BELO, LLC v. 175 OLDE CANAL DRIVE, LLC, GOOD BELLAS, LLC, STEPHEN BAKER as TRUSTEE OF B&D REALTY TRUST, ROBERT MULREY as TRUSTEE OF B&D REALTY TRUST, and RICHARD GAROFANO as TRUSTEE OF R.G.C. REALTY TRUST

This action concerns the parties’ dispute over the validity and ownership of certain development rights described in the recorded master deed for a two-unit commercial condominium at 175-185 Olde Canal Drive in Lowell, Massachusetts, known as the “Olde Canal Drive Condominium” (the “Condominium”). Plaintiff Belo, LLC (“Belo”) is the owner of Unit B in the Condominium. Defendant Richard Garofano, Trustee of R.G.C. Realty Trust (“RGC”), is the owner of Unit A in the Condominium. Named as the Defendant Trustees of B&D Realty Trust (“B&D”) are B&D’s initial trustees, Stephen Baker (“Baker”) and Robert Mulrey (“Mulrey”), who were the original declarants of the Condominium. [Note 1] Also named as Defendants in this case are 175 Olde Canal Drive, LLC (“175 Olde Canal”) and Good Bellas, LLC (“Good Bellas”), the predecessor owners, respectively, of Units B and A. The several parties’ numerous claims, cross claims, counterclaims, and defenses can be summarized as follows.

Belo and RGC both seek declarations that the rights to develop and add a second phase to the Condominium (Phase II), as reserved by B&D in the Condominium Master Deed, were void ab initio because the Master Deed did not specify a deadline for the exercise of the reserved rights. They also seek declarations concerning the rights and obligations of the parties under certain agreements they entered into with Defendants 175 Olde Canal and Good Bellas in connection with their respective purchases of Condominium Units B and A, alleging that the agreements were based on misinformation and an unlawful severance of the Condominium common land. Finally, Belo seeks a declaration that certain language in its deed from 175 Olde Canal constitutes an illegal severance of the Condominium common land, and further seeks both reformation of the Unit B Deed to strike said language, and an order that Belo holds its title in Unit B free from the attempted severance.

B&D seeks a declaration that the Phase II rights reserved in the Master Deed are valid and enforceable rights owned by B&D, and that Belo and RGC are equitably estopped from denying the validity of said development rights. 175 Olde Canal and Good Bellas also seek judgments that the Phase II rights are valid and enforceable, [Note 2] and that Belo and RGC are equitably estopped from claiming otherwise. Additionally, Good Bellas has cross-claimed against RGC, seeking damages for alleged breaches of the agreement made in connection with the RGC’s purchase of Unit A.

Belo filed its motion for summary judgment on May 15, 2009. RGC also filed its motion for summary judgment on May 15, 2009, essentially adopting and relying upon Belo’s arguments. [Note 3] The remaining Defendants opposed Belo’s and RGC’s motions for summary judgment, and jointly cross-moved for summary judgment on June 23, 2009. The summary judgment hearing was held on August 11, 2009. On the same date, a hearing was held on Belo’s motion to dismiss the two successor B&D Trustees as Defendants due to B&D’s June 23, 2009 termination, and request for further instructions from the court as to whether the purported beneficiaries of B&D are now necessary and indispensable parties to the action. [Note 4]

SUMMARY JUDGMENT STANDARD

“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 (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 (1982). When appropriate, summary judgment may enter against the moving party. Mass R. Civ. P. 56(c).

UNDISPUTED FACTS

Based upon the pleadings, the parties’ statements of fact and the admissible materials submitted in support of the parties’ summary judgment motions, I find that the following material facts in the case are undisputed.

The Trust

1. The B&D Trust was established under Declaration of Trust dated June 23, 1989 (the “Trust Instrument”), and recorded in the Middlesex North District Registry of Deeds at Book 4929, Page 313.

