This case is before the court (Piper, J.) on cross-motions for summary judgment. Following argument by counsel, and upon review of their written submissions, the court now allows the plaintiffs motion for summary judgment. The court also denies the cross-motion of the defendants.
At issue in this action, an S case filed pursuant to G.L. c. 185, §114, et seq. as a proceeding subsequent to the original registration and confirmation of title by this court, is the extension, and continuing vitality and enforceability, of a set of registered restrictions (Restrictions) on land in Nantucket, comprising several lots, and the registered title to which is owned by the parties to this action. In this proceeding, plaintiff Stella McClintock seeks an order from the court directing the registration of a notice intended to extend the duration of these Restrictions for an additional twenty years.
The lots involved (Lots) are in the Siasconset section of Nantucket. The Lots are those shown on Land Court Plan 9314-H as Lots 7 through 16, inclusive. This plan of the court is a division into these lots of the land shown on predecessor plan, No. 9314-G; the ten Lots (and a way shown as Black Walnut Lane, serving the Lots) were created by the division of Lot 4 on this preceding plan. All of the Lot owners now are parties to this proceeding.
A common owner of these Lots was Tabitha Krauthoff. In December, 1977, she conveyed Lot 4 on the 9314-G plan to Land/Vest Properties, Inc. She did so by a deed which is Document 19091, filed with the Nantucket Land Registration District (District) of this court. This deed describes the land conveyed twice: both as Lot 4 on the 9314-G plan and as Lots 7 to 16 inclusive on the 9314-H plan. The deed provides that [s]aid premises are hereby conveyed subject to the restrictive provisions which are attached hereto as Exhibit A, which are to be imposed by the grantee upon its conveyance of each of said Lots 7 - 16 referred to above. There is an exhibit A to this deed, entitled Restrictive Provisions, running three pages in length. These are the Restrictions over which the parties in this case have their dispute.
The Restrictions are fairly comprehensive, and address in various ways the uses to be made of the Lots and the manner in which they may be improved, developed, and maintained. There are, for example, restrictions limiting the type of structures to single-family dwellings, prohibiting more than one detached dwelling house, together with accessory buildings and structures normally appurtenant to such a dwelling.... The Restrictions prohibit business activities of any nature [from being]... conducted upon the conveyed land. The Restrictions establish a requirement that, before improvements of a number of types are put up, the design, size, plans, specifications and locations thereof shall have been approved in writing or this restriction waived with respect thereto or released in writing by the Approval Authority provided for in the rest of the Restrictions. There are also quite a few objective standards governing the construction and appearance of improvements to be erected on the land.
Under the terms of the Restrictions, in paragraph 5, the rights the Restrictions establish shall be for the benefit of the Grantor (as above defined) and for the benefit of an [sic, should be and] appurtenant to the land ... included in the Benefitted Land Area described below. So long as the Grantor (as above defined) is the owner of record of one or more of the lots within the Benefitted Land area said rights shall be enforceable only by such grantor and may be waived or released by instrument in writing by such Grantor. From and after the date on which the Grantor ceases to own any of said lots of record: said rights shall be enforceable by the owner or owners of record of any one or more of said lots.... Paragraph 6 of the Restrictions identified the Benefitted Land Area as the ten Lots, i.e., Lots 7 to 16 inclusive on Plan No. 9314-H, and also Lot 5 on Land Court Plan No. 9314-G and adjoining land shown on Land Court Plan No. 38602A. In paragraph 4, the Restrictions define Grantor as the named grantor and its assigns to whom rights under these Restrictive Provisions may be specifically assigned. The Grantee and each successor in title of the Grantee to all or any portion of the premises shall by the acceptance of conveyance be deemed to have agreed to be bound by these Restrictive Provisions.
