A Massachusetts owner cannot sue over common area without joining the condominium trust
A Massachusetts owner cannot sue over common area without joining the condominium trust
2026-09-10 · Massachusetts · Courts
What happened. The Massachusetts Appeals Court affirmed the dismissal of a unit owner's suit over a neighbour's common-area encroachment, holding she had no standing to sue directly about common areas — and that construed as a derivative claim, the action failed because the condominium trust is an indispensable party she never joined.
Hyman v. Conway, docket 24-P-168, reported at 105 Mass. App. Ct. 1118, was decided 18 March 2025 as a Rule 23.0 memorandum and order.1
The facts
Westport Point Condominium is a seven-unit cottage-style community. The Conways built an addition on their unit that extended into common area, allegedly without the unanimous unit-owner consent required. A fellow owner sued them directly.
The statutory basis
M.G.L. c. 183A §10(b)(4) vests the organization of unit owners with authority to conduct litigation concerning the common areas. The court's rationale was structural: allowing individual owners to sue directly over common areas would
“frustrate the statutory scheme, in which the association acts as the representative of all owners in common.”
The derivative route, and its condition
Derivative actions remain available where management refuses to act. But the court was explicit about what that requires:
“the association must be joined as a party because the claim is alleged to be one that the association should be pursuing.”
Dismissal was affirmed, as was the denial of reconsideration. The court applied Mass. R. Civ. P. 12(b)(6), 19 and 60(b), with Rule 23.1 framing the analysis below.
Why this trap keeps catching people
The owner who notices an encroachment is almost never the association. It is the neighbour who can see it from their window, who raises it with a board that does not want a fight with another owner, and who eventually hires counsel of their own. Suing the encroaching neighbour is the intuitive move. It is also, in Massachusetts, the move that gets the case dismissed.
What an owner in this position should actually do
The sequence matters, and each step builds the record for the next.
First, put it to the board in writing. A dated written demand identifying the encroachment, the provision of the master deed or c. 183A it violates, and what the owner asks the association to do. This is the document that establishes the association was asked and what it said.
Second, give the board a real opportunity to act. A derivative claim rests on the proposition that management refused to act. A board that is still investigating has not refused.
Third, if the association will not act, sue derivatively and name the trust. As a defendant, if necessary — the point is that the trust is before the court, because the claim belongs to it. Omitting it is what killed Hyman.
An owner who has already filed a direct suit is not necessarily finished. Whether an amendment can cure the defect is a question about that case's posture and timing, and it is exactly the sort of question where the answer turns on facts we do not have. What can be said is that the defect is jurisdictional in character rather than cosmetic, and it does not go away by being ignored.
What it means for a board
This decision hands boards a procedural advantage, and it is worth being honest that boards can misuse it.
An association that declines to act on a common-area encroachment is not merely leaving the complaining owner to their own devices. It is placing itself between that owner and any remedy — because the claim is the association's, and the owner cannot pursue it alone. The board's discretion here is real, but so is the fiduciary duty that attaches to exercising it.
Three practical points:
- Answer a written demand in writing. A board that responds with a reasoned decision — even a decision not to act — is in a defensible position. A board that does not respond has created the record for a derivative claim.
- Minute the deliberation. Why the board decided as it did, what it considered, and whether any trustee had a conflict.
- Watch the conflict problem. The encroaching owner is frequently a trustee, or related to one. A board deciding whether to sue one of its own members should think about who is voting and what the minutes will look like later.
The related question of who trust counsel represents
A Suffolk-area Superior Court decision from this year, noted by counsel in March 2026, held that trust counsel represents the organization of unit owners as a whole, not individual trustees — and that a trustee who was the plaintiff in a derivative action could be excluded from litigation-related communications. The case name and docket were not available, so it is reported here as an unnamed decision rather than as citable authority.
Read alongside Hyman, the picture is coherent: the association is the party, the association's lawyer acts for the association, and an individual owner or trustee who wants to litigate on the association's behalf is in a derivative posture with all the formality that implies.
What to watch next
Whether an owner-side challenge reaches the question of what happens when a board's refusal to act is itself the alleged breach. Hyman answers who must be in the case. It does not answer how much deference a board's refusal gets once the association is properly before the court — and that, not standing, is where the real fights over common-area enforcement are heading.
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