## Facts

- A developer created a 42-unit condominium and recorded the governing master deed, declaration of trust, and bylaws.
- The bylaws authorized the trustees to conduct litigation concerning common areas and facilities, but imposed a condition precedent to suing non–unit owners.
- Before filing such suit, the trustees had to (1) circulate the proposed complaint to all unit owners, (2) set a cap on projected litigation fees and costs, (3) warn that consenting owners would be immediately specially assessed that amount, and (4) obtain written consent of at least 80% of all unit owners within 60 days.
- The trustees sued the developer and related entities and individuals for alleged design and construction defects affecting common areas and facilities, asserting tort and warranty-based claims.
- The trustees filed suit without obtaining written consent from at least 80% of unit owners.
- At the time suit was brought, the developer (or related entities) owned a substantial percentage of units, giving it the ability to block the 80% consent threshold.

## Issues

1. Whether a condominium bylaw requiring written consent of at least 80% of all unit owners before trustees may sue a non–unit owner regarding common areas and facilities is void.
2. Whether the provision is void because it violates the Massachusetts Condominium Act, G. L. c. 183A.
3. Whether the provision is void as against Massachusetts public policy, given its practical effect on the ability to pursue claims for construction defects affecting residential safety and habitability.

## Decision

- The Supreme Judicial Court held the 80% written-consent condition precedent void as against public policy.
- The court declined to decide whether the provision also violated G. L. c. 183A because the public policy ground was sufficient.
- The judgment dismissing the trustees’ complaint for failure to satisfy the consent requirement was vacated.
- The case was remanded for further proceedings on the merits without enforcement of the void consent provision.

## Legal Principles

- Condominium governing documents, though contractual in character, are unenforceable to the extent they contravene public policy.
- A litigation-approval bylaw is void where its practical operation makes enforcement of rights commercially unreasonable or practically impossible, particularly by allowing the alleged wrongdoer to prevent suit.
- Public policy favors meaningful access to legal redress to remedy design and construction defects in common areas and facilities that affect the safety and habitability of condominium homes.
- Not every owner-consent requirement for condominium litigation is invalid; the enforceability inquiry turns on the severity and real-world effect of the restriction, including whether it functions as a veto that insulates a developer from liability.

## Conclusion

The court invalidated an 80% unit-owner consent requirement for trustee litigation against non–unit owners because, in context, it allowed the developer’s retained unit ownership to block suit and effectively immunize the developer from accountability for alleged construction defects affecting common areas and habitability.


Trs. of the Cambridge Point Condo. Tr. v. Cambridge Point, LLC, 478 Mass. 697 (2018)