2. Baker and Mulrey were the original trustees of B&D. Both resigned in early 2008.

3. On November 11, 2008, a document entitled “B&D Realty Trust Acceptance of Resignation of Trustees, Appointment of Trustees, and Trustees Certificate” was recorded in said Deeds at Book 22551, Page 40 (the “2008 Trust Certificate”), certifying that Elizabeth Lynch (“Lynch”) and Edward Browne (“Browne”) were the duly appointed and sole trustees of the B&D Trust (the “Trustees”).

4. The 1989 schedule of B&D beneficiaries lists Browne and David L. Lynch, as each having a 50% beneficial interest. David L. Lynch died on August 17, 2004, and his beneficial interest in B&D was transferred to Lynch and Annmarie Roark (“Roark”) as Trustees of the David L. Lynch 2001 Revocable Trust established u/d/t dated September 12, 2001 (“Revocable Trust”). The beneficial interest then passed, via Article VII of the Revocable Trust, to the Lynch Family Trust (“Family Trust”). Lynch and Roark (as Trustees of the Family Trust) and Browne executed the 2008 Trust Certificate as the B&D beneficiaries.

5. On June 23, 2009, B&D automatically terminated pursuant to Paragraph 4 of the Trust Instrument, which provides, in relevant part, that “the Trust shall terminate in any event twenty (20) years from the date hereof.”

The Condominium Master Deed

6. On December 19, 1989, Baker and Mulrey, as then-trustees of B&D (“Declarant”), executed the Condominium Master Deed, submitting the land at 175-185 (Lot 8) Olde Canal Drive, Lowell, Middlesex County, Massachusetts (the “Condominium Land”) “together with buildings and improvements thereon, and all easements, rights and appurtenances belonging thereto” to the provisions of G. L. c. 183A as a condominium. The Master Deed was recorded on December 21, 1989 in said Deeds at Book 5103, Page 180.

7. Referenced in and attached to the Master Deed is Exhibit A, which contains a description of the Condominium Land and the then-existing encumbrances. The land is described as being a parcel “shown as Lot 8 on a plan of land entitled ‘Subdivision Plan of Land in Lowell, Mass.’ Prepared by: Medford Engineering & Survey, dated January 16, 1989 ... [c]ontaining, according to said plan, 10.16 acres of land.”

8. Also referenced in and recorded with the Master Deed is the As-Built Site Plan, entitled, “As-Built Site Plan, Olde Canal Drive Condominium, Lowell, Mass.’” prepared by Robert P. Morris, dated November 22, 1989 (“Site Plan”), showing the total area of the Condominium Land as approximately 10.157 acres. The Site Plan shows the area of the Condominium Land designated for Phase I as 8.373 acres, and the area designated for Phase II as 1.784 acres. [Note 5]

9. Paragraph 2 of the Master Deed recites that:

It is the intention of the Declarant to develop the Condominium in phases. The first Phase (Phase I) shall consist of one building containing two units, located in the Phase I portion of the land described in Exhibit A annexed hereto and delineated as Phase I on the Site Plan recorded herewith. As set forth herein, Declarant has reserved the right to add one additional Phase (Phase II) consisting of one additional building, to be located in the Phase II portion of the land described in Exhibit A annexed hereto and delineated as Phase II on said Site Plan.

10. In the Master Deed, the “Declarant reserves for itself, its successors and assigns the right to construct and add to the Condominium an additional phase as set forth herein.” Master Deed, Article 1, ¶ 2. “The rights reserved by and for the benefit of the Declarant to construct additional Phases and to build, sell, lease or occupy additional Units and improvements within such Phases” are collectively referred to in the Master Deed as “Expansion or Development Rights.” Master Deed, Article 1, ¶ 8.

11. The Master Deed contains numerous, specific references to Phase II, throughout, as well as several more general references to subsequent or future phases.

12. The Master Deed provides that “[i]f Phase II is constructed it shall consist of one building, containing one or more Units…” Master Deed, Article 2, ¶ 4.

