common expense.” (emphasis

added) (A. 2); 36 Mass. App. Ct. at 405.

First, even with respect to common expense

assessments, it appears that even the Blood court

contemplated the possibility that a judicial

determination could be obtained before (or without)

payment of the assessment. Second, the lower court

failed to consider that the fines levied against the

Plaintiffs were not ‘common expense assessments’ at

all, but were strictly punitive assessments that did

not result from or arise in an expense to the

Condominium Trust.

In Blood, and subsequent cases which rely on

Blood, the assessments were clearly within the

definition and scope of ‘common expense assessments’

found in G.L. c.183A, §§§ 1, 6(a)(i), and 6(a)(ii),

where a dispute arose based either on a recurring

common fee that was based on the unit owner’s

proportional share of the property, or an assessment

that was the result of or arose in an expense2 incurred

2
Such expenses incurred by the trust, must relate to
“expenses of administration, maintenance, repair or

32
by the Condominium Trust due to the unit owner’s

conduct. See e.g. Blood, 36 Mass. App. Ct. at 403

(dispute based on unit owner’s refusal to pay its

share of the total common expense assessment, totaling

approximately 10.5% as stated in the condominium

master deed); Baker v. Monga, 32 Mass. App. Ct. 450,

451 (1992) (unit owner assessed common expenses of

$294 per month but did not make payments to trustees);

Trustees of the Prince Condominium Trust v. Prosser,

412 Mass. 723 (1992)(holding no right to set-off

against a lawfully imposed condominium charge); 9

Pleasant Street Condominium Trust v. Luttrell, 72

Mass. App. Ct. 1106 (2008)(unpublished

decision)(appeal of a judgment for unpaid monthly

common expenses and fees and fines resulting from that

nonpayment); MRJE, LLC v. Hajjar, 2010 WL 4070719

(Mass. Super. July 15, 2010)(unit owner barred from

challenging assessment resulting from septic system

repairs because payment untimely); Trustees of Hunters

Village Condominium Trust v. Gerke, 2007 Mass. App.

Div. 23 (2007)(assessment for conversion of funds by

replacement of the common areas and facilities” of the

condominium. G.L. c. 183A, §1.

33
former property manager-tenant, not a common expense

assessment as defined by Condominium Act).

None of these cases dealt with a strictly

punitive assessment, such as the one in the present

case, where no expense was incurred by the condominium

trust. In Cotto, where this Court dealt with similar

circumstances involving a strictly punitive assessment

but in a different procedural posture, the Court

stated definitely,

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.’

Cotto, 82 Mass. App. Ct. 1107, 3 (2012)

(unpublished decision).

The Legislature was keenly aware of and concerned

with the financial stability of Condominium Trusts

when enacting the Condominium Act. This concern was

manifest by the Legislature’s grant of authority to

Condominium Trusts to levy common expense assessments,

lien units in the event of non-payment, and enforce

certain other types of assessments, that involved an

34
expense to the Trust, as a common expense assessment.

See G.L., c. 183A, § 6; See also Blood, 36 Mass. App.

Ct. at 405 (“we acknowledge the legislative concern

for prompt collection of common expense assessments”).

It was the recognition of this concern on which the

Blood court relied in ruling “absent a prior judicial

determination of illegality, a unit owner must pay its

share of the assessed “common expenses”. Blood, 36

Mass. App. Ct. at 405.

The Blood court further suggested, in identifying

a remedy or recourse for aggrieved unit owners to

challenge the propriety of common expense assessments,

“that aggrieved unit owners should timely pay – under

protest – the common expense assessment.” Id. Here,

the lower court relied on this ‘timely payment’

suggestion when it dismissed the Plaintiffs’ case,

stating, “the assessment was not timely paid under

protest.”3 (A. 3).

The Blood court’s timeliness standard, and the

subsequent cases relying upon it, have not dealt with

strictly punitive assessments. Therefore, and given

that strictly punitive assessments are not common

3
The record does reflect however that Plaintiffs paid
the assessment with ‘paid under protest’ on the memo
line of the check. (See R.A. 207).

35
expense assessments, as demonstrated above, the lower

court’s reliance on the Blood court’s ‘timely payment’

standard is incorrect and does not comport with

legislative intent or the judicial precedent. See

Cotto, 82 Mass. App. Ct. 1107 (2012)(unpublished

decision).

The justification which may exist for imposing a

‘timely payment’ standard on common expense

assessments does not exist for strictly punitive

assessments which (a) do not create an expense to the

Condominium Trust, (b) are not common expenses by the

definition at G.L. c.183A, §1, (c) are not recurring

and based on a budget pursuant to G.L. c.183A,

§6(a)(i), (d) are not relied upon by the Condominium

Trust for its operational or administrative needs

pursuant to G.L. c.183A, §1, (e) do not result in or

arise from an expense to the Condominium Trust

pursuant to G.L. c.183A, §6(a)(ii), and (f) have not

been declared enforceable as a common expense

assessment pursuant to G.L. c.183A, §6(a)(ii).

