JOHN P. SULLIVAN and PAMELA A. SULLIVAN v. Lisa K. Gibbs, Janet A. Birbara, Steven J. Gordon, Cash A. Cappel and Stephan Granger, Trustees of WESTWOOD HILLS IMPROVEMENT ASSOCIATION

This case comes before the Court on the parties’ cross-motions for summary judgment. The action was commenced by John P. Sullivan and Pamela A. Sullivan (“Plaintiffs”), on October 25, 2007, seeking a declaration that certain restrictions, conditions, and covenants imposed by the Westwood Hills Improvement Association Declaration Trust Agreement (“the Trust Agreement”), the Third Amendment and Restatement of the Westwood Hills Declaration of Trust (“the Third Amendment”), and the Declaration of Restrictive Covenants, do not compel them to pay assessments levied by the Defendant, Westwood Hills Improvement Association.

On November 5, 2007, the Defendants filed a Motion to Dismiss the case. On December 7, 2007, the Plaintiffs filed an opposition to the Motion to Dismiss. A hearing on the motion was held before the Court on December 11, 2007, at which time the arguments presented were taken under advisement. On December 27, 2007, this Court (Trombly, J.) issued an order denying the Defendant’s Motion to Dismiss.

On December 31, 2009, Defendants filed a Motion for Summary Judgment and supporting memorandum with the Court. On January 25, 2010, the Plaintiffs filed a Cross-Motion for Summary Judgment. A Memorandum in Response to Defendants’ Motion for Summary Judgment was filed on February 2, 2010. Arguments on the cross-motions for summary judgment were heard and taken under advisement on February 2, 2010.

The Plaintiffs move for summary judgment on two counts: (1) that they are entitled to Declaratory Judgment holding that they are not required to pay assessments to the Association; and (2) that they are entitled to injunctive relief to permanently enjoin the Defendants from invoking the Trust restrictions against the Plaintiffs.

Plaintiffs make three arguments to support these counts: (1) that the Trust restrictions have lapsed as a matter of law pursuant to G.L. c. 184 §§ 26-30, and therefore are no longer enforceable against the Plaintiffs; (2) that they are not bound by the Third Amendment and Declaration of Restrictive Covenants; (3) alternatively, if the restrictions are deemed to apply, that they owe no obligation to the Trust because the prior owner and the Trust both failed to furnish Plaintiff with a certificate at the time of the deed conveyance.

The Defendants make four arguments: (1) Plaintiffs are barred from bringing the complaint by the statute of limitations for actions in contract pursuant to G.L. c. 260 § 2, as well as the statute of limitations for actions to quiet title pursuant to G.L. c. 260 § 21; (2) the Trust meets the notice requirements of paragraph two of G.L. c. 184 § 28, therefore binding Plaintiff to the provisions set forth by the Trust; (3) failure to receive actual certificate documentation from the prior owner does not remove the requirement that Plaintiffs pay the annual assessments; and (4) that Plaintiffs agreed to the terms of the Trust by paying the annual assessments, thereby impliedly assenting to the Trust.

Based on the record as assembled by the parties pursuant to Mass. R. Civ. P. 56 and submitted to the Court, I find that the following facts are not in dispute and justify entry of summary judgment in favor of the Defendants:

1. The Plaintiffs, John P. Sullivan and Pamela A. Sullivan, purchased the property known and numbered as 14 Surrey Lane, Worcester, Massachusetts (“Property”) as tenants in the entirety, from Donald R. Melville and Mary H. Melville, pursuant to a purchase and sales agreement and a quitclaim deed dated July 1, 1977 and recorded at Worcester District Registry of Deeds, at Book 6224, Page 81.

2. The Plaintiffs’ deed imposes certain restrictions upon the Property, including restrictions on setbacks, subdivisions, new construction, and a prohibition of commercial use. Included in the restrictions are requirements that the Westwood Hills Improvement Association (“Association”) approve certain uses. There is no language in the deed that expressly requires membership in, or payment of assessments to, the Association.

3. The deed further states that these restrictions are intended for the benefit of the Westwood Hills Community, which is privately owned, and are to remain in force until the expiration of one hundred and fifty (150) years from January 1, 1930, unless otherwise released at the expiration of twenty (20) year intervals commencing from January 1, 1930, by a two-thirds vote of the holders of written certificates in the Association or, in the event that the Association has ceased to exist, upon the written consent of the then holders of the fee simple title of the land shown on the plan of Westwood Hills, recorded in the Worcester District Registry of Deeds.

4. The Association is an unincorporated association created by a Trust dated August 21, 1929 and recorded at the Worcester District Registry of Deeds, at Book 13642, Page 269 (“Trust”).

