Drummer Boy Homes Association, Inc. v. Britton

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12-P-1761 Appeals Court

DRUMMER BOY HOMES ASSOCIATION, INC. vs. CAROLYN P. BRITTON &
another.1

No. 12-P-1761.

Middlesex. March 3, 2014. - November 7, 2014.

Present: Trainor, Brown, & Meade, JJ.

Condominiums, Common expenses. Real Property, Condominium.
Lien. Mortgage, Priority.

Civil actions commenced in the Concord Division of the
District Court Department on August 6, 2007; February 6, 2008;
and October 6, 2008.

After consolidation, the case was heard by Peter J.
Kilmartin, J., on a motion for summary judgment, and a motion to
alter and amend the judgment was also heard by him.

Thomas O. Moriarty (Katherine G. Brady with him) for the
plaintiff.
Randy A. Britton, pro se.
Henry A. Goodman, Ellen A. Shapiro, Merle R. Hass, Charles
A. Perkins, Jr., & Gary M. Daddario, for Community Associations
Institute, amicus curiae, submitted a brief.
Stephen C. Reilly & Jennifer E. Greaney, for Bank of
America, N.A., amicus curiae, submitted a brief.

1
Randy A. Britton.
2

BROWN, J. The plaintiff, Drummer Boy Homes Association,

Inc. (Association), appeals from a decision and order of the

Appellate Division of the District Court in the Association's

consolidated actions against the owners of a condominium unit to

recover unpaid common expenses. The Appellate Division ruled

that, pursuant to G. L. c. 183A, § 6, the Association's

statutory lien for those expenses was prior to the first

mortgage on the defendants' unit only to the extent of amounts

due for the six months preceding the institution of the first of

the Association's three consolidated lawsuits, and not for the

three successive six-month periods preceding each suit. The

defendants, Carolyn P. Britton and Randy Britton, appearing pro

se, cross-appeal, claiming the judgment is void due to misnomer

of the plaintiff.2 We affirm.

1. Background. We summarize the undisputed facts and

procedural history from the Appellate Division's July 9, 2010,

opinion, supplemented from the record. The Association provides

for the common operation of a condominium complex in Lexington

known as Drummer Boy Green. The defendants, owners of a unit in

the complex, withheld payment of their monthly fees for common

expenses in connection with a dispute with the Association over

2
We acknowledge the amicus brief submitted by Community
Associations Institute in support of the plaintiff, and the
amicus brief submitted by Bank of America, N.A., in support of
the decision of the Appellate Division.
3

certain parking rules and associated fines. Pertinent here, the

Association filed an action in the District Court on July 31,

2007, to recover the unpaid common expenses and to establish a

priority lien, as provided in c. 183A, § 6, that would be

superior to the first mortgage to the extent of the common

expense assessments due during the six months preceding the

suit.3 When the defendants continued to withhold the monthly

fees, the Association filed two more actions in succession, and

the three actions were consolidated.4

On the Association's motion for summary judgment, a judge

of the District Court ruled that, in accordance with the

statute, the Association's lien for the defendants' common

expense assessments had priority over the first mortgage, but

only to the extent of the six-month period preceding

commencement of the first of the consolidated actions. The

Association appealed to the Appellate Division, maintaining that

it was entitled to priority liens for three successive six-month

periods, for each action filed, but the Appellate Division

affirmed the judgment in all respects. In response to the

3
Two earlier actions filed by the Association against the
Brittons to recover unpaid common expenses were voluntarily
dismissed when the Brittons paid the amounts due.
4
Coldwell Banker Mortgage and Massachusetts Educational
Financing Authority, lienholders on the unit, were named as
parties in the complaint. Both appeared and filed answers, but
did not participate further in the proceedings and did not
appeal.
4

Brittons' appeal concerning the misnomer, the Appellate Division

rejected their argument that the judgment was void thereby, and

corrected the mistake by substituting the Drummer Boy Homes

Association, Inc.5 The Association appealed to this court and

the Brittons cross-appealed.

