Heard: October 11, 2018.
Appellate Tax Board: appeal to Appeals Court. Condominiums,
Master deed, Parking, Common area.
from a decision of the Appellate Tax Board.
Douglas M. Kiernan for the taxpayer.
Cederbaum, Assistant Corporation Counsel.
Antell, for Karen Gacicia & another, amici curiae, was
present but did not argue.
Present: Green, C.J., Hanlon, & Maldonado, JJ.
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.
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.
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. 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.
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.This appeal followed.