New Developments in the Law of The Commonwealth of Massachusetts Related to Condominiums

 

  1. In Barrasso v. Hillview West Condominium, 74 Mass. App. Ct. 135 (2009), the Appeals Court held when snow is compacted by a plow it is not a “natural accumulation” within the meaning of relevant case law or under any “reasonable interpretation” of the words, and therefore a Condominium is responsible for the plaintiff’s injuries.
  2. In Northern Security Insurance Company, Inc. v. Sandpiper Village Condominium Trust et al., 24 Mass. L. Rep. 500 (2008), the Court held that both a Condominium and its property manager were entitled to a defense under a commercial general liability coverage form (CGL) and a directors and officers liability endorsement, because the condominium assessment which formed the basis of the suit by the unit owner was issued as a result of property damage caused by the unit owner and fell within the provisions of the CGL.
  3. In Malonson v. Arsenault, et al, 17 Mass. L. Rep. 220 (2004), the Court held that the guest of a tenant injured as a direct result of a landlord’s unfair and deceptive acts and practices in renting an apartment that is dangerously uninhabitable has standing to sue the landlord under G.L. c. 93A.

Barrasso v. Hillview West Condominium

74 Mass. App. Ct. 135 (2009)

By way of background, the plaintiff, Barrasso brought an action in Superior Court for injuries he sustained after he slipped and fell on an accumulation of snow and ice while attempting to deposit the trash into a dumpster at his condominium complex on March 8, 2001. The defendants, Hillview West Condominium (“Hillview”), and its snow removal contractor, Environmental Landscape Management, Inc. (“ELM”), brought a motion for summary judgment alleging that the evidence indicates a natural accumulation of snow and/or ice for which no liability can attach.

The summary judgment record indicated that on March 5, 2001 a major snowstorm hit the northeast, resulting in the declaration of a two-day state of emergency, which lasted throughout March 6 and 7. The total accumulation was approximately sixteen (16) inches. On the morning of March 8, 2001, the parking lot had already been plowed by ELM when the plaintiff went outside to the dumpster before leaving for work. Barrasso testified that there was a light dusting of freshly fallen snow on the ground and that the front of the dumpster was blocked by an accumulation of snow that ELM’s plows had pushed up against it. The plow-created snow bank or embankment was approximately three feet wide, waist deep, and covered the entire length of the dumpster. In order to deposit his trash, the plaintiff stated he had to walk through the snow bank, at which time his foot hit a “large piece” of “hardened compacted snow and ice,” which caused him to slip and fall.

Although the Superior Court granted the defendants’ motion, the Appeals Court disagreed and held that it was undisputed that the snow bank which the plaintiff stepped into did not accumulate naturally, but was created by a snowplow pushing snow against the dumpster, and that together with the plaintiff’s description of the snow, (“hardened”, “compacted”, “compressed”), and there was sufficient evidence to defeat summary judgment as to whether the compressed piece of snow and ice was created by the plow. The Court held that even if the movement of naturally accumulated snow into a snow bank by a plow still left it a “natural accumulation”, (which the Court noted would not be an ordinary usage of the word “natural”), the Court concluded that when snow is compacted by a plow it is not a “natural accumulation”.

Northern Security Insurance Co., Inc. v. Sandpiper Village Condominium Trust et al

24 Mass. L. Rep. 500 (2008)

By way of background, in early 2000, the Sandpiper Village Condominium Trust (“Sandpiper”) assessed a $ 1,000 fine on a unit owner after a pipe burst in her unit damaging another unit and the condominium’s basement.  The $ 1,000 assessment reflected the insurance deductible for the repair work. The unit owner refused to pay and the trust placed a lien on her unit. After the unit owner paid the $ 1,000 assessment, the trust refused to release the lien because of $ 17,000 in attorneys’ fees and costs. Ultimately, the unit owner paid the additional $ 17,000 under protest.             Shortly thereafter, the unit owner sued the trust and defendant property manager for negligence and breach of fiduciary duty, and the trust forwarded the complaint to its insurer. Although the policy included a commercial general liability coverage form (CGL) and a directors and officers liability endorsement, the insurance company refused to provide a defense to the property because they claimed he did not qualify as an insured under the endorsement. The lower Court held that the trust was entitled to a defense under the endorsement, but that the property manager was not entitled to a defense because his was not a named insured under the endorsement.

After reviewing the record of the lower Court, the Court in this matter agreed with the lower Court that the property manager was not a named insured.  However, the Court found that the property manager was entitled to a defense under the CGL, because the $ 1,000 assessment which forms the basis of the suit was issued as a result of property damage caused by the unit owner. The Court determined this fell within the provisions of the CGL. Therefore, the Court concluded that the defendants were entitled to a declaration that the policy provided coverage to the trust under both the endorsement and the CGL and to the property manager pursuant to the CGL.

Malonson v. Arsenault, et al

17 Mass. L. Rep. 220 (2004)

By way of background, plaintiff was the grandmother of a tenant in a building owned by defendant Arsenault and managed by defendant Tousignant. The plaintiff alleged that while on the premises as the guest of her granddaughter-tenant, she suffered serious physical injuries when one of the front steps of the outdoor porch stairs broke, causing her to fall and to suffer breaks in both of her ankles. The plaintiff’s complaint alleged negligence and a violation of G. L. c. 93A against each of the defendants. Defendant Tousignant filed a motion for summary judgment on grounds that an action under G. L. c. 93A cannot be maintained by the guest of a tenant against a property owner or property manager.

The Court in this matter reviewed case precedent, citing the Supreme Judicial Court’s landmark decision in Mounsey v. Ellard, 363 Mass. 693 (1973), which established that “occupiers owe a duty of reasonable care to all lawful visitors without regard to their common law status as invitees or licensees.”  Quoting a subsequent SJC case, Lindsey v. Massios, 372 Mass. 79, 82 (1977), the Court also recognized that the reasoning of Mounsey also applies to guests of the tenant in terms that are pertinent to the question in this case:

“Therefore, we no longer follow the common law rule that a landlord owes to his tenants’ visitors the same duty he owes to his tenants concerning the maintenance of common passageways in his control. The landowner’s duty of reasonable care in maintaining property he controls extends to all lawful visitors on his premises, including the lawful visitors of his tenants.Lindsey, 372 Mass. at 82.

Moving on to an analysis of G.L. c. 93A, the Court concluded that there nothing in G. L. c. 93A evidencing an intention on the part of the legislature to limit the liability of a landlord to injuries suffered by tenants or other occupants of the premises.  As such, the Court held that just as the common law has changed to hold that a landowner’s duty of reasonable care in maintaining property he controls extends to all lawful visitors on his premises, including the lawful visitors of his tenants, the guest of a tenant injured as a direct result of the landlord’s unfair and deceptive acts and practices in renting an apartment that is dangerously uninhabitable has standing to sue the landlord/landowner.

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