Background
Niklaus and Lily Kim Brink and Barbara Hunt co-owned units in a two-unit condominium governed by a declaration of trust, with both Niklaus and Hunt serving as co-trustees. In 2010, Hunt filed suit against Niklaus, which culminated in a 2012 Superior Court judgment establishing the boundaries between the parties’ exclusive-use areas in the backyard using a surveyor’s site plan (the Kelley plan) and recognizing Niklaus’s implied easement over Hunt’s exclusive-use areas to access a shared garage. In connection with the 2012 proceedings, the parties also voluntarily signed two agreements under oath before the trial judge—a Grounds Keeping Schedule governing yard maintenance and a Proposal for Operating Procedures governing communications between the parties.
Starting in 2016, Hunt unilaterally declared the agreements terminated and stopped complying with them. Her conduct became increasingly hostile: she failed to clear snow, destroyed vegetation the Brinks planted, cut flowers from the common flower bed and deposited the debris in the Brinks’ walkway, sent harassing and derogatory letters with false criminal allegations, and erected a four-foot locked fence in the front yard that the trial judge found was common area. In 2021, the Brinks filed this action in Superior Court seeking Hunt’s removal as co-trustee, injunctive relief, and attorney’s fees. After a bench trial, the judge issued a detailed written decision removing Hunt as co-trustee, rejecting her counterclaim that Niklaus had misappropriated insurance proceeds used to repair a collapsed chimney, declining to terminate the Brinks’ implied easement, and awarding Niklaus attorney’s fees under Section 5.24 of the declaration of trust.
The Court’s Holding
Affirmed; appeal found frivolous. The Appeals Court upheld each ground of the fiduciary duty finding. On the agreements: Hunt argued they were unenforceable because they were not recorded at the registry of deeds and she had not signed them. The court rejected both arguments. Agreements that do not affect ownership interests need not be recorded, and Hunt cited no authority to the contrary. As to execution, the trial judge in the earlier proceeding had asked whether the parties signed the agreements freely and intended to be bound—and all parties, including Hunt, confirmed this under oath. Hunt had not shown that factual finding to be clearly erroneous, and the Brinks’ trial testimony confirmed it.
On the front-yard fence: the judge found the front yard was common area based on the Kelley plan, the parties’ years of treating it as common area, and Hunt’s own admission in prior litigation. The court rejected Hunt’s contention that the judge was required to credit her expert’s testimony that the front yard was divided into exclusive-use areas. Expert testimony is not conclusive even when uncontradicted, see Matter of J.D., 97 Mass. App. Ct. 15, 21 (2020), and in any event the expert agreed on cross-examination that the Kelley plan was susceptible to a common-area interpretation. Hunt’s claim that issue preclusion barred the front-yard finding failed because the status of the front yard had not been litigated in the 2012 action; and her fence was not constructed until 2018, which also defeated any claim preclusion argument.
The court affirmed dismissal of the chimney counterclaim: the declaration of trust did not require restoration of the chimney to its original condition; the provisions Hunt cited required only that the trust maintain casualty insurance and obtain annual appraisals of replacement value. The attorney’s fees award under Section 5.24 was proper because Niklaus, as co-trustee, initiated the action to enforce Hunt’s maintenance obligations and to rectify her improper fence on common area—plainly within the scope of a provision authorizing fees when the trustees must engage counsel to enforce provisions of the declaration of trust. Finally, the court found the entire appeal frivolous and directed the Brinks to submit a petition for appellate attorney’s fees within fourteen days.
Key Takeaways
- A condominium co-trustee may be removed for breach of fiduciary duty based on a sustained pattern of noncompliance with operative maintenance agreements, unilateral encroachment on common areas, and ongoing hostile conduct toward fellow unit owners—the misconduct need not rise to financial fraud or misappropriation.
- An agreement between condominium co-owners is binding and enforceable if signed voluntarily and acknowledged under oath before a court, even if not recorded at the registry of deeds and not incorporated into the final judgment.
- Issue preclusion bars relitigating the existence of an easement established and affirmed in prior proceedings; a party must identify a changed circumstance not addressed in the earlier case to seek termination of a judicially recognized easement.
- A trial court is not required to accept uncontradicted expert opinion; the judge may reject an expert’s interpretation if the evidence—including the expert’s own cross-examination admissions—supports a different conclusion. Matter of J.D., 97 Mass. App. Ct. at 21.
- A declaration of trust fee-shifting provision authorizing fees for trustees who “enforc[e] . . . any provision of . . . the Declaration of Trust” covers enforcement actions brought by one co-trustee against another, including breach-of-fiduciary-duty claims seeking removal and injunctive relief.
- The Massachusetts Appeals Court may award appellate attorney’s fees where the appeal is frivolous, under Fabre v. Walton, 441 Mass. 9 (2004), particularly when most issues were waived by inadequate briefing.
Why It Matters
For condominium trust practitioners, Brink v. Hunt confirms that removal of a co-trustee is available as a remedy for a course of bad-faith, obstructive conduct, and that the standard of proof does not require proving financial wrongdoing. The case is also a useful reference for the enforceability of informal agreements: a signed agreement acknowledged under oath before a judge creates a binding obligation even without recordation or court-order incorporation. Practitioners advising condominium boards or unit-owner co-trustees on governance disputes should document compliance and noncompliance carefully—a pattern of petty misconduct, accumulated over years, can form the basis for removal.
The attorney’s fees holding expands the practical utility of trust declaration fee-shifting clauses. Where the declaration authorizes fee recovery for “enforcing” trust obligations, a co-trustee plaintiff who prevails on a breach-of-fiduciary-duty claim may recover fees—not just a management company or a third-party trustee bringing an assessment action. The frivolous-appeal finding and award of appellate fees sends a pointed message to litigants who press arguments that are waived or foreclosed by prior judgments.