13. The Master Deed provides that “[e]ach purchaser of a Unit within the Condominium, by his recording of a deed to his respective Unit, shall be deemed to consent to the … amendment to this Master Deed” to add Phase II upon completion of construction of the Phase II building. Master Deed, Article 2, ¶ 6.

14. Referenced in and attached to the Master Deed is Exhibit B, which sets forth the percentages of beneficial interests in the Condominium common elements apportioned to Units A and B in Phase I, as 40% and 60% respectively. Exhibit B also sets forth the proportionate interests if Phase II were to be developed. Specifically, Unit A’s interest would be reduced to 22%, Unit B’s interest would be reduced to 33%, and the interests of all the Phase II units would be 45% in the aggregate.

15. The Master Deed provides that “while under construction, Phase II is specifically excluded from the Common Elements.” Master Deed, Article 4, ¶ 2. The Master Deed further provides that “[i]f the Master Deed is not so amended to create a subsequent Phase, then the land upon which said Phase was to be constructed shall be a Common Element and part of the Condominium.” Id.

16. In the Master Deed, the Declarant “reserves the right for itself, its successors and assigns, to determine, in its sole discretion, to abandon its intention to create subsequent Phases of the Condominium…and may, in its discretion record a statement to said effect…” Master Deed, Article 1, ¶ 7. [Note 6]

17. The Master Deed states that the “[s]eller may sell, lease, mortgage or otherwise convey … the Expansion or Development Rights …,” which are “to be held either appurtenant or in gross” but “may only be conveyed or assigned specifically by a document recorded in Middlesex North District Registry of Deeds.” Master Deed, Article 1, ¶ 8. [Note 7]

18. The Master Deed provides that the Declarant “may amend the Master Deed without the consent of any Unit owners” to add Phase II. Master Deed, Article 8, ¶ 1. Further, “[n]o amendment may alter the Declarant’s Expansion Rights without Declarant’s consent.” Master Deed, Article 8, ¶ 2.

19. Article 14 of the Master Deed provides that :

The recording of a deed …of any Unit shall constitute an agreement that: (a) the provisions of this Master Deed, …and the Site and Floor Plans of the Condominium recorded simultaneously with and as a part of this Master Deed, as the foregoing may be amended from time to time, and the said items affecting title to the Condominium are accepted and ratified by such owner…or any person having at any time any interest or estate in the Unit, and all such provisions shall be deemed and taken to be covenants running with the land and shall bind any person having at any time any interest or estate in the Unit, as though such provisions were recited and stipulated at length in each and every deed or conveyance or lease thereof…

20. The Master Deed does not specify any deadline or contingency for the exercise of the Expansion or Development Rights.

21. Phase II has not been constructed and, accordingly, the Master Deed has not been amended to reflect incorporation of a completed Phase II in the Condominium.

The Phase I Units

22. Belo is the record owner of Unit B in Phase I of the Condominium. The chain of title for Unit B is as follows. By deed dated December 19, 1989, Baker and Mulrey, as trustees of B&D, conveyed Unit B to Jeanne Browne, as trustee of the E. L. Browne II Realty Trust. By deed dated February 25, 1999, Jeanne Browne, as trustee of the E. L. Browne II Realty Trust, conveyed Unit B to Defendant 175 Olde Canal. By deed dated September 9, 2004, 175 Olde Canal conveyed Unit B to Belo.

23. RGC is the record owner of Unit A in Phase I of the Condominium. The chain of title for Unit A is as follows. By deed dated December 19, 1989, Baker and Mulrey, as trustees of the B&D Trust, conveyed Unit A to Baker, as trustee of the G&R Realty Trust (“G&R”). By deed dated November 8, 2005, Roark, as a then-trustee of G&R, conveyed Unit A to Defendant Good Bellas. By deed dated August 31, 2006, Good Bellas conveyed Unit A to Richard Garofano, as trustee of RGC.

