NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

16-P-1143 Appeals Court

MANUEL J. CALVAO & another1

 vs. KATHLEEN E. RASPALLO.

No. 16-P-1143.

Barnstable. May 31, 2017. - September 29, 2017.

Present: Green, Wolohojian, & Ditkoff, JJ.

Condominiums, Common area, Master deed. Real Property, 

Condominium, Restrictions. Practice, Civil, Summary 

judgment.

Civil action commenced in the Superior Court Department on 

December 14, 2011. 

The case was heard by Christopher J. Muse, J., on a motion 

for summary judgment, and a motion for equitable relief, 

assessment of damages, and entry of final judgment was heard by 

him.

Peter S. Farber for the defendant.

Brian J. Wall for the plaintiffs.

DITKOFF, J. The defendant, Kathleen Raspallo, appeals from 

a Superior Court judgment requiring her, inter alia, to remove 

an addition she constructed on condominium common area assigned 

1 Brenda E. Calvao.

 
2

to the exclusive use of her unit. Construing G. L. c. 183A, 

§ 5, we determine that a unit owner may not annex exclusive use 

common area2 to her unit without the unanimous consent of the 

other unit owners holding a legal interest in that common area. 

Discerning no error in the judge's other conclusions, we affirm.

1. Background. We summarize the relevant facts of this 

case as presented to the judge on motion for summary judgment 

and the subsequent equitable relief hearing. The Tall Pines 

Condominium in the town of Dennis consists of two units 

separated by approximately thirty-two feet. Manuel and Brenda 

Calvao own unit 1, and Kathleen Raspallo owns unit 2, which she 

has used as her full-time residence since she purchased it in 

2003. The vast majority of the common area is designated for 

the exclusive use of one or the other unit. The master deed 

grants unit 1 forty-six percent of the beneficial interest in 

the condominium and unit 2 fifty-four percent of the beneficial 

interest.

In 2011, Raspallo began renovations on her unit, which 

included an approximately 111 square foot addition built on 

common area designated for her exclusive use. In order to 

acquire the necessary permits from the town, Raspallo had the 

2 We use the phrase "exclusive use common area" to refer to 

"limited common areas and facilities," as defined by G. L. 

c. 183A, § 1, that are assigned for the exclusive use of a 

single unit.

 
3

condominium developer, Robert David, who was the sole 

condominium trustee, unilaterally appoint Raspallo as the sole 

trustee. Despite the Calvaos' objections, Raspallo obtained the 

permits and completed renovations in 2012. The Calvaos promptly 

filed the present action in Superior Court, both on their own 

behalf and derivatively for the condominium board of trustees.

On motion for summary judgment, the judge determined that 

the master deed prohibited David from appointing Raspallo as 

trustee in 2011 without the Calvaos' consent.3 The judge found 

Raspallo liable for her unilateral actions and ordered the 

parties to have meaningful discussions regarding the appointment 

of a new trustee and the issue of waste and undue hardship 

before the judge determined a remedy. While the parties were 

discussing a resolution the court appointed a mutually agreed 

upon trustee. Ultimately, the parties were unable to reach a 

resolution and at the subsequent remedy hearing the judge 

ordered the removal of the addition. The judge also concluded 

that the master deed limits the use of unit 2 to seasonal 

occupation, enjoined Raspallo from year-round residence, and 

awarded the Calvaos $36,291.53 in attorney's fees.

3 Raspallo now agrees that this ruling was correct and, 

therefore, Raspallo was never a lawful trustee. The Calvaos 

agree that, as a result, Raspallo never owed a duty as trustee, 

and we need not address the Calvaos' breach of fiduciary duty 

claim.

 
4

2. Standard of review. We review the grant of summary 

judgment on liability de novo to decide "whether, viewing the

evidence in the light most favorable to the nonmoving party, all 

material facts have been established and the moving party is 

entitled to a judgment as a matter of law." Karatihy

v. Commonwealth Flats Dev. Corp., 84 Mass. App. Ct. 253, 255 

(2013), quoting from Augat, Inc. v. Liberty Mut. Ins. Co., 410 

Mass. 117, 120 (1991). A decision involving the "imposition of 

equitable remedies" rests with the trial judge and is subject to 

review only for an abuse of discretion. Cavadi v. DeYeso, 458 

Mass. 615, 624 (2011), quoting from Demoulas v. Demoulas, 428 

Mass. 555, 589 (1998).

3. Discussion. a. Condominium addition. Expansion of a 

condominium unit into a common area requires the unanimous 

consent of all condominium owners, regardless of whether the 

master deed purports to allow such an expansion with the consent 

only of the condominium trustees. See G. L. c. 183A, 

§ 5(b)(1);4 Strauss v. Oyster River Condominium Trust, 417 Mass. 

442, 445 (1994). The question presented here is whether this 

4 General Laws c. 183A, § 5(b)(1), as appearing in St. 1998, 

c. 242, § 5, states, "The percentage of the undivided interest 

of each unit owner in the common areas and facilities as 

expressed in the master deed shall not be altered without the 

consent of all unit owners whose percentage of the undivided 

interest is materially affected, expressed in an amendment to 

the master deed duly recorded," with some exceptions not 

relevant here.

