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Rauseo v. Board of Assessors of Boston

Appeals Court of Massachusetts, Suffolk

November 26, 2018

MICHAEL RAUSEO, trustee, [1]
v.
BOARD OF ASSESSORS OF BOSTON.

          Heard: October 11, 2018.

         Taxation, Appellate Tax Board: appeal to Appeals Court. Condominiums, Master deed, Parking, Common area.

         Appeal from a decision of the Appellate Tax Board.

          Douglas M. Kiernan for the taxpayer.

          Adam Cederbaum, Assistant Corporation Counsel.

          Peter Antell, for Karen Gacicia & another, amici curiae, was present but did not argue.

          Present: Green, C.J., Hanlon, & Maldonado, JJ.

          GREEN, C.J.

         This appeal presents the question whether parking easements reserved by a condominium developer in the documents establishing the condominium, freely alienable and not appurtenant to any condominium unit, are (as the defendant board of assessors contends) subject to taxation as real property, or (as the plaintiff contends) ineligible for such taxation under G. L. c. 183A, § 14, because they are already taxed as part of the condominium common areas. The Appellate Tax Board agreed with the defendant, affirmed the denial of the plaintiff's applications for abatement, and the plaintiff appealed. We affirm.

         Background.

         By condominium master deed dated February 15, 2006, and duly recorded with the Suffolk County registry of deeds, certain land and buildings located at 80 Broad Street in Boston were submitted to the provisions of G. L. c. 183A to form the Folio Boston Condominium (condominium). The condominium contains ninety-nine units, of which ninety-six are residential and three are commercial. As required by G. L. c. 183A, § 8, the master deed included, among other information, the unit designation of each unit; a statement of each unit's location, approximate area, and number of rooms, and the immediate common area to which it has access; and a description of the common areas and facilities and the proportionate interest of each unit therein.

         Section 4(c)(ii)(a) of the master deed describes the "condominium parking area," including the "parking easements" located therein. In particular, the declarant under the master deed "reserves to itself and its successors and assigns and its or their designees, the exclusive right and easement from time to time to sell, convey, lease, rent or license easements for each of the Parking Spaces (the 'Parking Easements;' individually, a 'Parking Easement')." That section further provides that the declarant may sell, lease, or otherwise convey parking easements to unit owners or others, and that the parking easements shall be easements in gross. Parking easement owners also may convey any parking easement(s) they hold to unit owners or to nonunit owners, entirely separate from any interest in a condominium unit. The parking easements themselves are not appurtenant to any unit in the condominium, and do not relate to a designated parking space.[2] The "condominium parking area" is described as located within certain specified limited common areas of the condominium. Section 4(c)(ii)(d) provides that, in the event the condominium is removed from the provisions of G. L. c. 183A, the parking easements will be deemed extinguished, but that the owners of the parking easements will be entitled to any insurance proceeds, eminent domain proceeds, or other financial remuneration obtained upon termination of the condominium and attributable to the parking easements. Parking easement owners bear all risk of loss arising from their easement interest, and they agree to indemnify, defend, and hold the condominium unit owners association harmless against all claims arising therefrom. All expenses associated with the parking easements are borne by parking easement owners and are not charged to condominium unit owners as part of common area expenses. Conversely, parking easement owners make no contribution to common area expenses, other than those attributable to the parking area.

         By letter dated October 22, 2002, the Department of Revenue issued a letter to the defendant, authorizing it to assess separately from condominium units any easements in condominium parking areas that are easements in gross and not appurtenant to any condominium unit. The defendant thereafter apparently began assessing such parking easements as separate property interests; in the present case, at least, the defendant assessed and taxed thirteen parking easements owned by the plaintiff, and the plaintiff filed for abatements. The defendant denied the plaintiff's applications for abatement, and the plaintiff appealed to the Appellate Tax Board, which affirmed the denials.[3]This appeal followed.

         D ...


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