Home MAUREEN McCARTHY vs. MARY ELLEN KIMBALL, Trustee of the MARY ELLEN KIMBALL TRUST, JOEL KIMBALL, JOSEPH M. DUARTE and DAVID DUARTE, individually and as co-executors of the will of Joseph Duarte, and THOMAS L. DELBANCO and JILL B. DELBANCO, as Trustees of the M.M.B. Trust and individually

MISC 361801

February 10, 2009

Sands, J.


Plaintiff Maureen McCarthy filed her unverified Complaint on December 5, 2007, seeking to enforce protective covenants contained in a Declaration of Protective Covenants (the "Declaration"), as hereinafter described. [Note 1] Defendants Mary Ellen Kimball, Trustee of the Mary Ellen Kimball Trust (the "Kimball Trust") and Joel Kimball (together, the "Kimballs") filed an Answer on December 24, 2007. [Note 2] Defendant Joseph Duarte ("Joseph") filed an Answer on January 30, 2008. [Note 3] On March 10, 2008, Joseph filed a motion pursuant to Mass. R. Civ. P. 19(a) to add the Delbancos and the Delbanco Trust as Additional Parties Defendant, which this court allowed at a status conference on March 27, 2008.

The Delbancos and the Delbanco Trust filed their Motion for Judgment on the Pleadings pursuant to Mass. R. Civ. P. 12(c) or a Motion to Dismiss pursuant to Mass. R. Civ. P. 12(b)(6) on April 29, 2008, together with supporting memorandum. On May 27, 2008, Joseph, David, and the Co-executors filed their Opposition to the motion, together with supporting memorandum. Plaintiff filed her response to the Opposition on June 16, 2008. A hearing was held on the motion on October 22, 2008, and the matter was taken under advisement.

"In reviewing a motion to dismiss under rule 12(b)(1) or (6),'we accept the factual allegations in the plaintiffs' complaint, as well as any favorable inferences reasonably drawn from them, as true.'" Sullivan v. Chief Justice for Admin. and Mgmt. of the Trial Court, 448 Mass. 15 , 20-21 (2006) (quoting Ginther v. Comm'r of Ins., 427 Mass. 319 , 322 (1998)). "A motion to dismiss will be granted only where it appears with certainty that the non-moving party is not entitled to relief under any combination of facts that he could prove in support of his claims." Id. at 21.

The effect of a motion for judgment on the pleadings pursuant to Mass. R. Civ. P. 12(c) is "to challenge the legal sufficiency of the complaint." Bd. of Selectmen of Hanson v. Lindsay, 444 Mass. 502 , 509 (2005) (citations omitted). It is appropriate "only when the text of the pleadings produces no dispute over material facts." Tanner v. Bd. of Appeals of Belmont, 27 Mass. App. Ct. 1181 , 1182 (1989). When a defendant's pleading places the material allegations in question, a motion for judgment on the pleadings cannot lie. Id.

The following facts are not in dispute:

1. Joseph Duarte and Ethel E. M. Duarte (the "Developers"), owners of certain lots within a subdivision located in Truro, MA and shown on Land Court Plan 32874B, and a related plan, both dated August 1979 and prepared by Slade Associates, Inc. (the "1979 Plans") executed the Declaration on February 2, 1989 and recorded with the Registry at Book 3167, Page 305. The purpose of the Declaration was "to protect the investment of all lot and homeowners; to prevent the erection of poorly designed structures; to encourage the erection of attractive homes; to secure proper and pleasing site development." The Declaration covered Lots A-15, B, C, D-23, 16, 17, 18, 19, and 21-22 as shown on the 1979 Plans (the "Declaration Lots"), and states, in part, as follows:

#15 Site Location - In order to assure that the location of houses will be staggered where practical and appropriate, so that the maximum amount of water view will be available to the occupants of each house, and that the structure will be located with regard to the topography of each individual lot. The developer reserves the right to decide the location of the house upon all lots. Each location will be determined only after reasonable opportunity is afforded the individual lot owner to recommend a specific site and said approval shall not be unreasonably withheld.

