Condo Media - October 2020 - 33

action has the burden to demonstrate
why the members of the board are
incapable of doing their duty, or the
burden to show that the antagonism
between the governing board and the
association's interests is unmistakable
and that the owner bringing the action
fairly and adequately represents the
interests of the other members. Critically, the wrong complained of in a
derivative suit must be a wrong against
the association and not to an individual owner. Once suit is brought, the
unit owner(s) can seek a court order
to enforce the rules and regulations
of the condominium. Importantly,
when seeking to enforce the rules of a
condominium in a derivative action,
Massachusetts courts have afforded
the unit owner(s) bringing the action
the same rights the condominium
trust has in enforcing the same,
including the right to
collect attorney's fees.
In Calvao v. Raspallo, 92 Mass.App.Ct.
350 (2017), the Massachusetts Appeals
Court held that a unit
owner vindicated in
its request to enforce
the rules of the
condominium may
assess the expenses,
including attorney's
fees, exclusively
against the offending
unit owner as the
condominium trust
would be entitled to
pursuant to M.G.L. c. 183A, § 6(a)(ii).
The Calvao case concerned a two-unit
condominium where one owner built
an additional structure in the condominium's common areas. The other
unit owner brought a derivate action
seeking the removal of this structure.
The lower court and the appeals court
found in favor of the owner bringing
the action and awarded attorney's
fees, because, in bringing the action,
the owner was enforcing the rules and
regulations of the condominium trust.
In the three years since the decision
in Calvao, we have seen lower courts

take similar action. In Griffith et al
v. Walker et al, 17MISC324 (HPS)
(2018), the Massachusetts Land Court
examined a four-unit condominium
where each unit nominated a trustee
and where one of the owners built a
storage shed in the limited common
area adjacent to their unit, despite
their failure to obtain the necessary
three approving votes from the board.
The two disapproving unit owners/
trustees brought a derivative action
seeking an order that the shed be
removed and that they further be
awarded all attorney's fees and costs
associated with bringing that action.
In a twist, on the eve of trial, the
shed building owner/trustee elected
to voluntarily remove the shed and
sought the dismissal of the case. While
the disapproving unit owners/trustees
did not object to the dismissal of the

Derivative actions allow a
non-majority of a condominium's

an insufficient number of trustees
elected, meetings were not being held,
common area fees were not being
paid, and the board was not taking action to collect the unpaid fees, among
other issues. A derivative action was
initiated after the trustees/owners did
not respond to a demand letter. After
a hearing, the superior court issued an
order requiring that the trustees and/
or unit owners: (1) meet and elect five
trustees; (2) establish a budget for the
condominium; (3) take any and all action necessary to collect any outstanding common fees and/or expenses
that are due; (4) remove any and
all debris and/or trash that is in
the condominium's common areas;
(5) remove any obstacles preventing
an owner from using their assigned
parking space; (6) upon the failure of
1-5 occurring, the Plaintiff be named
the sole trustee of the
condominium trust; and
(7) all costs related to
this action be assessed
to the defendants.
These are just a few
examples of how a derivative action can allow
a trustee or unit owner
to force the condominium trust to enforce
the condominium's rules
and regulations. While
these actions are more
common in smaller condominiums, they apply
to large condominiums
as well. Derivative
actions allow a non-majority of a condominium's trustees (or a unit owner)
to act to enforce the condominium's
documents, even when they do not
have the numbers to enforce the
association's rules and regulations.
It gives them all of the power the association would have if the full board
was acting.

trustees (or a unit owner) to act to

enforce the condominium's documents,
even when they do not have the

numbers to enforce the association's
rules and regulations.
case - as their primary objective
(the removal of the shed) was achieved
- they requested that the court award
them all costs and attorney's fees they
incurred in pursuing the claim. In
relying on the appeals court's ruling
in Calvao, the judge awarded approximately $15,000.00 in attorney's fees
and costs to the owners/trustees who
brought the action.
Chin v. Zhang et al, CA 2019CV2007
(J.Giles 2019), concerned a five-unit
condominium that was more or less
acting as five individual homes rather
than a condominium. There was

n NORMAN F. ORBAN, ESQ.
IS AN ASSOCIATE WITH MARCUS,
ERRICO, EMMER & BROOKS, P.C.

October 2020 CONDOMEDIA

Condo Media - October 2020

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