acknowledging the unit owner’s “dual form of interest in real estate, entitling the owner both to exclusive ownership and possession of his unit and to an undivided interest together with other unit owners in the common areas”
How later courts described this case
- acknowledging the unit owner’s “dual form of interest in real estate, entitling the owner both to exclusive ownership and possession of his unit and to an undivided interest together with other unit owners in the common areas”
- allowing unit owner to sue condominium trust over noisy air conditioner in common area as private nuisance, treating unit and common area as adjacent parcels of land
- statements concerning "matters of judgment" or "value" are not actionable for misrepresentation
- allowing unit owner to sue association over noisy air conditioner in common area as private nuisance
Written by the judges who cited it.
The opinion
Kass, J.
(concurring in part, dissenting in part). I concur with part 2 of the opinion, having to do with the obligation of a unit owners’ association of a condominium to abate a nuisance under its control. For that reason I also concur with part 3 of the opinion. I differ, however, with the opinion of the majority that the complaint states a claim for which relief may be granted against Brenda Marsh, the broker who showed the plaintiff unit 312 in the Brook House Condominium, the apartment that he bought, and Marsh’s principal, Chestnut Hill Realty Corporation. 1
It is so well understood that a complaint will be read with utmost generosity in favor of the pleader 2 that one may say, *580 with but a touch of hyperbole, that a motion to dismiss under Mass.R.Civ.P. 12(b) (6), 365 Mass. 755 (1974), lies only when the plaintiff has somehow managed within the four corners of the complaint to plead himself out of court. McEneaney, the plaintiff, has accomplished that master stroke. His grievance is that the broker misrepresented facts she knew or should have known when in August, 1987, she said that unit 312 was quiet. Yet attached to McEneaney’s complaint as an exhibit is a letter from him, dated August, 1990, to the trustees of the Brook House unit owners’ association saying:
“As you are aware, the engine running the air conditioning in C-Building has recently been renovated. From the information I have gathered, the horsepower of the engine has been increased. Whatever the technical reason, there is now a vibration coming through the southwest side of C-Building which is intolerable. At night, probably as a result of increased usage of air conditioning units, the sound and vibrations become increasingly louder.”
Thus, in his complaint, McEneaney has told us that for three years his apartment was quiet, as the alleged representation of the broker had characterized it, and that only changes in the equipment and a souping up of its horsepower three years later in the summer of 1990 have caused it to be noisy. McEneaney’s recitation of the recent equipment changes and resulting noise states specific facts that negate the contrived, nonspecific assertion in count I of the complaint that,
“[u]pon information and belief, Chestnut Hill and Marsh knew their representations as to the non-existence of notice in Unit 312 were false at the time such representations were made and that they could not be relied upon.”
The same kind of foot-in-the-door but nonparticularized allegation was made in count II:
*581 “Based upon the facts as set forth above, Chestnut Hill and Marsh misrepresented the nature of the noise level in Unit 312 to Mr. McEneaney.”
That McEneaney alleges the broker “knew or should have known that there had been a historical noise and vibration problem in the . . . area of . . . Unit 312,” does not, it seems to me, advance his cause. Such a history would not alter the state of unit 312 in August, 1987, namely, quiet, and does not permit logically the inference that the broker ought to have known that the apartment would be noisy in the future. 3 The stretch that such an inference would involve is best illustrated by the unit’s being quiet for the next three years after sale.
As the trial judge wrote in his memorandum of decision allowing the broker’s motion to dismiss, “McEneaney has failed to allege facts that would challenge the contemporaneous truth of Ms. Marsh’s representations.” The claim against the broker is representative of a “round up all the usual suspects and let’s see what we can shake out of them” approach to litigation. See Caron v. General Motors Corp., 37 Mass. App. Ct. 744, 756 (Brown, J., concurring). We should not allow ourselves to be seduced by it. Routinely, at bar associations and like public occasions, judges lament the high tide of litigation. Then we invite into the courts for further exploration cases that offend common sense. As Walt Kelly once had Pogo say, “We have met the enemy and they is us.”
For purposes of convenience, I shall refer to Marsh and Chestnut Hill Realty Corporation collectively as “the broker.”
See, e.g., Charbonnier v. Amico, 367 Mass. 146, 152-153 (1975); Druker v. Roland Wm. Jutras Assocs., 370 Mass. 383, 385 (1976); Balsavich v. Local Union 170, Intl. Bhd. of Teamsters, 371 Mass. 283 (1976); Nader v. Citron, 372 Mass. 96, 98 (1977); Wrightson v. Spaulding, 20 Mass. App. Ct. 70, 71-72 (1985); U.S. Funding, Inc. of Am. v. Bank of Boston Corp., 28 Mass. App. Ct. 404, 406 (1990).
Indeed, there is an element of self-contradiction in the complaint. That pleading was filed May 17, 1983. To avoid being barred by the three-year statute of limitations for tort claims, the plaintiff must say the noisy condition first came to his attention no earlier than June, 1990. Yet the broker is supposed to have known in July and August of 1987 that unit 312 would become noisy three years later.