The term of the Restrictions is set out in the opening unnumbered paragraph, which provides that the Restrictions shall run with the land hereby conveyed and shall remain in force until January 1, 2007, and thereafter for such period or successive periods of twenty (20) years each as shall be specified in an instrument or instrument of extension thereof duly executed and recorded in accordance with the provisions of Massachusetts General Laws, Chapter 184, Sections 27 and 29, and which are hereby imposed for the benefit of the Grantor and the Benefitted Land Area as hereinafter specified and defined.
This proceeding was brought to obtain this courts approval of the registration of a document (Notice) entitled Notice of Extension of Restrictive Provisions Pursuant to M.G.L. Chapter 184. The Notice was executed by plaintiff Stella McClintock, the registered owner of Lot 15 under Certificate of Title No. 17115. Her certificate of title, like all those for the Lots involved in this case, on its face, under the heading Restrictive Provisions, makes clear that the McClintock lot is subject to and with the benefit of the Restrictions, the provisions of which are laid out at length in the certificate in harmony with the text of the Restrictions which accompanied the 1977 Krauthoff deed to record.
The Notice, as proposed to be registered by McClintock, was executed by her as owner of Lot 15. McClintock asserts that she acted with the consent of owners of Lots 8, 9, 10, 12, 13, and 14, who have signed joinders or assents to the Notice. The owners of three of the LotsLots 11 (the McCouches) and Lots 7 and 16 (the Welch trustees) opposed the giving and filing of the Notice. The owner of Lot 5, which holds the benefit of the Restrictions but is not bound by them, failed to weigh in concerning the Notice.
Because the Lots are registered land, McClintock found herself unable to register the Notice absent approval of this court. To secure that approval, and be able to file the Notice with the District, she brought this proceeding subsequent to registration, seeking an order that the Notice be registered by the District. McClintock sought this approval in advance of the stated initial expiration of the Restrictions on January 1, 2007. The court ordered title examination and notice to all Lot owners as interested parties. The Welch trustees and the McCouches, the defendants, are the only interested parties who opposed the request for an order that the Notice be registered.
The defendants raised a wide variety of reasons why the Notice ought not be registered. These are addressed in this Order. Because the parties sought to engage in discovery, and then to file dispositive motions on some or all of the points raised by the plaintiffs request for an order that the Notice be registered, and the defendants objection to registration, the parties ran the risk that the litigation could not be advanced sufficiently in time to permit registration of the Notice before the January 1, 2007 deadline established in the Restrictions. To deal with this, the court, in an effort to preserve the status quo, and to avoid the loss of rights based on the failure to file the Notice before January 1, 2007, issued an interim order on November 22, 2006, directing that the Notice be filed by the District, accompanied by the courts interim order. The interim order makes clear that it authorized the registration of the Notice as an interim measure to preserve the status quo, and until issuance of a final order after decision of this case on the merits. The November 22, 2006 order provided that the final order might confirm the filing of the Notice as a permanent matter, or, alternatively, might order the Notice stricken.
McClintock registered the Notice with and pursuant to the interim order prior to the end of 2006. The parties then engaged in discovery, and prepared , briefed, and argued the cross-motions now before the court.
Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law. Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 643-644 (2002); Mass. R. Civ. P. 56 (c). The moving party bears the burden of affirmatively showing that there is no triable issue of fact. Ng Bros., 436 Mass. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney General v. Bailey, 386 Mass. 367 , 371, cert. den. sub nom. Bailey v. Bellotti, 459 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law, and an adverse party may not manufacture disputes by conclusory factual assertions. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros., 436 Mass. at 648. A court must deny a motion for summary judgment if, viewing the evidence in the light most favorable to the nonmoving party, there exist genuine issues of material fact. Locator Services Group v. Treasurer and Receiver Gen., 443 Mass. 837 , 846 (2005).
There are a variety of reasons advanced by the defendants why the Notice should not be registered. The court concludes that many of the reasons are ones which this court cannot appropriately reach and resolve at the current posture of this proceeding. Those of the defendants reasons which are properly joined and capable of decision by the court in this case are, upon full consideration, as matter of law, insufficient to keep the Notice from being filed with the District. The court will enter an order that lifts the provisional or qualified status of the filing of the Notice pursuant to the courts November 22, 2006 interim order.