In light of the foregoing, the lower court erred

in dismissing Plaintiffs’ Amended Complaint due to

Plaintiff’s alleged failure to timely pay the

assessment under protect because the timely payment

36
standard articulated in Blood should not be extended

to strictly punitive assessments.

b. Extending the ‘Timely Payment’ standard

articulated in Blood to Strictly Punitive
Assessments is Contrary to Public Policy.

Imposing the timely payment standard articulated

in Blood on units owners for strictly punitive

assessments places an extreme burden on generally non-

lawyer, lay-people where there is little to no burden

on the Condominium Trust due to a delay in payment,

and is contrary to public policy. According to the

lower court’s ruling here, a unit owner that fails to

pay a strictly punitive assessment by an arbitrary

deadline set by unsympathetic trustees is forever

barred from challenging the assessment in court. Such

an impact violates an individual’s First Amendment

right to petition the government for a redress of

grievances. Cal Motor Transp. Co. v. Trucking

Unlimited, 404 U.S. 508, 510 (1972)(“the right of

access to the courts is indeed but one aspect of the

right of petition”).

This ruling effectively strips away the right of

judicial redress from unit owners who are often

laypersons unaware of the technical requirements

imposed by judicial decisions. It will encourage

37
Trustees to impose short deadlines for the repayment

of strictly punitive assessments which can be in the

thousands of dollars. The effect of lower court’s

decision is to disproportionately burden financially

disadvantaged unit owners who may be unable to plan

for, budget and pay a strictly punitive assessment—

those without the money to pay by the Trustees’

arbitrary deadline will lose any right to seek

judicial review of the assessment. As above, given the

fact that a Condominium Trust does not rely on the

payment of strictly punitive assessments for its

operations or financial stability, there is very

little to no burden on the Condominium Trust in

allowing unit owners to challenge strictly punitive

assessments before being required to pay.

The lower court’s decision further invites abuse

by unsympathetic trustees. Based on the lower court’s

ruling here, Condominium Trusts would be permitted to

set payment deadlines they know a unit owner cannot

meet, thereby ensuring that a strictly punitive

assessment will be free from judicial scrutiny

regardless of its validity.

Some hypotheticals illustrate this point:

38
 First, imagine an elderly couple on social

security or a family of four with one employed parent

receives a $1500.00 strictly punitive assessment due

within thirty (30) days. The unit owner disputes the

assessment but the trustees are unsympathetic and the

unit owner is unable to pay the assessment within the

thirty (30) day deadline. The trustees then decide to

hire an attorney to file suit and collect the strictly

punitive assessment. Before the elderly couple or

family of four knows it, they have a lien on their

unit for a $1500.00 punitive assessment and $20,000.00

in attorney’s fees, costs and expenses, and are now

facing foreclosure and living on the street.

Second, imagine a family of four goes on a two

week vacation to Disney world. As they are leaving,

the dad props open an exterior door to race back-and-

forth with the family’s luggage between the unit and a

waiting cab. Surveillance video records a propped door

with no one minding it in violation of Condominium

rules and regulations. The Trustees issue a fine of

$500.00 and hand deliver it to the unit the day the

family leaves. The notice provides a ten (10) day

deadline to pay. Upon return from their two (2) week

vacation, the family discovers the notice, disputes

39
the strictly punitive assessment, but has missed the

deadline to pay. The Trustees refuse to remove the

assessment. The family having just spent thousands of

dollars on a vacation is now forced to shell out

another $500.00 for propping a door open to take out

their luggage.

Based on the lower court’s ruling here, the unit

owners in both examples would have lost their right to

challenge an otherwise strictly punitive assessment,

with potentially catastrophic results.

The application of the Blood timeliness standard

so heavily burdens unit owners who do not have the

financial resources to absorb a strictly punitive

assessment even though there is little to no burden of

delayed payment, or payment after judicial

determination, to the Condominium Trust. Even the

Blood court recognized the importance of balancing the

interests of condominium unit owners and Condominium

Trusts. See Blood, 36 Mass. App. Ct. at 407 (“[t]he

compelling inequity of condominium unit owners being

held for illegal or unauthorized common expense

assessments solely because they have brought an action

as a counterclaim to a collection action instead of as

an independent action outweighs the benefits of

40
retroactive application”). In weighing the interests

of aggrieved unit owners and Condominium Trusts, the

timeliness rule in Blood should not be extended to

strictly punitive assessments.

c. Plaintiffs’ Payment of the Assessment was

Timely.

