When a developer fails to add all the phases referred to in the Master Deed, who owns the unphased land when the phasing rights expire? The developer? The unit owners?

In DiBiase Corp. v. Jacobwitz, et al, 43 Mass. App. Ct. 361, 682 NE 2d 1382 (1997), the Court of Appeals clearly states the title to the unphased land is common area and is vested in the existing unit owners as of the date the phasing rights expired. The case concerned Pickman Park Condominium in Salem, MA. 

In 1985, DiBiase subjected the entire 46.2-acre parcel to the Pickman Park Master Deed, reserving phasing rights for seven years. DiBiase could have constructed 268 units but only built 240 units, all of which were duly added to the condo by amendments to the Master Deed. DiBiase in 1993 (just after the phasing rights expired in 1992) sought declaratory relief that (a) it could construct the last two phases and (b) it owned the land upon which the last two phases were to be built. 

The lower court ruled in DiBiase’s favor stating that a site plan of Phase III showing the last two phases never was recorded and therefore title to that land never passed from DiBiase to the condo – see C. 183A, Section 8. 

The Appeals Court disagreed. The Master Deed had a clear, metes and bounds description of the whole 46.20-acre parcel. No site plan was needed to subject the entire parcel to the provisions of the Master Deed. Any argument that title to phased areas only passes from DiBiase to the condo is specious. The Court took note of the fact that no amendments adding subsequent phases contained the words “grant” or “convey”. It seems apparent those words were not needed as the necessary title was already vested in the unit owners.

This is an excellent case regarding expiration of phasing rights and the consequences that flow therefrom.