By Saul J. Feldman, Esq. and Angel K. Mozina, Esq.

In this article, we want to clarify that in Massachusetts phases in a condominium cannot be created on vacant land. We believe that little, if anything, has been written about this important subject.

Chapter 183A, the Massachusetts condominium statute, is a first-generation statute. Things that are not specifically prohibited are allowed. A “unit” is defined as “part of the condominium including one or more rooms, with appurtenant areas such as balconies, terraces and storage lockers if any are stipulated in the master deed as being owned by the unit owner, occupying one or more floors or a part or parts thereof, including the enclosed space therein, intended for any type of use, and with a direct exit to a street or way or to a common area leading to a street or way.”

The concept of phasing is mentioned only once — in Section 5(b)(1). Both developers and lenders often are willing to develop and lend on an incremental basis. It is therefore surprising that Chapter 183A does not cover phasing in more detail.

Unfortunately, under Chapter 183A, a phase cannot consist merely of vacant land. There must be a structure on the land. The way this is usually accomplished is by putting a construction trailer on the land to be phased. Sometimes, the land to be phased already has an existing structure such as a shed or a foot locker. Later on, the trailer or other structure can be removed and replaced with the buildings. The entire site is shown on the condominium site plan recorded with the Master Deed. Phase I is shown with a construction trailer or other structure. Unit 1 in Phase 1 is the trailer.

The Site Plan will show the three-dimensional footage of the trailer or similar structure. The Master Deed will describe the trailer. The Master Deed will allow the Declarant to unilaterally amend the Master Deed in order to remove the trailer and add the actual building(s) on Phase 1 once the construction is completed and an as built plan may be prepared showing the building(s) that will replace the trailer or other pre-existing structure.

Under the Uniform Condominium Act (“UCA”), which has been adopted in many states (but not Massachusetts), a subdivision of condominium units may consist merely of unimproved lots and the airspace above them. The UCA is a second-generation condominium statute. Specifically, the use of a subdivision consisting merely of unimproved lots is described in Item 11 in the Comment to Section 2-101 of the UCA: “nothing in the Act would require any residence to be built before the lots could be treated as units.” We believe it is time Massachusetts adopted the UCA standard on phased condominiums. It would allow for faster phasing timelines with fewer legal and other logistical expenses for busy and cost-conscious developers.

Finally, we must note that many surveyors do not have any familiarity whatsoever in using a trailer or other structures. This really holds up the entire process. It is important that surveyors get up to speed on the concept of using a trailer. If surveyors knew more about the use of a trailer, the job of attorneys like us who draft condominiums in Massachusetts would become less stressful, and, more important for our clients, less costly!

© 2017 Feldman & Kozeli