In the order dismissing Plaintiffs’ complaint,

the lower court cited MRJE, LLC v. Hajjar, 2010 WL

4070719 (Mass. Super. July 15, 2010) in support of its

holding that the Plaintiffs’ payment of the disputed

assessment was not “timely” paid.4 (A. 3). In MRJE, the

Superior Court stated that “payment [of a common

expense assessment] one year after the due date cannot

be held timely as a matter of law.” 2010 WL 4070719 at

1. The lower court suggests that because the MRJE

decision deemed payments past due by over one year to

be untimely, “as a matter of law,” that Plaintiff’s

payment six months after the arbitrary deadline set by

the Trustees, is also untimely. (A. 3). Neither the

MRJE court, nor the lower court here, provides a

framework for determining what is ‘timely’.

4
Although the order stated “that the assessment was
not timely paid under protest,” (A. 3), it is
uncontroverted that Plaintiffs did, in fact, mark the
check remitted as payment for the disputed assessment
“under protest.” (R.A. 207; Tr. 13).

41
 Nevertheless, in the present case the Condominium

Trust waived the original payment deadline when the

Trustees granted Plaintiffs an opportunity to be

heard, and then never set a new deadline for payment.

Almost one month after expiration of the original

deadline to pay,5 the Trustees allowed Plaintiffs to

present their opposition to the assessment at an

October 9, 2012 Trustees’ Meeting (the “Meeting”).

(R.A. 18). By allowing the Plaintiffs the opportunity

to dispute the punitive assessment, the Trust

implicitly forfeited any expectation of payment prior

to the Meeting.

Despite the evidence and testimony presented at

the Meeting, the Trustees notified the Plaintiffs of

their refusal to remove the assessment on October 22,

2012. The notice did not identify a new deadline for

payment. Thereafter, the Plaintiffs never received

notice of a new deadline for payment of the

assessment. (R.A. 19, 45). In fact, thereafter, the

Plaintiffs exchanged several communications with the

Condominium’s property manager, Jill Wetmore. It was

5
Initially the Plaintiffs were denied an opportunity
to be heard by the Trustees, but after several
attempts, were permitted to state their case before
the Trust on October 9, 2012. (R.A. 18).

42
not until March 21, 2013 that the Plaintiffs received

written notice that the Condominium Trust’s internal

review process into the disputed assessments was

complete. (R.A. 19)(see email from Jill Wetmore to

Plaintiffs stating that the Plaintiffs “will not

receive any further answers from me in this regard.

You will hear directly from the attorney handling the

court case.”). None of the communications contained

any notice to the Plaintiffs that suggested payment of

the strictly punitive assessment was required before

they could seek judicial review. Therefore, it is

evident that even the Trustees and property manager

were unaware of any such payment pre-requisite.

In addition, here, the Plaintiffs promptly paid

the strictly punitive assessment under protest and

then filed an Amended Complaint before the Defendants

filed its first Motion to Dismiss. Mass. R. Civ. P.

8(f), states that “all pleadings shall be so construed

as to do substantial justice.” See also, Wilson v.

Comm., 31 Mass. App. Ct. 757, 757 n.2 (1992) (stating

that although the Plaintiffs’ complaint, which the

lower court dismissed pursuant to Rule 12(b)(6),

arguably fails to comply with pleading requirements

set forth in Mass. R. Civ. P. 8, the Appeals Court

43
would “construe the complaint as to do substantial

justice”); Fahd v. Glass, 2007 WL 4555247 (Mass. Land.

Ct. Dec. 28, 2007)(Barnstable County Land Court

construed a unit owner’s motion for reimbursement as

one to amend his complaint in order “to do substantial

justice”).

In the present case, the lower court had the

obligation to construe the Plaintiffs’ Amended

Complaint as an original pleading. Doing so would also

have been justified by judicial economy, since

Plaintiffs would otherwise be free to refile their

Complaint within the statute of limitations (which is

presently tolled) in the event they are unsuccessful

on appeal.

44
 CONCLUSION

For the aforementioned reasons, the Plaintiffs

respectfully request that this Honorable Court reverse

the Trial Court’s order allowing Defendants’ motion to

dismiss.

Respectfully Submitted
PLAINTIFFS,
BY THEIR ATTORNEY

__________________________________
TRAVIS J. JACOBS, ESQ.
BBO No. 671921
tjacobs@thejacobslaw.com

__________________________________
STEFANO V. D’AGOSTINO, ESQ.
BBO No. 680893
sdagostino@thejacobslaw.com

THE JACOBS LAW, LLC

101 Tremont Street, Suite 712
Boston, MA 02108
P: 800.652.4783
F: 888.613.1919

DATED: APRIL 16, 2014

45