5. Prior to the purchase of the Property by the Plaintiffs, the Trust was amended twice – the first amendment occurred on September 12, 1947, and the second amendment occurred on December 14, 1981.

6. The Association was created to provide services and amenities to the Westwood Hills Community, including: suitable roadways, parks, trees, playgrounds, snow removal, lawn care, and general community maintenance and care, as well as pay taxes, assessments, and liens that have been levied upon any property held by the Trust.

7. The Defendants, Heather Maykel, Elizabeth O’Connor, Janet A. Birbara, Stephan J. Gordon, and Stephan Granger (collectively, “Trustees”) are the current Board of Trustees of the Association.

8. The Trust is required to issue certificates to property owners whose property is part of the community as indicated on the Plan. [Note 1] Upon the sale of property located on the Plan, a property owner is required to transfer his/her certificate to the new owner.

9. Plaintiffs have received bi-annual assessment fee bills from the Association since the date the Property was purchased by them.

10. During the period beginning in October 19, 1977, and ending June 27, 1983, Plaintiffs made eleven (11) payments to the Association. These payments equaled the amount required to be paid by Assessment for that period.

11. Between June 27, 1983 and October 15, 2001, the Plaintiffs did not make any payments to the Association. It is disputed by the parties whether Plaintiffs made two payments in October of 2001: the Defendants claim that Plaintiffs made a payment of $348.27 on October 15, 2001, and a payment of $3,375.70 on October 24, 2001; however, the Plaintiffs claim that no such payment was made. Neither party claims any further payment was made since.

12. Between December 1984 and 1986, Plaintiffs sent multiple communications to the Association requesting documentation proving that Plaintiffs were obligated to pay the assessments.

13. On December 31, 1985, then Association Trustee David Persky sent a letter explaining the Association’s understanding of the Trust Declarations, with copies of the Trust Declaration, to the Plaintiffs.

14. On January 3, 1986, Mr. Perksy sent another letter outlining the Plaintiffs alleged obligations under the deed restrictions and the Trust declaration.

15. On September 17, 1991, the Association filed a “Declaration of Restrictive Obligations Westwood Hills,”dated September 4, 1991, recorded Book 13642, Page 280, which as of this date has been signed by all lot owners except for the Plaintiffs.

16. On April 11, 2007, the Association brought suit in Worcester District Court (Case No. 0762CV1113), seeking recovery of unpaid assessment fees from the Plaintiffs. The action is still pending in that Court.

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DEFENDANTS’ MOTION TO STRIKE AFFIDAVITS OF JOHN SULLIVAN AND PAMELA SULLIVAN

As a preliminary matter, the Court grants, in part, Defendants’ Motion to Strike the Affidavits of John Sullivan and Pamela Sullivan for the following Paragraphs and corresponding attached materials.

In the affidavit of John Sullivan, the Court hereby strikes: Paragraph Six and the printouts from the Secretary of State’s Office, which are uncertified and therefore inadmissable; Paragraphs 33-35, which are hearsay; Paragraph 36 in its entirety, which is hearsay, conclusory and contains legal conclusions; Paragraph 40, which is irrelevant and immaterial; Paragraph 41, which contains legal conclusions; Paragraph 42, which contains incompetent legal conclusions, and is therefore also inadmissable.

The Court also strikes the Supplemental Affidavit of John Sullivan in its entirety, as it is rife with inadmissable statements, including conclusions of law and incompetent interpretations, as well as uncertified documents submitted as exhibits. Affidavits are intended to contain and relate to facts, not contain legal arguments or conclusions.

STANDARD OF REVIEW

“Summary judgment is appropriate where there is no genuine issue of material fact, and viewing the evidence in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law.” Opara v. Massachusetts Mut. Life Ins. Co., 441 Mass. 539 , 544, 806 N.E.2d 924 (2004).

In making a determination as to whether a genuine issue of material fact exists, the court must draw all reasonable inferences from the material accompanying the summary judgment motion in the light most favorable to the party opposing the motion, and resolve all doubt concerning the existence of a material fact against the moving party. Attorney Gen. v. Bailey, 386 Mass. 367 , 371, 436 N.E.2d 139 (1982). The party opposing summary judgment “cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment.” LaLonde v. Eissner, 405 Mass. 207 , 209 (1976). When appropriate, summary judgment may enter against the moving party. Mass R. Civ. P. 56(c). Summary Judgment is appropriate in the present case.

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ANALYSIS

I. The Association was correct to bill the Plaintiffs bi-annual assessment fees

The Defendants correctly assert three legal doctrines in their argument that the Plaintiff is obligated to the Association for the bi-annual assessments: a title-based claim, a common scheme claim, and a contract implied-in-fact claim. Therefore, as a matter of law, Plaintiffs are not entitled to Declaratory Judgment or Injunctive Relief, and summary judgment in favor of the Defendants must be and is granted.