2. Discussion. Chapter 183A, § 6(a)(i), as amended by St.

1992, c. 400, § 7, provides, in relevant part, that "[t]he

organization of unit owners shall have a lien on a unit for any

common expense assessment levied against that unit from the time

the assessment becomes due." In § 6(c), second par., as amended

through St. 1992, c. 400, § 9, the statute further provides, in

relevant part, as follows:

"Such lien is prior to all other liens and
encumbrances on a unit except (i) liens and encumbrances
recorded before the recordation of the master deed, (ii) a
first mortgage on the unit recorded before the date on
which the assessment sought to be enforced became
delinquent, and (iii) liens for real estate taxes and other
municipal assessments or charges against the unit. This
lien is also prior to the mortgages described in clause
(ii) above to the extent of the common expense assessments
based on the budget adopted pursuant to subsection (a)
above which would have become due in the absence of
acceleration during the six months immediately preceding
institution of an action to enforce the lien and to the
extent of any costs and reasonable attorneys' fees incurred
in the action to enforce the lien . . . ."

5
The Association originally filed suit as the "Board of
Directors of the Drummer Boy Homes Association, Inc." The
Appellate Division determined that the Brittons suffered no
prejudice as a result of the correction.
5

According to its plain language, the statute affords the

Association a lien for common expenses, as they become due, that

is deemed prior to all other liens, except those listed in

§ 6(c), second par., (i) through (iii). In addition, upon

instituting an enforcement action, the Association obtained a

lien that is deemed superior to the first mortgage on the

defendants' unit for amounts due for the six months preceding

the Association's July 31, 2007, complaint, plus costs and

reasonable attorney's fees incurred in the action. Hence, the

Association's lien for overdue assessments that fall outside the

six-month period preceding the lawsuit are not superior to the

first mortgage, and do not enjoy a so-called "super-priority"

status. See, e.g., Trustees of Macintosh Condominium Assn. v.

Federal Deposit Ins. Corp., 908 F. Supp. 58, 62-63 (D. Mass.

1995) (distinguishing between an association's super-priority

lien for the six months preceding an action, which is superior

to a first mortgage, and the priority of the lien for any

remaining unpaid assessments, pursuant to c. 183A, § 6).

We reject the Association's argument that, by filing

successive lawsuits, the statute permits it to establish

multiple priority liens, ahead of the first mortgage, for

additional six-month periods of unpaid assessments. As the

Appellate Division correctly observed, the six-month priority

lien set forth in c. 183A, § 6(c), second par., is consistent
6

with the six-month priority period set forth in the Uniform

Condominium Act, § 3-116 (1980),6 which was intended as an

"equitable balance between the need to enforce collection of

unpaid assessments and the obvious necessity for protecting the

priority of the security interests of mortgage lenders."

Uniform Condominium Act, § 3-116 comment 2. To that end, under

the Uniform Condominium Act, "[w]hile the vast majority of the

condominium's equity would be left for the mortgagee, six

months' worth of assessments were given to the condominium

association as a priority lien." Goldmintz, Lien Priorities:

The Defects of Limiting the "Super Priority" for Common Interest

Communities, 33 Cardozo L. Rev. 267, 273 (2011-2012). We

similarly construe c. 183A, § 6(c), as intended to effect a

balance between the interests of condominium associations and

those of lenders that rely on the common-law rule of first-in-

time priority in extending mortgages to unit owners. See

generally Commonwealth v. Jean-Pierre, 65 Mass. App. Ct. 162,

6
Section 3-116(b) of the Uniform Condominium Act (1980)
provides, in relevant part:

"The lien is also prior to the mortgages and deeds of trust
described in clause (ii) above [i.e., a first mortgage or
deed of trust on the unit recorded before the date on which
the assessment sought to be enforced became delinquent] to
the extent of the common expense assessments based on the
periodic budget adopted by the association pursuant to
Section 3-115(a) which would have become due in the absence
of acceleration during the 6 months immediately preceding
institution of an action to enforce the lien."
7

163 (2005) (guidance in statutory interpretation may be found in

legislative history, construction of related statutes, and the

law of other jurisdictions).

