TRUSTEES OF THE 549-551 BOYLSTON STREET CONDOMINIUM TRUST v. WALTER CHAMBERLAIN & Another, Trustees.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-1000

TRUSTEES OF THE 549-551 BOYLSTON STREET CONDOMINIUM TRUST

vs.

WALTER CHAMBERLAIN & another,1 trustees.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, trustees of a condominium trust (trustees),

challenge a Superior Court judge's grant of summary judgment in

favor of the defendants, owners of a unit within that

condominium association (unit owners). The trustees claim the

judge erred by ruling that G. L. c. 183A, § 6, did not authorize

the trustees to assess common expenses in excess of the unit

owners' eight percent beneficial interest in the trust. We

affirm the judgment, as well as the order denying the motion to

1 Yin Kau Ho.

2 Of the Walter Chamberlain Revocable Trust.
alter or amend the judgment, and award appellate attorney's fees

to the unit owners.

Background. The plaintiffs are the trustees of the 549-551

Boylston Street Condominium Trust, which manages and administers

the 549-551 Boylston Street Condominium. The unit owners are

the trustees of a separate trust that owns a unit within that

condominium building. Per the condominium's master deed, the

unit owners have an eight percent beneficial interest in the

entire condominium property. The trustees have the remaining

ninety-two percent beneficial interest. The declaration of

trust governing the 549-551 Boylston Street Condominium Trust

establishes that unit owners are "liable for common expenses

. . . in proportion to their respective percentages of

beneficial interest."

Both parties to this suit were involved in an earlier

action, in which the unit owners claimed the trustees had

breached their fiduciary duty, misused and misappropriated trust

funds, and issued improper assessments, with the trustees

counterclaiming for abuse of process and malicious prosecution.

Judgment entered on the majority of the unit owners' claims, and

the trustees' counterclaims were dismissed. In an unpublished

memorandum and order, a panel of this court affirmed the

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judgment and awarded appellate attorney's fees to the unit

owners. Chamberlain v. Badaoui, 99 Mass. App. Ct. 1114 (2021).

The trustees then submitted a condominium assessment to the

unit owners for $75,003.42 (assessment). This assessment

represented the entire common expense incurred in defending

against the unit owners' successful suit, less some amount of

the damages awarded to the unit owners. In the subsequent

Superior Court action giving rise to this appeal, a judge denied

the trustees' request for a declaration that the unit owners

owed the full amount assessed, granted summary judgment to the

unit owners, and limited the unit owners' portion of the

assessment to eight percent of the common expenses incurred.

Discussion. Summary judgment. "We review a decision on a

motion for summary judgment de novo." Sutton v. Jordan's

Furniture, Inc., 493 Mass. 728, 735 (2024), quoting Conservation

Comm'n of Norton v. Pesa, 488 Mass. 325, 330 (2021). With both

parties having moved for summary judgment, "we view the evidence

in the light most favorable to the [trustees]," as the party

against whom summary judgment was entered. Sutton, supra.

"Summary judgment is appropriate where there is no genuine issue

of material fact and the moving party is entitled to judgment as

a matter of law." Id., quoting Pesa, supra.

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The trustees argue that G. L. c. 183A, § 6, authorized

assessing the unit owners for common expenses in excess of the

unit owners' eight percent beneficial interest. The common

expenses at issue arose from past litigation, in which the

trustees were found to have misappropriated trust funds and

issued improper assessments against those same unit owners. We

are not persuaded.

This case is principally resolved by reference to G. L.

c. 183A, § 6.3 That statute restricts the manner of assessment

of common expenses to unit owners, dictating that "all common

expenses shall be assessed against all units . . . in accordance

with their respective percentages of undivided interest in the

common areas and facilities." G. L. c. 183A, § 6 (a) (i). The

statute does recognize an exception, wherein common expenses can

be assessed exclusively to certain unit owners when those

expenses were incurred "as a result of the unit owner's failure

to abide by the requirements of [the statute] or the

requirements of the master deed, trust, by-laws, restrictions,

rules or regulations, or by the misconduct of any unit owner."

G. L. c. 183A, § 6 (a) (ii). Such an assessment "shall

3 While the trustees devote a significant portion of their
brief to addressing the unit owners' arguments at summary
judgment concerning the master deed and declaration of trust,
the trustees concede that G. L. c. 183A, § 6, "exclusively"
controls.

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constitute a lien against that unit from the time the assessment

is due." Id.

The trustees claim that this statute authorizes an

assessment and lien to recover from the unit owners the entire

common expense incurred in litigating the unit owners' prior

suit. We disagree. We agree with the thorough and well-

reasoned decision of the motion judge that the trustees were

"unable to establish that the [u]nit [o]wners failed to abide by

any requirement of chapter 183A, the Master Deed, or the

Declaration of Trust."

On appeal, the trustees make no claim that the common

expenses at issue arose from the unit owners' misconduct or

failure to abide by the requirements referenced above, thus

waiving any such argument. See Mass. R. A. P. 16 (a) (9) (A),

as appearing in 481 Mass. 1628 (2019). Furthermore, as the

motion judge noted, no such failure is apparent from the record.

There are thus no statutory grounds justifying a lien against

the unit owners. See G. L. c. 183A, § 6 (a) (ii).

We disagree with the trustees' assertion that the unit

owners' acceptance of liability for eight percent of the common

expenses has waived any argument concerning liability for the

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remainder of the common expenses.4 The unit owners'

acknowledgment that the statute and master deed authorize

assessment for eight percent of common expenses neither

contradicts nor waives their arguments against being assessed

more than that amount.

Appellate attorney's fees. We award appellate attorney's

fees and double costs to the unit owners. It is within our

discretion to determine that an appeal is frivolous "[w]hen the

law is well settled, [and] when there can be no reasonable

expectation of a reversal." Avery v. Steele, 414 Mass. 450, 455

(1993).

In a separate action, the trustees were found to have

misappropriated funds and ordered to return fees assessed to the

unit owners which were "unfair, unreasonable, and beyond the

lawful authority of the trustees," and which "involve[d] self-

dealing and breach of fiduciary duty." The trustees concede

that the assessment at issue in this action is to recover from

those same unit owners the funds expended in defending their

prior misconduct. They argue that the unit owners conceded the

validity of the assessment insofar as they accepted their eight

4 Because the trustees premised their motion to alter or
amend the judgment, pursuant to Mass. R. Civ. P. 59 (e), 365
Mass. 824 (1974), on this same argument, we agree with the
judge's denial of that motion as well.

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percent responsibility for any common expenses; that this

concession precluded the unit owners from challenging the fact

that they were assessed one hundred percent of the common

expenses at issue here; and that the motion judge erroneously

based her decision on G. L. c. 183A, § 6 (a) (ii), the very

statute which the trustees allege permits the assessment they

made.

Pursuant to our discretion under G. L. c. 211A, § 15, and

Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019), we

conclude this appeal is frivolous and award appellate attorney's

fees and double costs. See Fronk v. Fowler, 456 Mass. 317, 326-

327 (2010). The unit owners may submit a petition for appellate

attorney's fees and double costs, together with supporting

documentation, within fourteen days of the date of issuance of

this decision, and the trustees will have fourteen days

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thereafter to respond. See Fabre v. Walton, 441 Mass. 9, 10-11

(2004).

Judgment affirmed.

Order denying motion to alter
or amend judgment affirmed.

By the Court (Hershfang,
Hodgens & Smyth, JJ.5),

Clerk

Entered: April 6, 2026.

5 The panelists are listed in order of seniority.

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