The Lincolnshire Condominium

Beacon Services, Inc.

Repairs versus Improvments

December 5th, 2019

Trustees of the Lincolnshire Condominium Trust Lincolnshire Condominium 15 River Street Boston, MA 02108-3409

Re:    Proposed Repairs to Lincolnshire Condominium Common Areas

To the Trustees:

You requested that Goldman & Pease provide a legal advisory regarding whether the Trustees of the Lincolnshire Condominium Trust (“Trustees”) may undertake certain repairs and refurbishment work within some common areas of Lincolnshire Condominium (“Condominium”) without the need to obtain approval from the unit owners of the Condominium (“Unit Owners”).

For the foregoing reasons, it is our opinion that the contemplated work constitutes repairs, not improvements to the Condominium, and may be completed at the Trustees’ discretion, without the need to obtain the approval of the Unit Owners.

I. The Proposed Repair Work

You have provided to Goldman & Pease a general description of the anticipated repair work, which will consist of repair and replacement of certain outdated or damaged common areas elements. More specifically the repair work includes, without limitation, painting lobby walls, replacing damaged wallpaper, replacing old and damaged lobby furniture, replacing damaged ceiling tiles, and replacing buckling vinyl flooring and subflooring with ceramic tiles (collectively, “Repair Work”).

A.    The Trustees Have Broad Authority to Engage in Maintenance. Repair

and Replacement of the Condominium Common Areas.

The Declaration of Trust of the Lincolnshire Condominium Trust (“Declaration”) provides that the Trustees have broad authority to maintain, repair and to replace the Condominium’s common areas as they see fit.

Article V, Section 1 of the Declaration provides that the Trustees shall have “full power and uncontrolled discretion, subject only to the express provisions, limitations and conditions hereof and of [ ] Chapter 183 A and the Master Deed, at any time and from time to time and without the necessity of applying to any court or to the Unit Owners for leave so to do, to do the following . . Section l(xvii) of the Declaration expressly includes maintenance, repair and replacement of the common areas in that full power and uncontrolled discretion:

“Generally, in all matters not herein or in the Master Deed otherwise specified, to control, manage, and dispose of the Trust Property as if the Trustees were the absolute owners thereof and to do any and all acts, including the execution of any instruments, that by their performance thereof shall be shown to be in their judgment for the best interest of the Unit Owners; and the Trustees shall have, without limitation, all of the rights and powers set forth in said Chapter 183 A and the Trustees shall by the exercise and fulfillment of the powers and provisions set forth in this Article V provide for the necessary operations of the Condominium and for maintenance, repair, and replacement of the common areas and facilities and assessments and payments therefore, including the approval of payment vouchers.

Declaration, Section 1 (xvii).

The broad discretion the Declaration grants to the Trustees concerning common area repair and maintenance is echoed by the statutory authority given to condominium unit organizations under Massachusetts Condominium Law chapter 183 A wherein, “necessary work of maintenance, repair and replacement of the common areas and facilities shall be carried out as provided in the by-laws.” M.G.L. 183A, §5(e).

B.    The Proposed Repair Work is Maintenance. Repair and Replacement, Not “Improvements”.

The Declaration allows the Trustees to carry out maintenance, repairs and replacement at the Trustees’ discretion, but “improvements” to the common areas of the Condominium require approval by Unit Owners. The approval vote triggered by “improvements” is set forth in Declaration Section 4B, Trustee Proposed Improvements to Common Areas, and provides that if proposed work at the Condominium is an “improvement”, Unit Owners holding seventy-five percent (75%) of the beneficial interest in the Common Area must agree to the improvement before the cost may be assessed as a common expense in the same proportion as each Unit Owner contributes to the Common Expenses, as defined in the Declaration. If the supermajority vote is not reached, but more than fifty percent (50%) and less than seventy-five percent (75%) of all Unit Owners agree to the improvement, the Unit Owners who assented engage in a series of revotes and the Declaration then specifies the appropriate division of costs based on those outcomes. See Declaration, Section 4B.

For the purposes of this Opinion Letter, however, it is unnecessary for Goldman & Pease to delve into the Declaration’s mechanisms for voting for improvements, where a review of relevant Massachusetts case law makes clear that the Repair Work does not constitute an “improvement” to the Condominium.

Massachusetts courts have held that, “the improvement category which only a vote by the unit owners may authorize is reserved for work which does more in the way of new, permanent addition to, or expansion of, the common elements ..Fazio v. Trustees of the River House Condo. Trust. 19 LCR 454,460 (2011) (quoting Bonderman v. Tourai Naghieh, 13 LCR 406,408 (2005)). In Fazio, the Land Court held that a Beacon Hill condominium trust’s decision to fortify and bolster an existing screen of trees to block the property from Storrow Drive and mitigate traffic noise was not an improvement. See Fazio 19 LCR 454, 460 (replacing four ailing ash trees with eleven pine trees as a screen is maintenance, not improvement, where trees provide multiple utilitarian purposes). affirmed by Fazio v. Trustees of the River House Condo. Trust. 81 Mass. App. Ct. 1140 (2012). In its unpublished opinion, the Massachusetts Court of Appeals affirmed the Land Court’s understanding of the difference between repairs and improvements and emphasized that, “the project is unquestionably within the [Trustees] management authority and of collective benefit to all unit owners, being reasonably related to concerns of privacy, security, and minimizing noise.” Fazio. 81 Mass. App. Ct. at 1141.

In Bonderman, condominium trustees imposed a $6,000,000 special assessment to fund a reserve for a variety of projects without putting the assessment (or the projects the assessment would fund) to a unit owner vote. See 13 LCR at 407. The Land Court held that the broad scope of the anticipated work – complete renovation of condominium common areas that “had been falling into disrepair for a long time” – constituted repair rather than improvements. Id- at 406. The Court further elaborated that safety and modernization updates were well within the scope of work considered repairs, not improvements:

“Work which fixes, restores, corrects, and returns to a more safe and modem condition the common elements may well constitute repair or restoration, even if the work involved takes considerable time, covers a wide scope, and costs much.”

Id. at 407-408. The Court found that, in addition to extensive masonry repairs and reconstruction of a parking garage and deck, the Trustees’ plan for “repair of and upgrades to fire, safety and security systems” were also repairs, not improvements. Id. at 408, footnote 7. The Court commented without decision that a proposed enclosure of a loggia (a large new wooden structure), which would add 9,439 square feet to the complex, “would appear on its face more akin to an improvement than a repair.” Id. at 408.

The repair and refurbishment project at issue in Bonderman was an order of magnitude larger in scope (and cost) than the Repair Work proposed by the Trustees, yet even that larger project did not constitute improvements where the work did not add new, permanent additions to that condominium. Here, the proposed Repair Work is typical repair, refurbishment and maintenance that is well within the scope of work Massachusetts courts deem repairs, not improvements.

For the aforementioned reasons, it is our opinion that the proposed Repair Work to certain Lincolnshire Condominium common areas are repairs, not improvements to the Condominium, and may be completed at the Trustees’ discretion without the need to obtain the approval of the Unit Owners.

Please feel free to contact me concerning this letter and the issues raised herein after your review.