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16-P-336 Appeals Court
RALF BERGER & others1 vs. 2 WYNDCLIFF, LLC, & others2
(and a companion case3).
No. 16-P-336.
Suffolk. January 4, 2017. - December 5, 2017.
Present: Maldonado, Sacks, & Shin, JJ.
Real Property, Restrictions, Covenant running with the land.
Civil actions commenced in the Land Court Department on
November 1, 2013.
The cases were heard by Robert B. Foster, J., on motions
for summary judgment.
Ellen Rappaport Tanowitz for Ralf Berger & others.
Mark Bobrowski for 2 Wyndcliff, LLC, & others.
1
Melissa Berger, Nijan Datar, Teresa Datar, Kevin Donohoe,
Frank Foley, Mary Ann Foley, Mary Haller, Kathryn Lagunowich,
Mark Lagunowich, Amaro Laria, and Katharine Larsson.
2
Robert H. Batts, Jr., trustee of the Robert H. Batts, Jr.,
family trust; Lexington Holdings, LLC; and water supply district
of Acton.
3
Robert H. Batts, Jr., trustee of the Robert H. Batts, Jr.,
family trust, & another vs. Ralf Berger & others.
2
MALDONADO, J. In this case, we consider whether certain
restrictions on land were legally and effectively amended to
extend the time period of their enforcement or whether they had
expired. The judge concluded the restrictions had expired. For
reasons different from those relied on by the judge, we affirm
the judgment.
Background. On March 26, 1980, in the course of developing
land she owned in Acton, Mabel Jenks McNiff executed an
agreement of "protective covenants and easements" for the
benefit of "future mortgagees, buyers, and owners of the land."
The agreement was recorded, apparently on the same date. McNiff
thereafter sold off lots with the benefits and burdens of the
agreement. The parties are all owners of lots subject to the
agreement.
The agreement expressly provided that the covenants are to
"run with the land" and bind the parties claiming under them
"for a period of thirty (30) years from the date these covenants
are recorded." The covenants limited construction on each lot
to one single-family dwelling, with a two- or three-car garage,
and "such other accessory structures as are commonly used as
appurtenant to a single family dwelling." The agreement
provided that the covenants "may be amended or revoked, in whole
or in part, by an instrument signed by two thirds or more of the
then owners of the lots covered hereby, said amendment or
3
revocation to be effective upon recording thereof at the . . .
Registry of Deeds."
More than two-thirds of the owners of the lots affected by
the agreement amended the agreement in minor ways over the
years, largely to alter the percentage of costs owners were
required to contribute to maintain the roads. On December 7,
2001, more than two thirds of the owners of the affected lots
amended it for a fourth time to provide that the covenants are
to "run with the land and be binding on all of the Lots until
March 26, 2010," i.e., thirty years from the date the original
agreement was recorded. The amendment then provides,
"Thereafter, these Protective Covenants and Easements may be
extended for further periods of not more than twenty (20) years
at a time by owners of record, at the time of recording of the
extension, of two-thirds (2/3) or more of the Lots and also
comprising fifty percent . . . or more of the land area of all
of the Lots, if such extension, duly executed by the aforesaid
Lot owners, is recorded before the expiration of the aforesaid
twenty (20) years or the specified extension term if less than
twenty (20) years."4 On July 18, 2002, an extension of the
agreement was duly recorded.
4
The owners also added a provision prohibiting further
subdivision of any lot in any manner.
4
A group of neighbors commenced an action seeking to enforce
the restrictions against 2 Wyndcliff, LLC, and the trustee of
the Robert H. Batts, Jr., family trust. The latter two entities
commenced their own action seeking a declaration that the
restrictions expired on March 26, 2010. The separate cases have
been treated as companion cases; we refer to the parties using
the same nomenclature the Land Court judge used: the parties
seeking to enforce the restrictions are designated "the
neighbors," and the parties asserting the restrictions have
expired are "the owners." The parties filed cross motions for
summary judgment, and the judge granted the owners' motion. The
judge reasoned that, even assuming that two-thirds of the
neighbors could amend the agreement to provide for extensions of
the period of enforcement, the mechanism the neighbors chose
failed to achieve its desired purpose. He concluded that the
amendment in effect transformed the agreement to one "unlimited
in time" and that, because under G. L. c. 184, § 23,
restrictions unlimited in time expire after thirty years and
cannot be "renewed," the agreement terminated on March 26, 2010.
The neighbors appeal.
Discussion. Restrictions on land are generally disfavored,
and the Legislature has established procedures through G. L.
c. 184, §§ 26-30, "by which a landowner may 'remove or prevent
the enforcement of obsolete, uncertain or unenforceable
5
restrictions.'" Stop & Shop Supermkt. Co. v. Urstadt Biddle
Properties, Inc., 433 Mass. 285, 290 (2001) (Stop & Shop),
quoting from Labounty v. Vickers, 352 Mass 337, 348 (1967). At
the same time, the Legislature has not precluded landowners from
"bargaining for, and enforcing, beneficial land use restrictions
that contain a lengthy, but definite term of duration." Stop &
Shop, supra. "There is no superseding public policy between the
somewhat differing general principles that, on the one hand,
disfavor land use restrictions, and, on the other hand, uphold
contractually bargained for restrictions that permit landowners
to use their land in certain ways." Id. at 292.