At the most basic level, the defendants challenge the due and authorized execution of the Notice and the related Lot owner assents. The defendants assert that the Notice has not been executed or approved, as the relevant statutory provisions require, by the requisite interest holders in the required manner. These objections by the defendants, as matter of law, are not well founded and do not present a reason the Notice ought not have been registered by the District.
Restrictions concerning land are the subject of comprehensive legislative control, and the enactments, designed to order, and in some respects limit, the availability, reach, and enforcement of recorded restrictions, produce results other than what would have been the case at common law. See generally Brear v. Fagan, 447 Mass. 68 (2006), Stop & Shop Supermarket Co. v. Urstadt Biddle Props., Inc., 443 Mass. 285 (2001). One dominant feature of the statutes is that, with exceptions not here relevant, they cause the expiration of restrictions that are not the subject of proper notices extending the life of the restrictions which have been recorded in the manner, and within the time, that the statutes require. G.L. c. 184, §27(b) causes restrictions of the sort at issue in this case to become unenforceable after thirty years, unless an extension is recorded within those thirty years; the restriction may be extended for one or more periods of twenty years if provision for doing so has been made in the original instrument.
Defendants say the Restrictions do not qualify, under section 27(b)(1) of chapter 184, as a restriction ... imposed as part of a common scheme applicable to four or more parcels contiguous except for any intervening streets or ways. ... This objection by defendants is, on the uncontroverted facts in the summary judgment record, without merit. The Lots, ten in number, are contiguous, and the Restrictions evince a classic common scheme of restriction that governs what takes place on these ten Lots. The Restrictions were established by Krauthoff as she split up the unified piece of land she owned and conveyed it to Land/Vest for the purpose of selling off individual lots to individual owners. The only fair interpretation of the title documents in the record is that Krauthoff instituted this program of restriction to control what happened on each of the Lots as they were sold off, for the protection of her own remaining land and of the newly established Lots that went out to each new owner. It matters not that Krauthoff crafted the Restrictions and then conveyed her unitary parcel to Land/Vest. A similar approach produced a common scheme of restrictions at common law, see Ward v. Prudential Ins. Co., 299 Mass. 559 (1938). The only reasonable inference is that Krauthoffs intention, in registering the Restrictions, was to impose them with the full expectation that they would apply to each Lot conveyed by Land/Vest, Lots that she knew then would be sold into separate ownership. And her intention is also clear, when the record is considered as a whole, that she wanted the individual Lot owners, as her successors in interest, to have as well the benefit of the Restrictions, particularly once she no longer owned any affected land and was herself not on the scene and able to police them. On this record, there is no doubt that the Restrictions constitute the kind of common scheme governed by section 27(b)(1), and that the provisions of that subsection determine the steps required to extend the Restrictions beyond their initial thirty-year period of enforceability.
Defendants take issue with whether the Notice was assented to by the owners of the correct percentage of the restricted land. Section 27(b)(1) allows extension of a restriction governed by it if, among other things, provision is made in the instrument... imposing ... [the restriction] 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....
One of defendants objections on this point is, as a threshold matter, that the Notice was not assented to by all of the owners of the restricted land; the defendants of course opposed registering the Notice. This argument is based on a view of the statute unsupported by either a fair reading of it or any other legal authority. Defendants read section 27(b)(1) to say that the original Restrictions, as first registered, must have, in explicit terms, called not only for extension of the Restrictions for further periods of twenty years (which it does) but also for a specific percentage of the restricted area whose owners must join in the extension. The Restrictions as filed call out, in the first paragraph, the opportunity to extend them for successive twenty year periods, in accordance with both section 27 and 29 of chapter 184. Because that language does not in so many words say that owners of fifty per cent of the restricted land must participate in such an extension, defendants argue that an extension is not valid unless unanimously joined in by all the owners of the entire restricted land. Section 27(b)(1) does not require that the original instrument specify the percentage of land whose owners must take part in a valid extension. The subsection makes the required percentage clearfifty per cent. It does authorize the original instrument to impose a higher percentage, fifty per cent or more, but unless it does so, the statute requires at least fifty per cent. That is the only plausible way to read this enactment. The statute does not say, as it might if it had been drafted to come to the result defendants espouse, that 100 per cent of the restricted lands owners must join in an extension unless the original instrument allowed a smaller percentage. The statute only requires fifty per cent of the restricted lands owners to join in an extension to make it valid.