#16 Construction, Alterations of Improvements, Excavations, etc - No building or structure if [sic] any kind shall be constructed, erected or placed or altered upon any house lot until the architectural and site plans, including specifications for exterior design and color scheme have been approved by the developer. The approval or disapproval shall be based upon aesthetic considerations only, and shall not be unreasonably withheld . . . . #18 Approval of the Developer - With respect to the aforementioned Items #15 and #16, the approval of the developer shall be in writing. Any plans, drawings and specifications which have been neither approved or rejected within 45 days from the date of submission to the developer shall be deemed approved, provided however that the owner has submitted to the developer all such plans and specifications for the proposed work mentioned in aforementioned Items #15 and #16 and further provided that the 45 days shall commence from the date of receipt by the developer of the last plan or specification causing the application of approval to be complete . . . .

#22 Amendments - There is reserved to the developer the right to modify or waive any restrictions and covenants contained herein as they pertain to any lots. In no event shall any modifications or waivers of the restrictions and covenants contained herein adversely affect the lots in which the developer has already conveyed title. In no event shall any modifications or waivers of the restrictions and covenants contained herein adversely affect the lots in which the developer has already conveyed title.

The developers are defined in the Declaration to mean "Joseph Duarte and Ethel E. M. Duarte, their heirs, successors or assigns."

2. The Developers died in 1996 (see Estate of Joseph Duarte, Barnstable Probate Case No. 96P1491EP-1 and Estate of Ethel M. Duarte, Barnstable Probate Case No. 96P1646EP-1), still owning five lots covered by the Declaration (Lots A, B and C were unregistered lots and Lots 18 and 19 were registered lots on the 1979 Plans). Joseph, with his brother David, are the co-executors of the will of Joseph Duarte and the heirs and successors-in-interest to the Developers. [Note 4]

3. By deeds dated October 4, 2000, and recorded with the Registry at Book 13302, Page 263, and registered on Certificate of Title No. 159415, the Co-executors deeded Lots A, B and C and Lots 18 and 19 to the Delbanco Trust. On the same day, David deeded Lots 15 and 16 to the Delbanco Trust and registered on Certificate of Title No. 159415. None of these deeds referenced the Declaration.

4. The Delbanco Trust subdivided Lots A, B, and C into Lots 1, 2, 3 and 4 by a plan titled "Plan of Land in Truro Being a division of Lots A, B & C as shown in Plan Bk. 337, Pg. 53, made for the - M. M. B. Trust (Thomas L. & Jill B. Delbanco, Trs.)" dated August 22, 2000 and prepared by Slade Associates, Inc. (the "2000 Plan").

5. The Delbanco Trust deeded to the Delbancos Lots 15, 16, 18, and 19 (being new subdivided Lots 24 and 25 on Land Court Plan 32874-C) and Lots 1, 3, and 4 (unregistered) by deed dated January 11, 2003 and recorded with the Registry at Book 16247, Page 302 and registered on Certificate of Title No. 167944. The deed states that these lots are known as 7 Quail Way, Truro, MA.

6. By deed dated June 4, 2004, and recorded with the Registry at Book 18682, Page 28, Plaintiff received a deed of property located at 6 Quail Way, Truro, MA (Lot 2 on the 2000 Plan) ("Plaintiff Property"). [Note 5]

7. On October 12, 2006, the Kimballs submitted a site plan for proposed construction of a single-family house on Lot 3 to Joseph. On October 24, 2006, Joseph approved the site plan pursuant to the Declaration.

8. By deed dated March 14, 2007, and recorded with the Registry at Book 21874, Page 14, the Delbancos deeded property located at 37 Great Hollow Road, Truro, MA (the "Kimball Property") to the Kimball Trust. [Note 6] The Kimball Property is shown as Lot 3 on the 2000 Plan and abuts Plaintiff Property. The deed conveyed Lot 3 subject to the Declaration. The deed also contained a number of restrictions relative to construction, and the following language,

Grantors hereby approve the architectural and site plans, including specifications for exterior design color scheme for the residence to be constructed on the premises as shown on plans dated October 19, 2006, caption "Kimball Residence, Truro Massachusetts" prepared by Kruger Associates, Inc., Cambridge Mass.

9. On March 15, 2007, the Kimballs submitted a building permit application, with plans to the Town of Truro Building Commissioner (the "Commissioner") for construction of a single- family house on the Kimball Property. On April 30, 2007, the Commissioner approved the application and issued the Building Permit for Lot 3. [Note 7] The Kimballs have completed construction under the Building Permit.