A. Title-Based Claim

Plaintiffs are correct to note that there is no express language in their deed that requires membership in the Association, or that requires them to pay the bi-annual assessments to the Association. Generally, land is free of encumbrances that are not noted on the certificate of title or in the chain of title. G.L. c. 185 § 46. Popponesset Beach Ass’n., Inc. v. C. Thomas Marchillo, 39 Mass. App. Ct. 586 , 588 (1996) (holding that defendants' lots not burdened by restrictions where nothing in chains of title placed defendants on notice of such encumbrances on land); McCusker v. Goode, 185 Mass. 607 , 611 (1904) (“It is the policy of our law in regard to the recording of deeds, that persons desiring to buy may safely trust the record as to the ownership of land, and as to encumbrances upon it which are created by deed”). To this general rule there are two exceptions: (1) an encumbrance may bind an owner if what the certificate of title recites in the way of prior documents, plans, restrictions, rights, and reservations would prompt a reasonable purchaser to further investigate the referenced documents; or (2) the purchaser has actual knowledge of the encumbrance. Popponesset Beach Ass’n., Inc. v. C. Thomas Marchillo, 39 Mass. App. Ct. at 588-89.

The case at bar falls within the two exceptions to this rule. First, the Plaintiffs’ deed specifically references the Association multiple times; in fact, the majority of the language in the deed references restrictive covenants in connection with the Association. There is, thus, ample evidence to support the conclusion that the chain of title charged the Plaintiffs with notice that their properties were subject to restrictions and obligations of the type claimed by the Association. The deed also provided ample notice to stimulate a search for obligations imposed by the Association. [Note 2]

The second exception, actual knowledge, is also satisfied by both the language of the deed and the supporting evidence on the record. Given the private nature of the Westwood Hills Community and the language of the deed, it is difficult to imagine that the Plaintiffs did not have actual knowledge of the Association during the purchase of the Property.

B. Claim Based on Common Scheme

Closely related to a title-based claim is the Association’s claim to contribution based on a common scheme of development. The concept of a common scheme is that, “if certain uniform encumbrances are inserted in the titles of the preponderance of lots in a subdivision, lots in the subdivision that do not carry the encumbrance in writing in their chains of title will nevertheless be so burdened.” See Houghton v. Rizzo, 361Mass. 635, 642-43 (1972). In Massachusetts, it is the rule that the common scheme burden arises when a seller of land binds the remaining land with restrictions by means of a writing. Popponesset Beach Ass’n., Inc v. C. Thomas Marchillo, 39 Mass. App. Ct. at 591.

The certificates in question in the present case are not tied to a deed; rather, they seem more contractual in nature because they are written affirmations of membership in the Association. However, the certificates are clearly appurtenant to the coinciding parcel of land, despite what the Plaintiffs argue. Plaintiffs’ claim that the obligations imposed by signing the certificates do not run with the land is simply nonsensical – a person would have no reason to be a member of the Association if they did not live in the community. Therefore, the certificates seem to fall into the “common scheme burden” since a certificate creates land restrictions by means of writing, and every parcel of land in the subdivision is restricted by such a certificate. Id. at 591. To hold that Plaintiffs are exempt from such an obligation simply because the previous owner allegedly failed to assign the certificate, or because the Association failed to keep record of a certificate, is contrary to the law and to basic principles of equity and fairness. [Note 3]

C. Claim Based on Contract Implied in Fact

The Defendants make the well-founded argument that the Plaintiffs, whether they are obligated by their deed or not, have assented to the terms of the Association by moving to the private neighborhood, with actual knowledge of the Association, and by paying the bi-annual assessments for a period of six years.

An implied-in-fact contract exists when the conduct or relations of the parties imply the existence of a contract. LiDonni v. Hart, 355 Mass. 580 , 583 (1969). “[A] contract implied in law is an obligation created by law for reasons of justice, without any expression of assent and sometimes even against a clear expression of dissent.... [C]onsiderations of equity and morality play a large part . . . .” Salamon v. Terra, 394 Mass. 857 , 869 (1985).

It is difficult to imagine that the Plaintiffs purchased the Property without knowledge of the Association; if they so much as read the deed or saw the community entrance sign, they would have been on notice that the Property was a part of a private community. Moreover, the Plaintiffs acknowledged this duty by paying the bi-annual assessments for six consecutive years, and by availing themselves of the services provided by the Association, including road repair and snow removal. Since the Plaintiffs purchased residential property within the area of a community association, and with knowledge of the Association and the benefits it provided, and because they paid the bi-annual assessments, it follows that they manifested acceptance of the obligation to pay for the services provided by the Association.