To the extent defendants take issue with the calculation of this fifty per cent requirement, their objections are unsupported by the record. The plans and registered documents support the plaintiffs contention that more than fifty per cent of the area of the Lots has had its owners participate in the extension contemplated by the Notice. There is no legitimate factual dispute on this point. Defendants further assertion that the failure to include the area covered by the way that serves the Lots, Black Walnut Lane, in the computation of the percentages is also lacking in merit. The statute does not contemplate that the land area of a common subdivision access way be part of the denominator when measuring for the required fifty per cent. All of the Lots enjoy, as a matter of their registered title, rights to pass and repass over this way. The Restrictions, given their subject matter and terms, are not fairly read, in context, to apply to the lane. The Restrictions govern the use and improvement of residential lots, and have little of relevance to say about the road used to reach the Lots. The statute deals with parcels, and tests for their contiguity except for intervening streets or ways. Nothing in the record shows that, without the inclusion of the area of the road, the plaintiffs would not have gotten the fifty per cent authorization they require. Defendants position, if carried to its logical conclusion, would seem to be that all those who hold easement rights in restricted land (even for utility service and other mundane purposes) must be included in the process of deciding whether or not to extend restrictions under the statute. It should not be read in such an implausible way. All this convinces the court that, without any material factual dispute in the record, the Notice has the required percentage authorization required by the statute and the document originally imposing the Restrictions.
Defendants also attack the formalities of the execution of the Notice, and in particular assert that some of the assents to it joined in by owners of Lots other than McClintocks should be treated as ineffective and not counted because those joinders were not acknowledged properly. The courts review of the record leads to the decision that these claimed irregularities are not material. The instrument in question, a notice of extension of the Restrictions under the statute, is not one which necessarily requires acknowledgement to take effect. The notice is certainly not a deed within the meaning of G.L. c. 183, §29. The applicable sections of chapter 184, which create the right to use such a notice to bring about extension of restrictions, do not describe the notice as an instrument of conveyance. It transfers no interest in land. It is rather a notice, intended to alert those interested in the title to the affected land that restrictions have been extended beyond the initial thirty year limit of the statute. Sections 27 and 29 lay out specific requirements for the notice, including signature by a person entitled of record to the benefit of the restriction. Section 29 permits a notice to be joined in by the owners of any number of parcels having the benefit thereof and may be signed in behalf of any person by an attorney or agent... Again, the statutes focus is on signature, and there is no further formality, including either acknowledgment or verification under oath, contemplated by the law. If anything, the statute appears liberal in allowing ease of joinder by landowners, to the point of letting them act by agents. The Notice at issue here is not of the sort which the relevant Land Court Guideline on Registered Land, Number 1, lists as requiring acknowledgment as a condition to acceptance for registration. Most importantly, the Notice itself, signed by McClintock, is acknowledged without any fault, and nothing in the pages showing joinder by the other owners of Lots gives rise to any uncertainty about the legitimacy of their support for the Notice.
The statute also requires, in the last paragraph of section 27, that a notice of restriction under this section shall not extend the period of enforceability unless it (a) is signed by a person then entitled of record to the benefit of the restriction and describes his benefited land, if any, (b) describes the subject parcel, (c) names one or more of the persons appearing of record to own the subject parcel at the time, and (d) specifies the instrument imposing the restriction and its place of record in the public records. Although defendants do not agree, the undisputed facts shown by the summary judgment record demonstrate that these requirements have been met by the Notice.
