MISC 277691

July 1, 2008


Long, J.



This case involves the construction of two above-ground swimming pools on the properties of defendants Robert and Susan Stephens and Robert and Elizabeth Vanzandt on South Washington Street in Belchertown. Plaintiffs Michael and Diane Madore and Frederick and Agnes Robarge live on South Washington Street as well. All of the parties’ deeds, the plaintiffs’ and defendants’ alike, include an explicit prohibition of above-ground swimming pools. However, none of the deeds identify the property or party that benefits from the prohibition. Nor do the deeds state who may enforce such restrictions.

This case thus presents a simple dispositive issue – may the plaintiffs enforce the above-ground swimming pool restrictions against the defendants or not? If yes, the swimming pools must go. If not, this case must be dismissed, with prejudice. The answer depends upon the interpretation and application of G.L. c. 184, § 27, which supplants the common law rule that a benefiting party can be identified by inference from “the situation of the property and the surrounding circumstances,” and replaced it with a stricter requirement that deeds must expressly state the party or property that benefits from a restriction. Brear v. Fagan, 447 Mass. 68 , 71-73 (2006). The plaintiffs contend that the properties involved constitute a common scheme and, pursuant to G.L. C.184, § 26(5), this court may presume that the owners of property in that common scheme may enforce restrictions against any other owner.

The plaintiffs have moved for summary judgment. For the reasons set forth below, I DENY that motion and enter judgment for the defendants.

The Summary Judgment Standard

Summary judgment, governed by Mass. R. Civ. P. 56, is appropriately entered when (1) there are no genuine issues of material fact, and (2) the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Cassesso v. Comm'r of Corr., 390 Mass. 419 , 422 (1983), Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976). Here, the asserted facts are straightforward and undisputed, and the disposition of the case turns on the proper interpretation of G.L. c. 184, §§ 26 and 27.

The Standard for Judicial Interpretation of a Statute

The interpretation of statutes is a question of law for the court. Bell Atl. Mobile of Mass. Corp. v. Comm’r of Revenue, 451 Mass. 280 , 283 (2008). “Where the language of a statute is clear and unambiguous, it is conclusive as to legislative intent, and the courts enforce the statute according to its plain wording, which we are constrained to follow as long as its application would not lead to an absurd result.” Martha’s Vineyard Land Bank Comm’n v. Bd. of Assessors of West Tisbury, 62 Mass. App. Ct. 25 , 27-28 (2004) (internal quotations and citations omitted). Where ambiguities exist in the language, a statute is to be interpreted according to “the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.” Moloney v. Boston Five Cents Savings Bank, FSB, 422 Mass. 431 , 433 (1996). The language of the provision at issue is to be construed “in association with other statutory language and the general statutory plan.” Sperounes v. Farese, 449 Mass. 800 , 804 (2007). “Where two or more statutes relate to the same subject matter, they should be construed together so as to constitute a harmonious whole consistent with the legislative purpose.” Id.


The following facts are undisputed. Thomas F. Spellman and Noel S. Hamel were the original owners of a plot of land located on South Washington Street in Belchertown. In 1967, Mr. Spellman and Mr. Hamel recorded a survey plan dividing the property into ten lots and then conveyed each of them to various individuals. [Note 1] Each of the deeds contained a series of restrictive covenants, including the restriction at issue in this case: a prohibition of above-ground swimming pools. [Note 2] The parties are successors to these original grantees, and each of their deeds contains the restriction. [Note 3]


As there are no factual disputes between the parties, the sole issue in this case is whether the plaintiffs can enforce the defendants’ deed restrictions prohibiting above-ground swimming pools. Restrictions on land are enforceable only if, “at the time of the proceeding, [they are] of actual and substantial benefit to a person claiming rights of enforcement,” G.L. c. 184, § 30, and if that person has such rights. At common law, if a deed was silent or ambiguous, a court could infer from all the circumstances the benefiting parties who could enforce a restriction. Brear v. Fagan, 447 Mass. 68 , 71 (2006). However, this common law rule is no longer in effect in Massachusetts since the enactment of G.L. c. 184, § 27 in 1961. G.L. c. 184, § 27(a) states that

[n]o restriction imposed after December [31, 1961] shall be enforceable . . . unless the person seeking enforcement (1) is a party to the instrument imposing the restriction and it is stated to be for his benefit or is entitled to such benefit as a successor to such party, or (2) is an owner of an interest in benefited land which either adjoins the subject parcel at the time enforcement is sought or is described in the instrument imposing the restriction and is stated therein to be benefited . . .

In Brear v. Fagan, the Supreme Judicial Court found that this section supplanted the common law rule with a stricter requirement that instruments must contain the express identification of the parties or properties to be benefited by a restriction. 447 Mass. at 72-74. As the court held, “owners of land must meet the requirement that the benefited property be ‘described in the instrument imposing the restriction’ and be ‘stated therein to be benefited.’” Id. at 73 (emphasis in original).

The purpose of this new requirement was to allow landowners to “remove or prevent enforcement of obsolete, uncertain or unreasonable restrictions.” Id. at 73-74 (citing Thirty-Sixth Report of the Judicial Council, Pub. Doc. No. 144 at 81 (1960)). An explicit statement in the instrument that identifies the benefited property and/or parties would eliminate the difficulty of determining all of the parties who may have rights to enforce a restriction and would, therefore, optimize the use and marketability of land. Id. at 74.