24. The original deeds out from B&D to the next owners of Units A and B (G&R and E. L. Browne II Realty Trust, respectively) each state that “[t]he Subject Unit is hereby conveyed subject to …the expansion and development rights reserved to the Declarant under Article 1. …” Both those deeds further recite that:

By acceptance hereof, the Grantee(s), for themselves and their heirs, successors and assigns, hereby expressly acknowledge and agree that the Grantor, as Declarant of said Master Deed, has reserved and shall have the rights, as set forth in Article 1. and Article 2. of said Master Deed, to amend said Master Deed to include in said Condominium Phase II thereof as described and defined in said Master Deed, whereupon the percentage of interest in the Subject Unit hereby conveyed in the common areas and facilities will be changed as therein provided; and to that end, the Grantee(s) hereby constitute and appoint the Grantor the true and lawful attorney of Grantee(s) in the name and stead and on behalf of the Grantee(s) to execute, acknowledge, deliver and record any such amendments of said Master Deed and/or other instruments deemed by the Grantor to be necessary or appropriate to effectuate the inclusion of said Phase II in said Condominium, the power of attorney granted being coupled with an interest irrevocable. (Emphasis added.)

25. The Unit A deeds from G&R to Good Bellas, and from Good Bellas to RGC, recite that “[t]he Subject Unit is hereby conveyed subject to … the expansion and development rights reserved to the Declarant under Article 1 [of the Master Deed].”

26. The 2004 Unit B deed from E. L. Browne II Realty Trust to 175 Olde Canal also recites that “[t]he Subject Unit is hereby conveyed subject to … the expansion and development rights reserved to the Declarant under Article 1. …” But the Unit B deed from 175 Olde Canal to Belo further provides that:

Specifically excluded from this sale is grantor’s right, title, and interest which is retained by grantor in .70 acres (30,722 sq. ft., more or less) [Note 8] of building and parking impervious land identified as Phase II on a certain As Built Site Plan entitled “Olde Canal Drive Condominium prepared by Robert P. Morris, R.P.L.S., 21 Carter Street, Tewksbury, MA” dated November 22, 1989 and recorded on December 21, 1989 in the Middlesex North District Registry of Deeds at Plan Book 171, Plan 125. (Emphasis added.)

175 Olde Canal held no right, title or interest in any of the land identified as Phase II, except for an undivided interest in said land as part of the Condominium Common Elements.

27. In conjunction with the closing for the 2006 conveyance of Unit A from Good Bellas to RGC, RGC executed a “Reconveyance and Cooperation Agreement” (the “Unit A Agreement”). The Unit A Agreement, recorded in said Deeds at Book 20485, Page 48, provides in part:

Good Bellas did not have any ownership interest in any of the Phase II land, except for an undivided interest in said land as part of the Condominium Common Elements.

28. On August 30, 2006, Belo entered into an agreement with 175 Olde Canal and Good Bellas (the “Unit B Agreement”). The Unit B Agreement purported to provide an option, until February 28, 2007, for Belo to purchase the Phase II expansion and development rights for the sum of $200,000. The Unit B Agreement was premised upon the belief (which the parties now concede was mistaken) that Good Bellas and 175 Olde Canal owned said expansion and development rights. The Unit B Agreement references the Site Plan but, contrary to the information shown on the Site Plan, states that the Phase II area is .70 acres. [Note 10]

29. Belo did not exercise the option described in the Unit B Agreement.

DISCUSSION AND ANALYSIS

I. VALIDITY AND OWNERSHIP OF THE DEVELOPMENT RIGHTS

A. The Nature of the Development Rights

In evaluating the validity of the reserved Phase II expansion and development rights, the first question to be addressed is the nature and quality of the legal estate at issue. See Proprietors of the Church in Brattle Square v. Grant, 69 Mass. 142 , 145-146 (1855). Here, the plain language of the Master Deed evidences B&D’s intention to reserve to itself, its successors and assigns: (1) the right to amend the Master Deed to add Phase II to the Condominium, without the need for future approvals from the Phase I unit owners (the “Phasing Rights”), and (2) easements over the Condominium Land appurtenant to the construction and conveyance of Phase II (the “Appurtenant Easements”).

