Usually not on your own. When a condo neighbor builds into the common area, the claim belongs to the condominium trust or association, and a unit owner who sues must bring the trust into the case. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.
What happened
The plaintiff owned a unit in a seven unit condominium. The defendants owned another unit. The plaintiff claimed the defendants built an addition that extended into a common area without the unanimous consent of all owners, in violation of the condominium deed and bylaws. She sued the defendants directly for a declaratory judgment, but she did not name the condominium trust. A Superior Court judge dismissed the complaint, and the plaintiff appealed.
What the court decided
In Hyman v. Conway, No. 24-P-168 (Mass. App. Ct. March 18, 2025) (Rule 23.0 decision), the Appeals Court affirmed the dismissal.
The court started with the condominium statute. G.L. c. 183A, § 10(b)(4) gives the organization of unit owners the power to conduct litigation about the common areas and about enforcing the bylaws and master deed restrictions. The Supreme Judicial Court has held that this authority is exclusive when the problem is in the common areas. Trustees of Cambridge Point Condominium Trust v. Cambridge Point, LLC, 478 Mass. 697 (2018). Suits by individual owners one at a time would undercut that system, because the association acts for all owners together. Cigal v. Leader Dev. Corp., 408 Mass. 212 (1990).
There is a path for an individual owner. When the association’s management fails or refuses to fix a wrong done to the association, an owner may bring a derivative action on the association’s behalf. Cote v. Levine, 52 Mass. App. Ct. 435 (2001). But in a derivative case, the association must be a party, because the claim is really the association’s claim. Here, expanding a unit onto the common elements was that kind of claim.
The plaintiff relied on an earlier case involving a two unit condominium. The court said joinder was never raised there, all owners were already parties, and the defendant was the sole trustee. That case did not help her.
The defendants had argued in their motion that the trust was a necessary party. The plaintiff did not move in time to amend her complaint to add the trust or its trustees. So the court found no error. The court also noted that the dismissal was without prejudice to the extent it rested on failure to join a necessary party. Under Mass. R. Civ. P. 41(b)(3), a dismissal for failure to join a party is not a ruling on the merits.
The court also upheld the denial of the plaintiff’s motion to disqualify the defendants’ lawyer, which became moot once the case was dismissed, and the denial of her motion for reconsideration, which mostly repeated earlier arguments.
What this means for you
If you own a condo and a neighbor takes over a hallway, yard, deck or other common area, your first stop is the board of trustees. The trust has the exclusive right to bring litigation over common area problems. If the board will not act, you may be able to bring a derivative claim. But you must follow the rules for that kind of case, and you must name the trust or association as a party.
The trap here is simple. When the other side points out a missing party, fix it quickly. The court noted that the plaintiff never moved in time to amend and add the trust. Because the dismissal was without prejudice on that ground, the plaintiff was not shut out for good. The court also left open a separate argument that she might not fairly represent the other owners in a derivative case.
This decision is about claims over the common areas. Claims about your own unit may be treated differently, so sorting out which claims belong to whom is often the first legal question.
What to do now
- Read your master deed, declaration of trust and bylaws. Look for what counts as common area and what consent is required for changes.
- Write to the board of trustees, describe the problem, and ask them to act. Keep a copy.
- Gather photos, plans and permits that show what was built and where.
- If the board refuses or does not answer, get legal advice about a derivative claim and who must be named.
- If the other side says a party is missing, address it right away by asking to amend.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. These cases move on short deadlines.
