Bar: condo easement case cautionary tale for drafters.

Byline: Barry Bridges

Real estate attorneys say a recent Appeals Court ruling denying a condominium owner's claim of easement through an adjoining unit serves as a reminder that practitioners need to exercise diligence and foresight when drafting condo documents.

The panel used the relevant documents as the polestar in reversing a Superior Court judge and holding that the plaintiffs did not enjoy an express easement or an easement by necessity to gain a secondary means of egress by accessing fire escape stairs.

In finding against an express easement, the court explained that the master deed was clear and unambiguous in establishing that an owner's possessory interest in his unit takes priority over a purported easement.

Further, the panel rejected the plaintiffs' contention that they held an easement by necessity, finding no evidence that the condominium developer had such an intent. It emphasized that the unit owners' rights and limitations are found exclusively within the condominium documents.

"To read such an easement by necessity into the master deed would infringe upon [the defendants'] exclusive use and possession of [their unit], and our law simply does not sanction this type of private eminent domain," Judge Vickie L. Henry wrote on behalf of the Appeals Court panel.

And, while "sympathetic to the impact" on the marketability of a unit with no secondary exit, Henry added that the court could not "disregard the legal instruments that created the condominium and units, and neither can the [plaintiffs]."

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"Lawyers have to be very careful when drafting condominium documents or other real estate instruments so as not to render one parcel, or in this case one unit, practically useless, because Massachusetts courts have demonstrated a reluctance to recognize easements by necessity."

Edmund A. Allcock, Braintree

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The 13-page decision is Chamberlain, et al. v. Badaoui, et al., Lawyers Weekly No. 11-092-19. The full text of the ruling can be found here.

Restrictive reading

Neither the plaintiffs' lawyer, William F. Spallina of Boston, nor defense counsel David B. Chaffin of Boston responded to requests for comment before press time. But several other real estate attorneys weighed in on the decision.

Angel Kozeli Mozina of Boston described the holding as "yet another indication of a trend we've been seeing with the Appeals Court and the [Supreme Judicial Court] in real estate cases a more restrictive, conservative reading of...