The Phasing Rights

The Declarant’s intentions to reserve the Phasing Rights and to retain exclusive and unconditional ownership of those Rights are expressed in several provisions throughout the Master Deed. For example, in the second paragraph of Article 1,

[t]he Declarant reserves for itself, its successors and assigns the right to construct and add to the condominium an additional Phase as forth herein.

In the seventh paragraph of Article 1, the Declarant

…further reserves the right for itself, its successors and assigns, to determine in its sole discretion, to abandon its intention to create subsequent Phases… and may, in its discretion record a statement to said effect…, and upon the recording of said instrument, the right hereinbefore reserved to create subsequent Phases shall thereby terminate upon the date of said recording.

The above-quoted language also plainly establishes the Declarant’s intention that the Phasing Rights vest immediately, and only terminate upon election by the Declarant as demonstrated by the recording of an instrument stating its intent to abandon the reserved right to create subsequent phases.

The Appurtenant Easements

The Declarant’s intentions to reserve to itself the Appurtenant Easements for Phase II, even after the conveyance of the Phase I units, are also expressed in several provisions of the Master Deed. The third paragraph of Article 1 states that:

[t]he premises are subject to and have the benefit of all rights, easements, appurtenances, improvements and reservations as are set forth in Exhibit A … and are further subject to and have the benefit of the rights and easements reserved by the Declarant as described in this Master Deed. (Emphasis added.)

The fourth paragraph of Article 1 states that:

[t]he premises are subject to the rights of others, and with the benefit in common with others now or hereafter entitled, to use all roads and driveways shown on the [Site] Plan in all Phases for all purposes for which roads and driveways are used, including but not limited to the right of the Declarant, its successors and assigns and all unit purchasers to use said roads and driveways …together with the right to reconstruct or relocate within the layout of said roads and driveways and to install, repair replace or maintain, now or in the future, … utilities serving all Phases …including the right to grant all such rights to other land owners, under and across all Phases.

In the fifth paragraph of Article 1,

The Declarant also reserves the right to have as appurtenant to the construction of any and all Phases, an easement over the portion of the Premises on which are or shall be located the buildings constituting additional Phases as shown on [the Site Plan]. [Note 11]

The fifth paragraph goes on to reserve as appurtenant to the Phasing Rights, an easement to pass and repass over the premises, including the right to store equipment and supplies necessary for the construction of “any and all Phases,” and easements to use driveways and walkways and other necessary improvements to serve the buildings “in any and all Phases.” In the sixth paragraph of Article 1, the Declarant further

…specifically reserves for itself and its successors and assigns in title to the property shown on the Plan therein easements and the right to grant easements for utilities, parking, roadways, driveways, walkways and any other purpose for which easements may be granted….

Finally, the last paragraph of Article 1 recites that the rights reserved by and for the benefit of the Declarant to construct additional phases and to build, sell, lease or occupy additional units and improvements within such phases are to be “held either appurtenant or in gross” and may be leased, sold, mortgaged or otherwise conveyed or encumbered absolutely or as security, by a document recorded in the Middlesex North District Registry of Deeds.