II. The Expiration of the Deed Restrictions, pursuant to G.L. c. 184 § 28, Does Not Extinguish Plaintiffs’ Obligation to the Association

Plaintiffs put forth the argument that the restrictions placed in the deed to the Property have expired pursuant to G.L. c. 184 § 28. [Note 4] On its face, this argument has merit. The restrictions are governed by section 28 because they were created in 1929 and were not renewed within the statutory fifty year time period, as no notice of restriction was ever recorded; therefore, they expired in 1979, fifty years later. Section 28 is purportedly applicable because G.L. c. § § 26-30 apply to restrictions that are appurtenant and have a stated expiration date. [Note 5]

However, the Plaintiffs’ obligation to the trust is not a restriction or a covenant. Rather, the Court finds and rules that the duty to pay the bi-annual assessment is an equitable servitude. It is the rule in the Commonwealth that a previous grantee's promise to make annual payments connected with land may impose on the granted premises an equitable servitude enforceable against the subsequent owner taking title with actual or constructive notice of the obligation, even where the equitable servitude calls for the payment of money. See Everett Factories & Terminal Corp. v. Oldetyme Distillers Corp., 300 Mass. 499 , 504 (1938). It is an indisputable fact that Plaintiffs’ took title to the Property with full knowledge of the existence of the Association; moreover, they certainly had constructive – if not actual – notice of their obligations to the Association. Therefore, there exists an equitable servitude that requires Plaintiffs to pay the assessments as the previous owners did. [Note 6]

Furthermore, the Plaintiffs actually paid the bi-annual assessments until 1983. Meanwhile, the remaining members of the Association also continued to act as if the restrictions were still valid. Although it was not until 1991 that the community recorded the Declaration of Restrictive Obligations, the Westwood Hills community acted as if no expiration had ever occurred. Arguably, the deed restrictions were technically expired, and the Plaintiffs never signed the 1991 Declaration. Nevertheless, they purchased residential property subject to the Association with knowledge of the Association, and paid the bi-annual assessments (even after the deed restrictions had arguably expired), thereby manifesting acceptance of an equitable servitude. In short, the restrictions and covenants contained in Plaintiffs’ deed have expired, but their obligations to pay their dues to the Association have not.

III. Statute of Limitations

The Defendants affirmatively aver that the Plaintiffs have failed to timely file this action within the Statute of Limitations pursuant to G.L. c. 260 §§ 2 & 21. To bring a Statute of Limitations defense, the Defendants must have asserted the defense in their answer. See, e.g., Hodgdon v. City of Haverhill, 193 Mass. 327 (1907). In their Answer, the Defendants aver more generally that the case should be dismissed because the Plaintiffs’ claim is barred by the Statute of Limitations. Plaintiffs deny that their action is barred by the Statute of Limitations in their response to the Defendants’ Motion for Summary Judgment.

First, Defendants claim that the Plaintiffs’ claim is barred pursuant to G.L. c. 260 § 21. [Note 7] This section is applicable where a claimant seeks to recover land from another; occasions on which a person may attempt to recover land include claims for adverse possession or for prescriptive title. See, e.g., Ryan v. Stavros, 348 Mass. 251 (1964) (adverse possession); Daley v. Daley, 308 Mass. 293 (1941) (maintaining writ of entry); Attorney Gen. Ex rel. Board of Harbor & Land Comm’rs v. Ellis, 198 Mass. 91 (1908) (public prescription).

It is clear that this section is inapplicable to the case at bar. The Plaintiffs make no claim as to recovery of their land, nor do they make a claim to bar entry upon their land by the Defendants. Plaintiffs’ claims do not deal with possessory or ownership rights in any form. Rather, Plaintiffs seek to bar enforcement of a deed restriction, a claim that is contractual by nature. See Fred T. Ley & Co. v. Sagalyn, 302 Mass. 488 , 492 (1932) (stating the breach of a covenant was a breach of contract).

The Defendants also aver that the Plaintiffs’ claim is barred by G.L. c. 260 § 2 because six years have passed since the breach of the deed restriction. [Note 8] However, this Court has found that the Plaintiffs are compelled to pay the Association by reason of an equitable servitude, not by a deed restriction. Therefore, G.L. c. 260 § 2 is also inapplicable.

CONCLUSION

This court finds that, as a matter of law, the restrictive covenants in Plaintiffs’ deed have expired, but the Plaintiffs still have a legal duty to pay the Association assessments. Accordingly, the remedies sought by the Plaintiffs, Declaratory Judgment and Injunctive Relief, are not available. Therefore, summary judgment in favor of the Defendants is granted.

For the foregoing reasons, this Court concludes that the Plaintiffs’ Motion for Summary Judgment is DENIED, and the Defendants’ cross Motion for Summary Judgment is GRANTED.

Judgment to enter accordingly.