In her Complaint, Plaintiff argues that the Co-executors and the Delbancos have violated the terms of the Declaration in approving the plans filed by the Kimballs. In their Motion to Dismiss, the Delbancos argue that, since the deed from the Co-executors did not reference the Declaration or contain any assignment of the approval rights under the Declaration, the Delbancos have no interest in this action because they do not have rights as the developer to approve plans under the Declaration. The Co-executors argue that since they have transferred all property benefitted by the Declaration, and have not retained any rights under the Declaration, they deeded by implication all approval rights contained in the Declaration. [Note 8]

As previously introduced, the Declaration Lots were subject to various restrictive covenants. These restrictions aimed, in part, to "to protect the investment of all lot and homeowners." The rights and potential obligations of the developers (as defined within the Declaration as "Joseph Duarte and Ethel E. M. Duarte, their heirs, successors or assigns") included the right to approve prospective building plans. This approval right was held initially by the Developers until their deaths in 1996, at which time the Co-executors inherited all of the Developers' interests in the Declaration Lots, which consisted of the five remaining lots with their associated approval rights. In 2000, the Co-executors sold those same five lots to the Delbanco Trust and in such deed retained no land nor approval rights under the Declaration. As such, the central issue in this motion is whether the Delbancos, in purchasing the same five Declaration Lots that the Co-executors inherited, were successors or assigns of the approval rights under the Declaration.

In the case at bar, once the Co-executors deeded the remaining Declaration Lots to the Delbanco Trust, they no longer retained any interest in these lots and had no benefit from the restrictions. [Note 9] The Delbancos, on the other hand, held land (the five undeveloped Declaration Lots) which both benefitted from the Declaration and were burdened by it. The Delbancos had sole control over how these lots were to be developed, and were, as such, successors to the Co-executors. [Note 10] Moreover, in their deed to the Kimball Trust, the Delbancos conveyed Lot 3 subject to the Declaration and approved plans that had been drafted five months earlier. [Note 11] It was clear that the Delbancos intended for the Kimballs to be bound by the terms of the Declaration. [Note 12] Finally, it would be counterintuitive if the Co-executors were to retain the approval rights, as they no longer own any land which benefits from, or is burdened by, the approval rights.

Additionally, the Declaration appears to set up a common scheme for the Declaration Lots, as it provides a number of conditions for construction on the covered lots and states that all construction plans for the Declaration Lots should be approved by the developer. Both parties cite Patrone v. Falcone, 345 Mass. 659 (1963), in support of their respective positions. Patrone involved a lot owner's attempt to enforce a common scheme (involving construction restrictions of the subdivision lots) against another lot owner. The SJC articulated its view of such restrictions:

We are of opinion that both the language of the restriction and reason compel the conclusion that the right of approval was intended to be exercised only by the grantor, his heirs or assigns. A contrary construction would place an extremely onerous burden on each lot owner in the development, for no grantee could build without the approval, as to location and design, of every other grantee; if one grantee has the right of approval, all have it. It seems to us highly unlikely that the common grantor could have intended by implication to give this power of approval, which involves matters of personal taste and discretion, to each of the grantees in the development. Unless all the other lot owners were in agreement on the matter of location and design - which would be highly unlikely - a lot owner would be unable to erect a structure on his land.

Id. at 663. While Patrone confirmed that the right of approval was intended to be exercised by the "heirs or assigns" of the grantor, it did not address the issue of the specific individuals who held the right of approval, as in the case at bar. [Note 13]

The Co-executors argue that the approval rights run with the land and are appurtenant to the Declaration Lots and therefore passed with the deed to the Delbanco Trust of the remaining unbuilt Declaration Lots. They cite Whitinsville Plaza, Inc.v. Kotseas, 378 Mass. 85 (1979), to support such position. The Whitinsville test for whether a restriction runs with the land has been summarized in four parts: "(i) the covenants must be evidenced in a writing signed by the covenantor . . . ; (ii) the deeds must express the covenantor's intention that the covenants run with the land; (iii) the deeds must grant mutual easements sufficient to satisfy the requirement that the parties be in privity of estate; [and] (iv) both the benefit and the burden of a real covenant must 'touch and concern' the affected parcels of land." Well-Built Homes Inc. v. Shuster, 64 Mass. App. Ct. 619 , 626-27 (2005). A restriction touches or concerns the land "by conferring 'direct physical advantage in the occupation of the dominant estate.'" Whitinsville, 378 Mass. at 91-92. The restrictions provided for in the Declaration comply with these requirements. Importantly, the restrictions touch and concern the Declaration Lots. They address the construction and alterations of all structures on all Declaration Lots and thereby serve to both benefit and burden such lots, i.e. the restrictions are a burden on one lot but a benefit to each of the other lots.