 
5

principle applies where the common area in question is dedicated 

pursuant to the master deed for the exclusive use of the 

encroaching owner. If this principle does not apply, Raspallo

could have built her addition with the consent of the trustee 

and, she argues, she should be able to ask the newly appointed

trustee for retroactive approval. We conclude that the 

requirement for unanimous consent applies in this circumstance.

"The condominium is a form of property ownership in which 

the unit owner retains an exclusive fee interest in his 

individual unit in addition to an undivided interest with all 

other unit owners in the condominium's common areas and 

facilities." Golub v. Milpo, Inc., 402 Mass. 397, 400 (1988). 

Raspallo's view would allow condominium trustees unilaterally to 

eliminate an owner's undivided interest in portions of the

common areas, thus negating the essence of condominium 

ownership.

The amendments to G. L. c. 183A, § 5, in 1994, see St. 

1994, c. 365, and 2014, see St. 2014, c. 483, fortify our view. 

These amendments, enacted in response to Kaplan v. Boudreaux, 

410 Mass. 435, 443 (1991), permit the condominium trustees to 

grant any unit owner exclusive use of any portion of the common 

area without the unanimous consent of the unit owners. See 
6

G. L. c. 183A, § 5(b)(2)(ii), 5(c).5 Were we to adopt Raspallo's 

view, the condominium trustees could unilaterally assign common 

area to the exclusive use of a unit owner and then allow that 

unit owner to take fee simple possession of that former common 

area by building on it. See G. L. c. 183A, § 4; Golub, supra. 

Instead, we recognize that a unit owner has legal ownership of 

the common areas, whether or not they are for the exclusive use 

of another unit, and cannot be deprived of that ownership 

without her consent. Regardless of whether there is a practical 

benefit to the legal interest that the Calvaos hold in 

Raspallo's exclusive use common land, Raspallo may not 

unilaterally assert fee simple ownership over it. See Strauss, 

417 Mass. at 445.

As the trustee cannot, as a matter of law, consent to 

Raspallo's expansion, the judge properly exercised his 

discretion to determine the proper remedy for Raspallo's 

unlawful addition. The judge weighed the fact that "Raspallo 

flaunted her obligation to get prior approval of the other unit 

owner," the feasibility of removing the addition for 

"significantly less than" $30,000, and the substantial change 

the addition works to the character of the collective premises. 

5 The 2014 amendment allows condominium trustees to grant 

easements or limitations on the use of common area without 

amending the master deed or site plan. See St. 2014, c. 483.

 
7

We discern no abuse of discretion in the trial judge's 

determination that equities here favored removal of the 

addition. See Calci v. Reitano, 66 Mass. App. Ct. 245, 251-252 

(2006); Brandao v. DoCanto, 80 Mass. App. Ct. 151, 159 (2011).

b. Seasonal use. General Laws c. 183A permits the 

imposition of reasonable restrictions on the use of units, "and 

persons who contemplate acquisition of a condominium unit can

choose whether to buy into those 

restrictions." Woodvale Condominium Trust v. Scheff, 27 Mass. 

App. Ct. 530, 533–534 (1989). See G. L. c. 183A, § 4(1). Here, 

§ 7 of the master deed states that, "except for Unit 1 [the 

Calvaos' unit], which may be occupied on a year round basis, no 

Unit may be occupied between November 30th of one year and March 

15th of the succeeding year, except that Owners may occupy Units 

during said period during weekends, holidays and for customary 

second home recreational use." The seasonal use restriction

unambiguously prohibits Raspallo's year round use. Raspallo 

purchased her unit subject to her compliance with the master 

deed and cannot now claim the right to occupy her unit year 

round. The judge acted within his discretion by enforcing the 

express provisions of the master deed and enjoining Raspallo 

from using her condominium as a year round residence.
8

c. Attorney's fees. The Calvaos brought this suit as a 

derivative action on behalf of the condominium board of 

trustees.6 "A derivative suit is brought where the management of 

an association of condominium unit owners has failed or refused 

to redress a wrong committed against that association. . . . 

The wrong complained of must have been committed against the 

association itself, not the member of the association." Cote

v. Levine, 52 Mass. App. Ct. 435, 439 (2001). The judge found 

that Raspallo's exterior additions "substantially changed the 

inherent structure and character of [Raspallo's] unit and 

transformed the character of the collective premises." We 

discern no clear error in the judge's findings. See Klairmont

v. Gainsboro Rest., Inc., 465 Mass. 165, 183 (2013).

General Laws c. 183A, § 6(a)(ii), provides: "If any 

expense is 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, . . . or by the 

misconduct of any unit owner," the condominium organization may 

assess the expense, including attorney's fees, "exclusively 

against the unit owner." As the Calvaos vindicated the 

6 Raspallo argues that their derivative action does not 

comply with the pleading requirements of Mass.R.Civ.P. 23.1, 365 

Mass. 768 (1974), which requires a verified complaint containing 

certain specified information, but she failed to preserve her 

procedural objection below.

 
9

condominium board's rights and the statute allows the assessment 

of attorney's fees in such matters, the judge acted within his 

broad discretion in assessing fees. See Brady v. Citizens Union 

Sav. Bank, 88 Mass. App. Ct. 416, 420 (2015).

4. Conclusion. The judgment is affirmed. The order 

denying the motion for additional findings of fact, for 

reconsideration, and for amendment of the judgment dated May 3, 

2016, is affirmed.

So ordered.