The Association argues that there is nothing explicit in

the statute that curtails its ability to file successive

lawsuits in order to secure multiple six-month priority liens

ahead of the first mortgage. Were that the case, the language

of § 6(c), limiting the portion of an association's lien that is

ahead of the first mortgage to six months' worth of assessments,

would seem a cumbersome and, ultimately, superfluous mechanism

if successive lawsuits could be utilized to secure the entirety

of the unit owner's delinquency. See, e.g., Commonwealth v.

Woods Hole, Martha's Vineyard & Nantucket S.S. Authy., 352 Mass.

617, 618 (1967) (statutory interpretation should leave no

portion of the statute superfluous). See also Commonwealth v.

Jean-Pierre, supra at 164, quoting from Commonwealth v. Burke,

392 Mass. 688, 690 (1984) ("[A] statute should not be

interpreted as being at odds with the common law 'unless the

intent to alter it is clearly expressed'").

Nor does it appear that the six-month priority period was

selected by the Legislature at random. Similar statutes

providing condominium associations with a six-month priority

lien for unpaid assessments ahead of the first mortgage were

enacted in numerous States in response to the increase in
8

foreclosures that endangered the financial stability of

condominium associations and unduly burdened other unit owners.

See Boyack, Community Collateral Damage: A Question of

Priorities, 43 Loy. U. Chi. L.J. 53, 58-61 (2011-2012). Because

a delinquency in common expenses often arose alongside a

delinquency in mortgage payments, the six-month priority lien

was crafted to address the problem at a time when lender

foreclosures typically took six months to complete. Goldmintz,

Lien Priorities: The Defects of Limiting the "Super Priority"

for Common Interest Communities, 33 Cardozo L. Rev. at 281 &

n.91.7 The legislation did not foresee that in today's climate

of extensive and long-delayed foreclosure, six months would

generally be inadequate. See id. at 269. Nevertheless,

legislative efforts to increase the super-priority status of

7
Condominium associations "often must compete with lenders
for limited funds in what is today a ubiquitous series of
events: a typical unit owner in a [common interest community,
or CIC], like many homeowners across the country, owns a
mortgage on the unit held by a lender. When a unit owner enters
difficult financial straits, he or she often simultaneously
defaults on both monthly maintenance payments and monthly
mortgage payments. In order to recoup their respective losses,
both the lender and the CIC attach an encumbrance to the
property, known as a lien. Each lienholder then competes in a
foreclosure sale to collect often-substantial debts from the
limited and insufficient value of the unit." (Footnotes
omitted.) Goldmintz, Lien Priorities: The Defects of Limiting
the "Super Priority" for Common Interest Communities, 33 Cardozo
L. Rev. at 268.
9

condominium association liens beyond the six-month period

preceding suit have met with little success. Id. at 288.8

While we are aware of no Massachusetts cases on point, the

Supreme Court of Connecticut, in Hudson House Condominium Assn.,

Inc. v. Brooks, 223 Conn. 610 (1992), rejected a similar

argument made by a condominium association under Connecticut's

priority lien statute, which, like that in Massachusetts,

provides a condominium association a priority lien ahead of the

first mortgage for six months' worth of assessments preceding

suit. The association in that case sought priority status,

ahead of the first mortgage, for all common expenses accruing

during the pendency of the action, "because it could, in theory,

initiate a foreclosure on delinquent common expense assessments

every six months." Id. at 614. Based on what the court

characterized as the "unequivocal language" of the statute, and

the policy issue at stake, the court determined that an

extension of the association's priority lien would more

appropriately come from the Legislature. Id. at 616.

