Berish v. Bornstein, 437 Mass. 252 (2002)

Citation: Berish v. Bornstein, 437 Mass. 252 (2002)
Parent Document: Berish v. Bornstein, 437 Mass. 252 (2002)
Jurisdiction: Massachusetts (state)
Effective Date: 2002-06-28
Original Source: https://www.courtlistener.com/opinion/6578538/berish-v-bornstein/ ↗

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Ownership of a residential condominium involves a form of property ownership different from ownership of a house. “Ownership of a condominium unit is a hybrid form of interest in real estate, entitling the owner to both ‘exclusive ownership and possession of his unit, G. L. c. 183A, § 4, and ... an undivided interest [as tenant in common together with all the other unit owners] in the common areas . . . .’ ” Noble v. Murphy, 34 Mass. App. Ct. 452, 455-456 (1993), quoting Kaplan v. Boudreaux, 410 Mass. 435, 438 (1991).24 “This division between individual and common rights is basic to the theory of condominium ownership.” Golub v. Milpo, Inc., 402 Mass. 397, 401-402 (1988), citing Rohan, The “Model Condominium Code” — A Blueprint for Modernizing Condominium Legislatian, 78 Colum. L. Rev. 587, 587 n.3 (1978), and Schwartz, Condominium: A Hybrid Castle in the Sky, 44 B.U. L. Rev. 137, 139 (1964). “It affords an opportunity to combine the legal benefits of fee simple ownership with the economic advantages *263of joint acquisition and operation of various amenities including recreational facilities, contracted caretaking, and security safeguards” (footnote omitted). Noble v. Murphy, supra at 456. In keeping with this division of property ownership, condominium unit owners cede the management and control of the common areas to the organization of unit owners, which is the only party that may bring litigation relating to the common areas of the condominium development on their behalf. G. L. c. 183A, § 10 (b) (4). See Strauss v. Oyster River Condominium, Trust, 417 Mass. 442, 445 (1994) (“Only the trustees have the right to conduct litigation concerning ‘common areas and facilities’ ”). The division in property ownership, however, does not mean that a condominium unit owner has “relinquishfedj to the condominium association all actions against the developer for failure to deliver what was promised.” Cigal v. Leader Dev. Corp., 408 Mass. 212, 215 (1990). For example, “[njothing in G. L. c. 183A divests the purchaser of a condominium unit of the right to sue in breach of contract.” Id. (“a breach of contract claim has an ‘individual character’ and is the sort of action that we have ruled may be brought or settled only by an individual unit owner”).

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