Drummer Boy Homes Association vs. Carolyn and Randy Britton (Massachusetts)
The Brittons, unit owners in the Drummer Boy Green Condominium II, withheld payment of monthly condominium fees due and owing to protest fines that the Drummer Boy Condominium Association, Inc. had previously assessed. The Brittons, as of this date, have withheld payment of approximately eight years' worth of monthly assessments.
On July 31, 2007, the Association instituted a collection action against the Brittons to establish and enforce a six-month priority lien for common expenses due and owing. On January 28, 2008, the Association instituted a second collection action to establish and enforce a six-month priority lien for those common expense due and owing in the six-month period subsequent to the filing of the first collection action On September 30, 2008, the Association instituted a third collection action to establish and enforce a six-month priority lien for those common expenses due and owing in the six month period subsequent to the filing of the second action. The Trial Court consolidated these three actions for determination. As the delinquency continued, the Association filed successive complaints in order to establish successive priority liens for the Britton's continued non-payment of monthly condominium expenses. Those actions have been stayed.
The Trial Court entered Judgement for the Association finding common expenses due and owing, and establishing that the Association has a lien for the entire amount of the delinquency, but that only a single, six-month period of that delinquency immediately preceding the filing of the first action has priority over the first mortgage holder. The Trial Court declined to award the Association attorney's fees incurred in connection with the filing of the second and third collection actions. The Appellate Division of the District Court affirmed the Decision & Order of the Trial Court. The parties when appealed the Appellate Division's Decision and Order t the Massachusetts Appeals Court.
The Appeals Court rejected the Associations argument that by filing successive lawsuits, the law permits it to establish multiple priority liens, ahead of the first mortgage, for multiple six-month periods of unpaid assessments. The Appeals Court concluded that: it is up for the Legislature, and not for this court, to decide whether to expand priority status for common expense assessments beyond a single six-month period preceding the filing of an action.
The Appeals Court's decision conflicts with and rejects the more than twenty years of practice and jurisprudence that followed the legislature's adoption of the priority lien provisions in 1992, as reflected in thousands of trial court decisions, and the Appeals Court's decisions significantly undermines the ability of condominium associations to collect unpaid common expense assessments.
Brief: CAI's Amicus Brief
Prior Ruling: Appellate Court Decision
Status: Supreme Judicial Court Ruling for CAI's Position
CAI Amicus Brief Author: PERKINS & ANCTIL, P.C.
CAI Amicus Brief Review Committee: Patrick Costello, Esq: Robert Diamond, Esq; Brendan Hunter, Esq; Richard Kennedy, Esq; Russell Robbins, Esq.