In this case, none of the parties’ deeds identify the properties to be benefited by the prohibition of above-ground swimming pools, despite being drafted well after the 1961 enactment of G.L. C.184, § 27. Despite this fact and despite the SJC’s clear interpretation of G.L. c. 184, § 27(a), the plaintiffs argue that Brear is not applicable because the properties in that case were not part of a common scheme. Whereas, here the plaintiffs contend that the original grantors, Mr. Spellman and Mr. Hamel, intended the neighborhood to be of a common scheme – single-family dwellings adhering to specific size and occupancy requirements. Relying on G.L. c. 184, § 26(5), they claim that restrictions on property in a common scheme are presumed to benefit the other properties in that scheme, even if there is no express identification of the benefiting parties in the deeds. I disagree.

The relevant part of G.L. c. 184, § 26(5) reads,

[r]estrictions may be deemed imposed as part of a common scheme if imposed of record on various parcels in such manner that each owner is entitled to enforce the restrictions against the other parcels, although there may be variations in the restrictions among the various parcels.

Unless the instrument imposing the restriction provides otherwise, it is to be presumed that a restriction imposed as part of a common scheme is enforceable for the benefit of any land only when such land either (a) is bounded by a street by which the subject parcel is bounded or (b) lies in a block surrounded by the same streets as the subject parcel, or (c) is contiguous to said block except for streets or ways.

The plaintiffs contend that this portion of § 26 creates an exemption to the definitive and clear overruling of the common law rule in § 27 for properties of a common scheme. However, the language of § 26(5) does not state that a court may infer a benefited party because of the existence of a common scheme. The first sentence of § 26(5) simply defines a common scheme to aid the reader in understanding §§ 27-30. [Note 4] The definition itself is easily harmonized with § 27: in order for a restriction to be part of a common scheme, the instruments of each parcel must identify both “the description of the land and a stated intention to benefit that land,” Brear, 447 Mass. at 73. Wolfe v. Gormally, 14 LCR 629 , 635, n.23 (2006). In other words, the restriction must satisfy the requirements of § 27 before it can be deemed part of a common scheme for the purposes of §§ 27-30. The second sentence of § 26(5) provides that once a restriction is recognized as part of a common scheme, the enforceability of that restriction can be narrowed even further by certain geographic boundaries, unless otherwise provided in the instrument. The circumstances in this case show that none of the parties’ deeds comply with the requirements of § 27. Section 26(5) does not create an exemption to this provision. Id.

Also, while it may be true that the facts of Brear did not involve properties in a common scheme and therefore did not expressly address the interaction between G.L. c. 184, § 26 and § 27, Brear clearly states that the legislative intent of those statutes was to replace the common law rule with a more definitive requirement – a statement in the deed itself identifying the benefited land. There is no indication in Brear that this requirement could be ignored if the properties in question were part of a common scheme. The plaintiffs’ proposed interpretation of § 26 would be directly at odds with the Supreme Judicial Court’s interpretation of § 27 in Brear and would undermine the purpose of § 27 to determine the enforceability of deed restrictions with precision and clarity. Brear, 447 Mass. at 76; see also Wolfe, 14 LCR at 635.

Since the deeds in this case did not identify a benefited party or property, the restrictive covenants of the deeds have not satisfied the requirement of G.L. c. 184, § 27. This renders the prohibition of above-ground swimming pools unenforceable. The deeds were drafted well after the enactment of G.L. c. 184, § 27 and the drafter could have easily identified a benefited party [Note 5] or property.


For the foregoing reasons, the plaintiffs’ motion for summary judgment is DENIED and summary judgment is entered for the defendants in accordance with Mass. R. Civ. P. 56(c). G.L. c. 184, § 27 requires that a party seeking to enforce a restriction must have been identified specifically in the deed as a benefited party or own property specifically identified as benefited, regardless of whether the properties involved were part of a common scheme. Neither the plaintiffs themselves nor their respective properties were expressly identified as the beneficiaries of the above-ground swimming pool prohibition. Therefore, the plaintiffs are unable to enforce this restriction. The plaintiffs’ claims are dismissed in their entirety, with prejudice. Judgment shall issue accordingly.


By the court (Long, J.)


[Note 1] Plan of Land in Belchertown, MA owned by Thomas Spellman and Noel Hamel (April 1987), recorded at the Hampshire Registry of Deeds in Book 146, Page 69.

[Note 2] The restriction states “No above-ground swimming pool shall be maintained or erected on said lot.”

[Note 3] The plaintiffs’ and defendants’ properties are not adjacent. Therefore, the issue left open in Brear v. Fagan –whether adjacent land is exempt from the requirement that it be “stated therein to be benefited,” is not at issue in this case. 447 Mass. 68 , 73, n.5 (2006). As described herein, the properties must “be described in the instrument imposing the restriction and be stated therein to be benefited.” Id. at 73.

[Note 4] The phrase “common scheme” is mentioned throughout §§ 27-30 with regards to limitation periods and the enforceability of restrictions in general.

[Note 5] For example, the DEP in Wolfe.