The Declarant’s intentions with respect to the reservation of the Phasing Rights and Appurtenant Easements (collectively, the “Development Rights”) [Note 12] under Article 1 of the Master Deed are also plainly reflected in the first deeds out from the Declarant conveying the two Phase I Units, Units A and B. Each of these Unit Deeds recite that “[t]he Subject Unit is hereby conveyed subject to … the expansion and development rights reserved to the Declarant under Article 1 [of the Master Deed.].” Further, both deeds expressly incorporate all of the terms of the Master Deed, by reference, and both deeds recite the following:

By acceptance hereof, the Grantee(s), for themselves and their heirs, successors and assigns, hereby expressly acknowledge and agree that the Grantor, as Declarant of said Master Deed, has reserved and shall have the rights, as set forth in Article 1. and Article 2. of said Master Deed, to amend said Master Deed to include in said Condominium Phase II thereof as described and defined in said Master Deed, whereupon the percentage of interest of the Subject Unit hereby conveyed in the common areas and facilities will be changed as therein provided;

(Emphasis added.)

Deeds should be construed to give effect to the intent of the parties, unless inconsistent with some law or repugnant to the terms of the grant.” See Harrison v. Marcus, 396 Mass. 424 , 429 (1985), quoting Bass River Sav. Bank v. Nickerson, 303 Mass. 332 , 334 (1939). Here, contrary to Belo’s characterization of the Development Rights as equivalent to an “option to purchase,” there is nothing in the Master Deed or the original Unit Deeds that either expressly or impliedly creates an “option” or any other future interest in the Development Rights. Rather, the Master Deed unambiguously expresses B&D’s intent to reserve to itself, its successors and assigns, the unconditional, nonpossessory rights to first construct the Phase II building and improvements on the 1.784 acre Phase II land and, upon completion, to amend the Master Deed to include Phase II in the Condominium. Moreover, the first Unit deeds out from the Declarant expressly recite the grantees’ acknowledgment of that intent. The language of the Master Deed is also entirely consistent with an intent to have the reserved Rights vest immediately upon establishment of the Condominium.

B. The Validity of the Development Rights

The Declarant’s intentions in reserving the Development Rights having been established, the next question to be addressed is whether the reservation of the Development Rights was inconsistent with law, as Belo contends, such that the Declarant’s intent cannot be lawfully effectuated. As discussed in more detail below, I conclude that the undisputed facts do not support Belo’s claims that the Development Rights were void ab initio. More specifically, I conclude that the lack of a specified time limit in the Master Deed for the exercise of the Development Rights did not make those Rights void ab initio under any of the theories advanced by Belo in its Summary Judgment arguments, namely, that the reservation of Development Rights in the Master Deed, unlimited as to time: (1) violated the statutory rule against perpetuities, (2) constituted an unreasonable restraint on alienation, (3) violated the Statute of Frauds, (4) violated the recording requirements of G. L. c. 183, § 4, and (5) violated the condominium enabling statute, G. L. c. 183A.

1. The Rule Against Perpetuities

In its summary judgment memorandum, the Plaintiff characterizes the Development Rights as a type of preemptive right, equivalent to an “option to purchase.” Belo claims, on this basis, that B&D’s attempt to reserve the rights to develop future phases of the Condominium failed, as a matter of law, because the lack of any specified time limit for the exercise of the Development Rights means they will not necessarily vest within twenty-one years from the date of the Master Deed which purports to create those Rights. Thus, Belo argues, the Development Rights were void ab initio. The undisputed facts in this case do not support Belo’s argument.

When the Master Deed creating the Development Rights was recorded in 1989, Massachusetts adhered to the common law rule against perpetuities, as it was then codified in G. L. c. 184A [Note 13] See Bortolotti v. Hayden, 449 Mass. 193 , 199, n.6 (2007); Hochberg v. Proctor, 441 Mass. 403 , 407, n. 10 (2004). Under former Chapter 184A, §§ 1 and 2, interests in property were required to vest, if at all, within twenty-one years plus the life or lives in being at the time the interest was created. Harrison v. Marcus, 396 Mass. 424 , 431, n.13 (1985).