As a result of the foregoing, I DENY the Delbanco Trust's Motion to Dismiss. [Note 14] The parties shall take part in the Telephone Conference Call scheduled for February 13, 2009, at 9:30 A.M. to discuss the status of this case. Judgment shall be issued upon the resolution of all remaining issues.

Alexander H. Sands, III


Dated: February 10, 2009


[Note 1] Plaintiff filed an Amended Complaint on April 22, 2008, adding, as Defendants, David Duarte, individually ("David"), Joseph M. Duarte and David Duarte, co-executors of the will of Joseph Duarte (the "Co-executors"), and Thomas L. Delbanco and Jill B. Delbanco (the "Delbancos"), both individually and as Trustees of the M.M.B. Trust (the "Delbanco Trust").

[Note 2] The Kimballs and the Kimball Trust filed their Answer to Amended Complaint on April 30, 2008.

[Note 3] Joseph and David, both individually and as Co-executors, filed an Answer to Amended Complaint on June 2, 2008.

[Note 4] The dispositive motion record does not disclose the role of the Estate of Ethel M. Duarte in this matter, but none of the parties challenge the assertion that the Co-executors are the heirs of the Developers.

[Note 5] The dispositive motion record does not contain a copy of this deed, and the January 11, 2003, deed from the Delbanco Trust to the Delbancos did not contain Lot 2, so it is unclear who the grantors were in this deed.

[Note 6] The address is also known as 8 Quail Way, Truro, MA.

[Note 7] Plaintiff alleges that the plans approved by the Commissioner are different from the ones approved by Joseph and the Delbancos, but this fact is not relevant for the motion currently before this court.

[Note 8] It may need to be addressed at a later time whether the applicability of the Declaration was affected when the Delbanco Trust reconfigured Lots A, B, and C into Lots 1, 2, 3, and 4.

[Note 9] In general, an assignee or successor in interest takes an assignor's entire interest. See e.g., Lebel v. Backman, 342 Mass. 759 , 763 (1961) (noting that the retention of a reversionary interest created a sublease, not an assignment), L & CP Corp. v. Dir. of the Div. of Employment Sec., 28 Mass. App. Ct. 961 , 962 (1990) (concluding that successor status was not applicable since the transferring company "did not transfer its entire diversified business").

[Note 10] The Delbancos argue that the approval right, as an interest in land, is covered by G. L. c. 183, § 3, which states that "no estate or interest in land shall be assigned, granted or surrendered unless by [] writing or by operation of law." The Delbancos, however, miss the point that the approval rights were assigned in writing by the deed from the Co-executors, as discussed, supra.

[Note 11] It is interesting to note that both Joseph and the Delbancos approved plans for the Kimballs. The Co-executors state that they did this as an accommodation. The Delbancos state that they did it under their own restrictions, not pursuant to the Declaration.

[Note 12] Under the specific language of the Declaration, it is clear that the Delbancos are the assigns of the approval rights, for such rights do not exist in a vacuum but, rather, are interconnected (through the purpose clause of the Declaration) with ownership of the Declaration Lots. Additionally, G. L. c. 184, § 30 states, "[n]o restriction shall in any proceeding be enforced or declared to be enforceable . . . unless it is determined that the restriction is at the time of the proceeding of actual and substantial benefit to a person claiming rights of enforcement." This section precludes the Co-executors from claiming rights under the Declaration.

[Note 13] The SJC also did not address the issue of whether a waiver clause allowing a common grantor to release restrictions affects the existence of a common scheme. Patrone, 345 Mass. at 662. However, the Court looked to other states which have held that a "reservation by a common grantor of a general power to release the restrictions on particular lots negatives the intention to establish a common scheme." Id.

[Note 14] As a practical matter, even if the Delbancos are ultimately held to be the recipients of the approval rights, they may have the option to waive these rights under Article 22 of the Declaration.