Amendment of By-Laws
On September 25, 1980, the trustees voted to amend the by-laws
of the trust to restrict to
two the number of condominium units which could be owned by any
one person or entity.
The amendment was duly recorded in the registry of deeds.
In adopting the amendment, the trustees acted pursuant to the
applicable by-law and with the
written consent of
condominium unit owners holding 80.45% of the beneficial
interest under the trust.
Ruled that the by-law was valid and not unconstitutional.
Franklin owned 6 units
On the date of the amendment, the plaintiff George J. Franklin,
Jr., owned six units in
the condominium complex.
Purchase additional units
On October 17, 1980, Franklin, as buyer, executed a purchase and
sale agreement with the plaintiffs, Daniel and Florence A.
Clarke, as sellers, for the purchase of a condominium unit owned
by the Clarkes.
Required to inform trustees
As required by the Master Deed, the Clarkes then informed the
trustees of the pending sale so that the trustees might exercise
their right of first refusal.
Trustees said sale was a violation
Thereafter, the trustees notified the Clarkes that the sale was
in violation of the by-law amendment.
Sought declaratory relief
Franklin and the Clarkes then brought this action in the
Superior Court for declaratory relief from the by-law amendment.
Clarkes sold to Franklin
After the action was filed, the Clarkes sold the unit to
Franklin on April 16, 1981.
Deed is null and void
In his judgment upholding the validity of the by-law amendment,
the judge also declared that "the Clarke-Franklin deed . . . is
null and void."
Restraint on Alienation Factors
The one imposing the restraint has some interest in land which
he is seeking to protect by the enforcement of the restraint;
The restraint is limited in duration;
The enforcement of the restraint accomplishes a worthwhile
The type of conveyances prohibited are ones not likely to be
employed to any substantial degree by the one restrained;
The number of persons to whom alienation is prohibited is small
None of these factors is determinative, nor is the list
Each case must be examined in light of all the circumstances.
Court By-Law is sufficient demonstration of reasonableness.
However, we think that consideration of these factors in the
context of the condominium housing arrangement is sufficient to
demonstrate the reasonableness of the restraint here at issue.
We consider the factors seriatim [One after another; in a
Interest in land Analysis
No interpreted to own a specific unit.
So long as they possess an interest in the condominium complex
where the unit is situated.
There is no question here but that the trustees possess such an
Duration of Restraint Analysis
The Pl - did not argue before the trial judge that the restraint
is unreasonable in duration.
The issue as waived.
The amendment is not by its terms limited in duration.
The trust by-laws may be amended at
any time by the trustees, provided they have the
written consent of unit owners "entitled to not less than
fifty-one percent (51%) of the beneficial interest" under the
Might Be Different
Our decision might well be different if, for instance, the
by-laws could not be amended at any time or if the restraint at
issue precluded all alienation of the property or allowed
alienation only to an unreasonably small number of people.
Worthwhile Purpose Analysis
There was no evidence to support the judge's further conclusions
that "[i]mplicit in this purpose is the desire to impart a
degree of continuity of residence, inhibit transiency and
safeguard the value of investment" and that enforcement of rules
and regulations against tenants is more difficult than with
To the extent that the by-law would promote owner occupancy.
We cannot conclude on this record that such an objective is
against public policy or in itself not worthwhile.
We agree with the trial judge
Those who live in condominiums must be willing to give up a
certain degree of personal choice in order to promote the
welfare of the majority of the owners
The by-laws themselves belie [misrepresent] the purpose of the
amendment because the by-laws would not prohibit a person who
owns two units from leasing either or both of them.
The amendment may also be construed
as a compromise between the
desire of the majority of unit owners
to maintain the residential
character of the condominium and the right of a
person owning one or two units to use his property as he
As so construed, the amendment is a reasonable means of
achieving the majority's proper goal.
Type of Conveyance Analysis Prohibited
The conveyance prohibited by the amendment is
not any sale of a unit
but only sale of a unit to a person
who already owns two.
The amendment applies to all unit owners and not just the
We can safely assume that an amendment passed with the consent
of persons holding 80.45% of the beneficial interest under the
trust is not one which would prohibit a conveyance likely to be
employed by those persons.
The plaintiffs have failed to produce any evidence.
Number of Persons Affected
The amendment allows alienation of the property to all persons
except those who already own two units.
The amendment is unreasonable because it has been applied
against Franklin in an arbitrary and discriminatory manner.
It has not been applied against Franklin at all.
The plaintiffs have made no showing that the amendment has not
been or would not be applied to void sales to others in a
position similar to Franklin.
The Constitutional Challenges
The amendment has denied them equal
protection of the laws and
due process of law under the Fourteenth
Amendment to the United States Constitution and arts.
1 and 10 of the Massachusetts Declaration of Rights.
Franklin has been "effectively denied his right to own
property," and that both Franklin and the Clarkes have been
denied "their constitutional rights to dispose of their property
as they see fit.
The judge found that there was no
State action sufficient to trigger the constitutional guarantees
Because we conclude that the amendment did not deprive the
plaintiffs of any constitutional rights, we may assume, without
deciding, that the amendment represents State action.
Since the plaintiffs' decisions to purchase units within the
condominium were no doubt voluntary, any restrictions imposed on
the plaintiffs' rights to buy or sell property within the
condominium are, for this reason, essentially self-imposed.
Accordingly, we hold that, "[i]f a [by-law amendment] serves a
legitimate purpose, and if the means the [condominium
association] adopted are rationally related to the achievement
of that purpose, the [amendment] will withstand constitutional