To support its multiple lien argument, the Association also

puts much emphasis on the fact that the phrase "priority liens,"

8
In addition, Federally insured mortgages have typically
required that a first mortgage be subject to a priority lien of
no greater than six months for assessments, posing an obstacle
to legislative efforts to increase the priority amount of
assessments. See Boyack, Community Collateral Damage: A
Question of Priorities, 43 Loy. U. Chi. L.J. at 63-64.
10

in the plural, is utilized throughout c. 183A, § 6(c), fourth

par. That paragraph sets forth a procedure available to a first

mortgagee to avoid establishment of a condominium association's

six-month priority lien by entering into a written agreement

with the association before a complaint is filed. The

Association insists that the use of "priority liens" in that

paragraph reflects legislative intent to permit successive

lawsuits to establish multiple six-month priority liens, ahead

of the first mortgage, under c. 183A, § 6(c), second par.

We note, however, that § 6(c) utilizes only the singular

"lien" when referring specifically to an association's six-month

priority lien for unpaid common expense assessments.9 This is

consistent with § 6(a), which distinguishes between the priority

lien arising from the assessment of common expenses, in

§ 6(a)(i), and the priority lien arising from expenses the

association incurs in attempting to collect delinquent

assessments or redress other problems with the unit owner, in

9
For example, c. 183A, § 6(c), fifth par, which expands on
the procedure set out in the fourth paragraph, provides, in
relevant part, that "[t]he failure of the organization of unit
owners to send the written statement to the first mortgagee, as
described above, shall not affect the priority lien of the
organization of unit owners for up to six months' common
expenses, but the priority amount shall not include any costs or
attorneys' fees incurred to collect or enforce the liens."
G. L. c. 183A, § 6(c), inserted by St. 1998, c. 242, § 6.
11

§ 6(a)(ii).10 Both are treated as priority liens for common

expense assessments, in that they enjoy priority to the extent

delineated in § 6(c), second par., and may be enforced

accordingly. But the procedure set forth in the fourth and

fifth paragraphs of § 6(c) affords the first mortgagee a means

to avoid an enforcement action, and thus the six-month priority

lien on the unit, by agreeing to pay the unit owner's

delinquency, certain future common expenses and assessments, and

the association's collection costs. We decline to infer

legislative intent to permit multiple six-month priority liens

ahead of the first mortgage through the institution of

10
Section 6(a)(ii) provides, in relevant part:

"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 is 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 under this chapter."

Section 6(a)(ii) further provides:

"The organization of unit owners may also assess any fees,
attorneys' fees, charges, late charges, fines, costs of
collection and enforcement, court costs, and interest
charged pursuant to this chapter against the unit owner and
such assessment shall constitute a lien against the unit
from the time the assessment is due, and shall be
enforceable as common expense assessments under this
chapter."
12

successive lawsuits merely from the use of the plural "priority

liens" in a section of the statute addressing the settlement of

an association's various expenses.11

Based on the foregoing, we conclude that it is for the

Legislature, and not for this court, to decide whether to expand

the priority status for common expense assessments beyond a

single six-month period preceding the filing of an action. We

do not construe c. 183A, § 6, in its current form, to afford the

Association in this case a priority lien, ahead of the first

mortgage, in an amount equal to eighteen months of assessments

through the filing of three successive lawsuits.

The Brittons preserved only one issue for cross-appeal,

that is, whether the judgment is a nullity due the misnomer of

the plaintiff. The Brittons do not persuade us that the

Appellate Division erred in correcting the mistake rather than

11
We are also mindful that, in construing a statute, undue
significance should not attach to the use of the singular versus
the plural, without a clear indication of legislative intent.
See G. L. c. 4, § 6 ("[w]ords importing the singular number may
extend and be applied to several persons or things, words
importing the plural number may include the singular"). Had the
Legislature intended multiple six-month priority liens, "it
could have said so readily," rather than utilizing the plural of
liens elsewhere in the statute. Commonwealth v. Tsouprakakis,
267 Mass. 496, 500 (1929). See Hudson House Condominium Assn.,
Inc. v. Brooks, 223 Conn. at 615 (statutory use of
"assessments," in the plural, did not indicate legislative
intent to permit multiple priority liens beyond the six-month
limit set out in the statute).
13

voiding the judgment. We therefore affirm the decision and

order of the Appellate Division.

So ordered.