The Notice is signed by McClintock. There is no doubt, despite defendants contrary assertions, that she is a person currently entitled of record to the benefit of the restriction. As the owner of Lot 15, McClintock holds the right to enforce the Restrictions, which provide that the rights it creates are for the benefit of not only the Grantor (Krauthoff in the 1977 instrument), but also are for the benefit of an[d] appurtenant to the land... included in the Benefitted Land Area described below. That Benefitted Land Area explicitly encompasses all ten of the Lots, including McClintocks Lot 15, as well as the Lots held by the other Lot owners who joined in the Notice to bring about the challenged extension of the Restrictions.
For much the same reason, the argument pushed forward by the defendants under Brear v. Fagan, 447 Mass. 68 (2006), also misses the mark. In that case, the court interpreted the language in section 27(a) of chapter 184 requiring that the identity of persons or land benefitted by a restriction be stated in the instrument imposing the restriction. Id., at 69. Because the instrument considered in that case failed to meet that statutory requirement, the court held the restriction involved there to be unenforceable. The Restrictions in the case at bar, however, do not suffer from the deficiencies of those reviewed in Brear. The Restrictions plainly tell that the benefit of them are appurtenant to the Lots, which make up the Benefitted Land Area described with precision in the registered document. No inferences are required to know the identity of the land holding the benefit of the Restrictions. The statutory failing that afflicted the restriction in Brear is not present in the Restrictions this court is reviewing in this case.
McClintock and the other owners of Lots who have supported the filing of the Notice meet the test of section 27(a). They are, in the words of the statute, entitled to [the] ... benefit [of the restriction] as a successor to... a party to the instrument imposing the restriction.... Defendants contention that McClintock and the other Lot owners allied with her are not successors to the original party to the 1977 instrument, for whose benefit the Restrictions was imposed--Krauthoffflies in the face of the meaning of this section. McClintock and the others derive their title to each of their Lots directly from Krauthoff, by a direct, unbroken chain of certificates of title issued by the District. McClintock and the others are, in the only possible meaning of this part of the statute, successors to Krauthoff, and as such are entitled to the benefit of the Restrictions.
Defendants take the position that neither McClintock nor any of the other owners of the Lots are successors in the manner the statute requires because, in paragraph 5 of the Restrictions, which lays out to whom and which land is to receive the benefit of the Restrictions, the language provides that the rights are for the benefit of the Grantor, Krauthoff, and also for the benefit of an[d] appurtenant to the land (other than the premises hereby conveyed, being the subject parcel) included in the Benefitted Land Area described below. Defendants argue that, because of the parenthetical language just quoted, the Lots, in their entirety (which made up the land conveyed by this 1977 deed imposing the Restrictions) were carved out of the land designated as holding the benefit of the Restrictions.
This position ignores the obvious purpose and intended effect of the 1977 deed and the Restrictive Provisions exhibit to it. The draftsmanship may not be a model of absolute precision, but there is only one feasible interpretation of the combined meaning of paragraphs 5 and 6 of the Restrictions. Read together, they provide that the Lotsmeaning the ten Lots which derived from Lot 4 on the 9314-G plan--were specifically authorized and intended to receive the benefit of these Restrictions. That is why paragraph 5 says that the rights are for the benefit of and appurtenant to the Benefitted Land Area described below. The Benefitted Land Area is, in the following paragraph, defined to include the ten Lots, called out by number and by reference to the 9314-H plan by which they were created, as well as Lot 5 on Plan 9314-G and other land on a third Land Court plan. Defendants interpretation of this conflicts materially with the words used. If defendants were correct, and the only land intended to hold the benefit of the Restrictions was land other than the ten Lots comprising the Plan 9314-H land, the definition of the Benefitted Land Area, designated to hold the benefit of the Restrictions, would be very different. The land described as holding the benefit of the Restrictions would have been only the land in paragraph 6 other than the ten Lots. The ten Lots would not have been expressly included in the Benefitted Land Area description; they would have been expressly excluded. The only reasonable reading of the Restrictions, taking the instrument as a whole, is that the Lots are specifically given the benefit of the Restrictions by the language used in the creating document. This interpretation is also the only one that jibes with the facts and circumstances surrounding the creation of these rights.
