GSL Decision Alert – Parking Can Be Taxing

Parking

Parking Can Be Taxing

November 26, 2018 – The Massachusetts Appeals Court just issued a decision in Rauseo v. Board of Assessors of Boston, 18-P-288 (Nov. 26, 2018) concerning the taxation of parking space easements retained by the developer of a condominium in Boston. The developer appealed a decision of the Appellate Tax Board that ruled the retained parking easements, which were not appurtenant or associated with any condominium unit, were taxable and did not qualify for the real estate tax exemption provided by M.G.L. c. 183A, §14 afforded to a condominium’s common areas.

M.G.L. c. 183A, §14 states that common areas of a condominium are not subject to real estate taxes, under the theory that common areas are already taxed through the real estate taxes assessed to each of the individual condominium units, which have an undivided percentage interest in the condominium’s common areas. Section 14 prevents the local municipality from ‘double-dipping’ by taxing both the units and the common areas of a condominium. Parking garages and parking spots associated with a condominium are generally defined as common areas, and one would think that they would be disqualified from separate taxation from the local tax board.

In Rauseo, the Court held that the parking easements were taxable because the easements retained by the developer were not associated with any of the condominium units, but rather were easements “in gross”, which simply means they are standalone easements not attached or “appurtenant” to a unit. The developer and the owners that purchased the easements did not pay common area expenses on the parking spaces, nor were the condominium’s common fees applied to the upkeep of the parking easements. The Court reasoned that while the parking easements were physically located in what is part of the limited common areas of the condominium, the easements themselves were reserved by the developer from the property submitted to condominium status under M.G.L. c. 183A. As such, the parking easements were individually taxable by the City of Boston since they were not declared as part of the condominium and not associated with any condominium unit.

The Court acknowledged that all costs incurred by the condominium in connection with these easements were to be borne by the easement holders, given that they are not part of the condominium’s common fees. However, the court did not discuss how these costs are to be collected by the condominium; accordingly, the question of collectability remains open.

This is but the latest in a line of major dispute concerning parking spaces or reserved easement rights in the condominium context. If you have any questions about Rauseo and how it applies to your condominium, or any other condominium matters, please contact Attorney Alex Levine at (781) 251-9800 or via email at levine@goshlaw.com.

 

For a link to the case decision CLICK HERE

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