One method the Legislature has employed to address these
competing interests is to limit enforcement of restrictions to
thirty years generally and, while freely allowing longer
durations, requiring landowners to comply with certain specific
steps should they desire to impose restrictions lasting more
than thirty years. Id. at 290. Thus, since 1887, where land
use restrictions contained no durational limit, Massachusetts
law has imposed a thirty-year time limitation on them. See
G. L. c. 184, § 23; Stop & Shop, supra at 288; Jones v. Murphy,
60 Mass. App. Ct. 1, 3 (2003).5
5
In addition to durational limitations, the Legislature has
enacted G. L. c. 184, § 30, inserted by St. 1961, c. 448, § 1,
through which landowners may prevent enforcement of restrictions
that are not of "actual and substantial benefit" to a person
6
Even restrictions that contain an express durational
limitation in excess of thirty years may not be enforced for
more than thirty years unless certain steps are taken. It is
undisputed that the restrictions at issue were imposed as part
of a common scheme. General Laws c. 184, § 27, distinguishing
restrictions imposed as part of a common scheme from those that
are not, provides in pertinent part:
"No restriction imposed after December [31, 1961,] shall be
enforceable . . . (b) after thirty years from the
imposition of the restriction, unless (1) the restriction
is imposed as part of a common scheme applicable to four or
more parcels . . . and provision is made in the instrument
or instruments imposing it for extension for further
periods of not more than twenty years at a time by owners
of record, at the time of recording of the extension, of
fifty per cent or more of the restricted area in which the
subject parcel is located, and an extension in accordance
with such provision is recorded before the expiration of
the thirty years or earlier date of termination specified
in the instrument . . . ."
Ibid., inserted by St. 1961, c. 448, § 1.
The neighbors contend that by the fourth amendment, they
brought the agreement into compliance with § 27(b)(1) and that
claiming rights of enforcement. Section 30 contains a
presumption that restrictions in certain circumstances are not
of substantial benefit, but that presumption does not apply to
common scheme restrictions. See St. 1979, c. 307. The statute
does provide criteria for determining whether common scheme
restrictions remain enforceable, however, including, among
others, whether continuation of the restriction would "impede
reasonable use of land for purposes for which it is most
suitable, and would tend to impair the growth of the
neighborhood or municipality in a manner inconsistent with the
public interest or to contribute to deterioration of properties
or to result in decadent or substandard areas or blighted open
areas."
7
they extended the restrictions by filing an extension before the
expiration date contained in the original agreement and the
fourth amendment. The judge assumed, without deciding, that the
neighbors could amend the agreement, which originally did not
provide for extensions, to allow extensions, and went on to
analyze the effectiveness of the fourth amendment. Because we
conclude that pursuant to the terms of the statute, in order to
impose a restriction for more than thirty years, the instrument
originally creating the restriction had to include a provision
for extensions, we need not reach the issue of the effectiveness
of the fourth amendment.
"The statute is to be construed as written, in keeping with
its plain meaning," giving "some effect to each word." Stop &
Shop, supra at 289. The statute expressly specifies that the
provision for extensions must be contained in the original
instrument that created the restriction. Where extension
provisions are not contained in the original instrument, the
statutory scheme does not allow subsequent amendments to add new
provisions for extensions. Here, the original 1980 document
imposing the restrictions set a thirty-year time limit for the
restrictions and allowed for amendments during that term by a
vote of two-thirds of the owners. Everyone in possession or
coming into possession of one of the lots subject to the
agreement after 1980 would be on notice that their property was
8
subject to the control of a vote of two-thirds of the other
common-scheme property owners. However, they also took
possession with the understanding that this control over their
property by a vote of two-thirds of the other property owners
would end in thirty years. In contrast, the amendment at issue
here, if valid, would allow a group of two-thirds of the
property owners (if they also owned fifty percent of the other
common-scheme land) to potentially extend the restrictions
indefinitely by successive twenty-year increments; that is not
what owners agreed to when they bought common-scheme property.
Section 27(b), by limiting the enforceability of a common-scheme
restriction after thirty years only where "provision is made in
the instrument or instruments imposing it for extension for
further periods of not more than twenty years at a time,"
ensures that, after thirty years, no owner is bound by a
restriction unless that owner, whenever he or she bought the lot
in question, expressly agreed to the mechanism by which the
restrictions could be extended. Accordingly, the mechanism for
the extension of the restrictive covenants must explicitly be in
the original document, and cannot be added by a later vote (even
a majority vote) of less than the agreement of one hundred
percent of all property owners in the common scheme.
"[E]xtension is possible only if the creating instrument
provides for it . . . ." Mendler, Massachusetts Conveyancers'
9
Handbook § 15:14, at 378 (4th ed. 2008). Because the amendment
to add a provision for restrictions is unenforceable, we
conclude that the restrictions at issue terminated on March 26,
2010, as provided in the original agreement.
Our conclusion is buttressed by review of the various
statutory provisions applicable to restrictions. The statutory
scheme was enacted on May 10, 1961. St. 1961, c. 448, § 1.
Section 28 applies to restrictions imposed before January 1,
1962, and does not include the requirement that a provision for
extension be made in the instrument or instruments imposing the
restriction.6 However, § 27, which applies to restrictions
imposed after January 1, 1962, does provide that extension be
made in the instrument or instruments imposing the restriction,
putting drafters of restrictions on notice of the necessity to
include a provision for extensions when drafting restrictions
effective after January 1, 1962. Accordingly, when the
restrictions at issue were created in 1980, the requirement that
a provision for extension must be included in the original
instrument should have been clear.
Judgment affirmed.
6
It would have been impossible to do so retroactively, as
those documents had already been drafted and executed.