The best that defendants are entitled to have the court conclude on this point is that Krauthoff wanted to control and play the leading role in the enforcement of the Restrictions while she owned part of the Benefitted Land Area. She apparently owned and continued to occupy Lot 5, not one of the ten Lots, and wanted to be in charge of enforcing the Restrictions during that time. But there is no doubt, on the language of the Restrictive Provisions taken as a whole, that Krauthoffs intent was that the benefit of the Restrictions would devolve on the individual owners of Lots who took their title from Land/Vest, to whom she conveyed title in the 1977 deed. Once Krauthoff was herself out of the picture, the benefit of the Restrictions, by the very language of the 1977 deed creating them, was fully available to each of the Lots and able to be enforced by the owners of the Lots. The owners were certainly successors to Krauthoff within the meaning of the statute. As matter of law, the Lots, including those now owned by McClintock and the other Lot owners supporting the Notice, hold the benefit of the Restriction as Krauthoffs successors.
For all these reasons, the court concludes, as matter of law in the absence of any dispute as to material facts, that the Notice proposed for registration by McClintock with the joinder of other Lot owners, which was registered by the District in keeping with the courts interim order, was in proper form under the governing statutes, was duly executed by the appropriate parties, and was and is entitled to registration.
That is the question which brought McClintock into the court in the first place; she wished to get the Notice on record, and required the courts approval of the Notice before the District would receive it for registration. This is a typical case subsequent to registration, and McClintocks limited request was to have the court, after considering the matter (including with input from all affected landowners) scrutinize the proposed filing to decide whether, given the state of the title and the requirements of relevant law, the Notice ought be registered. Having considered each of the defendants points in opposition on this score, and found them lacking in merit as matter of law, the court rules that the Notice is fully entitled to registration, was so when registered pursuant to the interim order, and now needs to be noted as registered as of that time, but without any caveat or limitation which may flow from the conditional nature of the interim order. The court needs to issue an order to the District, to be registered on the certificates of title involved, which will accomplish this result.
The defendants, however, have striven to introduce into this proceeding an additional layer of objection to the McClintock complaint. The answers filed by the defendants raise not only those defenses addressed earlier in this Order, but further affirmative defenses that seek to prevent the registration of the Notice because of the manner in which the Restrictions have (or have not) been applied, enforced, and treated by the affected landowners over the years since 1977.
These additional affirmative defenses are: that the Restrictions have not been enforced, at least not uniformly; that the Restriction have lapsed based on lack of enforcement; that the Restrictions are not of actual and substantial benefit to the plaintiff(s) as required by statute, and thus cannot be enforced or extended; and that certain statutory provisions governing and limiting enforcement of restrictions, set out in G.L.c 184, §30, have rendered the Restrictions, in light of facts and circumstances affecting the land, no longer enforceable. Based on their asserted defenses, the defendants, who pleaded no counterclaims, ask the court to deny the relief requested by McClintock and to dismiss the complaint.
The difficulty with the defendants position concerning these additional affirmative defenses is that they do not supply good grounds for the relief defendants seekthe denial of plaintiffs request for an order that the Notice be registered by the District. Defendants see in this S case an opportunity to have the court refuse registration of the proffered Notice based on allegations that there has been a loss of rights to enforce the Restrictions--primarily because of the pattern of behavior of the landowners, over time, in dealing with the Restrictions as they affect the Lots. The defendants make the argument that, by alleging and proving that this behavior has led to a loss or limitation in the way one or more of the landowners may enforce the Restrictions as to one or more of the Lots, the Notice should not even be allowed to be registered against the relevant certificates of title.
