Can Master Deed Violate Approved Site Plan?

Visitor Question: The site plan approved by the city for our condominium does not match the site plan filed with the registry of deeds with respect to parking. The site plan approved by the city includes one parking spot which is explicitly prohibited by deed restrictions filed with the registry. The site plan filed with registry of deeds has a different configuration for the parking that was not approved by the city and for which it is not possible to park, e.g. developer committed fraud by creating one parking spot that is not usable.

We now have situation where one unit owner is claiming the spot that doesn't exist (based on site plan filed with registry), demanding Association assigns parking spot and threatening litigation.

What takes precedence here, the city approved plan or that filed with the registry of deeds. To me, it seems the developer committed fraud. Is there any case law that is relevant here? Can Association assign a spot knowing spot really doesn't exist?

Editors Reply: This question is representative of several similar questions, so we will make some general observations about this situation. For a precise answer, this visitor would need to work with the city, the city attorney, and probably a private attorney.

Let's look first at the city's actions, and some lessons for them. The first question is the nature of the city's "approval" of the site plan. Was this actually a legal approval, referenced in an ordinance, or does our visitor simply refer to a site plan that was used in a public meeting but not part of any official submittal.

Unfortunately developer deception, by way of showing pretty pictures that are not tied to official approval, is rampant. So ask the city if the site plan was actually part of the city's approval. If so, ask the city to enforce its law by forcing the develop to provide the designated parking. No doubt that would not be an easy process for the city, but if their legally approved site plan is being violated, they should be actively involved in enforcement.

This is why we recommend a conversation with the city attorney.

If the city says, no, that was just something that the developer showed at a city meeting, but we have no way of enforcing it, then you have to work at the level of a private legal action.

The lesson for city leaders is that if you are approving a site plan for a condominium or other development that includes a homeowners association, you need to require submittal of the covenants in advance of the approval process. Then the city review should have noticed that the master deed prohibited something that our visitor says is required by the city's approved site plan.

Now let's look at what residents can or should do in this situation. We sympathize somewhat with the resident who wants to force the homeowners association to supply a parking space. The advice of a private attorney who is dealing with the facts on the ground in this specific case should be relied upon in this regard.

At a broader level, though, the association's board of directors needs to look at resolving this discrepancy once and for all. Yes, it is possible that the developer committed some type of fraud here, if he or she received a city approval of a specific site plan and then turned around and filed a different site plan and deed restrictions negating the city's approved plan. The city's failure to be as vigilant as it should have been may not excuse the developer's actions.

The association's board also needs to be in conversation with the city's attorney and planner or planning consultant about what is possible and desirable at this point. Providing that the city legally approves a site plan in that zoning district, or under a separate site plan approval ordinance, would the city be likely to approve the as-built site plan where there is no designated parking space?

If so, maybe the city should go back and approve the realistic plan of what is possible on the ground. If those who predict city council actions (including actual current city council members) say they never would have approved it without the designated parking spaces, that is an even stronger argument for getting the city to join the homeowners association in litigation or enforcement actions against the developer.

Individual residents need to be interested in seeing this discrepancy resolved. A resolution not only would clarify their personal parking situation, but also would help prevent the rumor mill from exaggerating the problem and discouraging future condo sales.

So without knowing and seeing all the details, and because we are not attorneys, we can just urge that situations such as this one not be perpetuated by inaction. Insist that your city help you figure out viable ways forward when deed restrictions prohibit the amenities required by a city-approved site plan.

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