This position, however, misses the mark. It is true that if the Restrictions in all respects can be shown, in a proceeding brought to enforce (or declare the enforcement of) them, to be lacking in any actual and substantial benefit to a person claiming rights of enforcement, the court hearing that case may not enforce the Restrictions (or declare them to be enforceable). G.L. c. 184, §30. But defendants go too far when they argue that, because the Restrictions are allegedly no longer of actual and substantial benefit, the Notice, which would have the effect of extending the Restrictions, ought not be ordered accepted for registration in this S case. Doing so would greatly expand the scope of a typical S case, which is what this is, and expand the case dramatically beyond the simple relief McClintock soughtan order that the District accept the proffered Notice and note it on the parties certificates of title.
This case was brought by McClintock only because the title to the land involved here had been registered and confirmed under G.L. c. 185. If this had been land with an unregistered title, there would have been no need whatsoever for the proponent of a notice to extend the duration of recorded restrictions to seek any approval, or to have any action in any court. The proponent could (and certainly would) have handed the notice across the counter in the recorded land side of the Registry of Deeds, paid the recording fees, and walked out the door having duly recorded the notice. The statutory requirements for lengthening the life of the restrictions involved would have been satisfied. An owner of registered land may convey, mortgage, lease, charge or otherwise deal with it as fully as if it had not been registered. G.L. c. 185, §57. The fact that the land involved here is, of course, land with a registered title, does not mean that the obstacles to having a notice of extension under G.L. c. 185, §27 and 29 accepted by the District should be, as a substantive matter, greater than in the case of unregistered land. While it is certainly appropriate, given the additional scrutiny given by the court, through its land registration districts, to review the state of title shown by the registered land certificates, verify the regularities of execution, and otherwise vet a proposed notice to make sure the statutory requirements had been addressed, the issues raised by defendants in their additional affirmative defenses are entirely outside the scope of the review the court (and its districts) can and should give to this kind of document before deciding whether or not it is entitled to registration. The issues raised by the defendants which are germane to the proper review of documents prior to registration have been considered (and found lacking in merit) in this Order. The additional issues implicated by the defendants additional affirmative defenses lie outside the proper scope of what is to be considered, and, as matter of law, do not constitute good grounds for denial of the requested order approving registration of the Notice.
These additional issues which the defendants have invited the court to address really go to the continuing enforceability of the Restrictions, and in effect ask the court either to strike the Restrictions, as extended by the Notice, from the relevant certificates because the Restrictions no longer can be enforced by anyone in any way, or, alternatively, to make declaratory judgment that the Restrictions, despite their presence on the faces of the certificates of title, may not be enforced any longer, either as a general matter, or in one or more particular ways.
That kind of relief goes beyond that sought by the plaintiffs in their complaint, and by the defendants in their answer and affirmative defenses. This is not an action for declaratory judgment. There is no request for injunctive relief. There is no pending request for judicial enforcement of a particular provision of the Restrictions, in a particular way, by a particular Lot owner, as to another named Lot owner. The court will resist the invitation by the parties, or at least some of them, to rule on the questions of the continuing enforceability of the Restrictions, or particular aspects of them, or to provide interpretation of specific provisions of them, absent pleadings that entitle the parties to that result, and in the absence of a particular set of facts concerning a specific enforcement request.
The court will issue an order to the District lifting the provisional nature of the filing of the Notice, as it took place in accordance with the courts interim order. The parties should understand that, in issuing this further order, the court has not, in this S case, made any binding adjudication as to the availability to any Lot owner or other interested party of a right to enforce judicially a particular provision of the Restrictions in a particular instance. That question has not been adjudicated in this proceeding, and is not foreclosed by this decision from being litigated in the future.
Plaintiffs motion for summary judgment is GRANTED. Defendants cross motion for summary judgment is DENIED.
Order to issue to the District in accordance with this Order on Summary Judgment.
By the Court. (Piper, J.)