This statutory rule against perpetuities was applicable only to certain future interests, i.e., those interests in which the right to possession was postponed to a future time or was made contingent upon the happening of a future event. Bortolotti v. Hayden, 449 Mass. at 192. As discussed in the previous section, I have concluded on the basis of the undisputed facts in this case that the Declarant did not intend for the Development Rights to be future interests. Rather, the Development Rights were intended to vest immediately upon the recording of the Master Deed establishing the Condominium. The mere lack of a specific, temporal limit on the exercise of the Development Rights, does not convert the reserved Rights to a future interest subject to the rule against perpetuities where, as here, there is nothing in the language of the Master Deed to suggest that ownership of the Development Rights was to be deferred to a later date, or was to be contingent upon a future event. Therefore, the rule against perpetuities is not applicable in this instance, and Belo is not entitled to summary judgment that the Development Rights were void ab initio under said rule. [Note 14]

But even if the potential for remote exercise of the Development Rights could be construed as equivalent to conditional or contingent ownership of those Rights, thereby implicating the statutory rule against perpetuities, the Plaintiff would still not be entitled to a declaration that the Development Rights were void ab initio under the rule, since the rule’s vesting period has yet to expire. Under the “wait and see” doctrine applied in Massachusetts, it is only after the vesting period expires without actual vesting that a violation of the rule can be determined. Harrison v. Marcus, 396 Mass. at 431, n.13; Warner v. Whitman, 353 Mass. 468 , 472 (1968). Here, if the rule against perpetuities were applicable, the earliest the vesting period could end would be December 21, 2010 — twenty-one years after the date the Master Deed was recorded. See Bortolotti v. Hayden, 449 Mass. at 200 (where the instrument creating the interest is silent with respect to temporal limitations on when the right must vest, either in terms of the lives of the parties or a specified period of years, the applicable period under the rule is twenty-one years from the time the right was conferred). Therefore, Belo’s claim would be entirely premature.

For the foregoing reasons, neither Belo nor RGC is entitled to judgment that the Development Rights were void ab initio under the rule against perpetuities.

2. Restraint Against Alienation

Belo further claims that the Master Deed’s lack of any specified time limit for exercise of the Development Rights constituted an unreasonable, and consequently illegal, restraint on alienation, making the Rights reserved therein void ab initio. There is nothing in the summary judgment record, however, to show that the reservation of Development Rights has already operated as, or would operate in the future as, a restraint (unreasonable or otherwise) on alienation of the Units.

The common law rule against restraints on alienation limits the ability of property owners to retain long-term control over the future sale or conveyance of property. Bortolotti v. Hayden, 449 Mass. at 204. I have already concluded that the Development Rights described in the Master Deed are not preemptive in nature. Their existence, moreover, imposes no obvious impediment to the conveyance of the Condominium units. Cf. Bortolotti v. Hayden, 449 Mass. at 201-202 (right of first refusal did not create unreasonable restriction against alienation where it included no power to compel the sale of the property at an unfavorable price, or to encumber owner’s ability to sell for a lengthy period of time). Rather, the evidence is to the contrary, since it is undisputed that both of the Phase I Units have been sold several times over. Indeed, both Belo and RGC acquired their Units with full knowledge of the existence of the Phase II Development Rights, even though they may have misunderstood the exact nature and ownership of those Rights at the time. [Note 15] Therefore, neither Belo nor RGC is entitled to summary judgment that the Development Rights were void ab initio as an illegal restraint on alienation.

3. The Statute of Frauds and the Recording Requirements of G. L. c. 183, § 4

Belo’s claims that the Development Rights in the Master Deed were void ab initio under the Statute of Frauds and the recording requirements of G. L. c. 183, § 4 also fail as a matter of law. The Statute of Frauds requires that contracts to purchase real property must be in writing and signed by or on behalf of the party to be charged. G. L. c. 259, § 1. Such writing must reasonably identify the essential terms of the purchase contract, such as a description of the property, identification of the parties, the purchase price, and an indication that the transaction is a sale of the property. Simon v. Simon, 35 Mass. App. Ct. 705 , 709 (1994), citing Schwanbeck v. Federal-Mogul Corp., 412 Mass. 703 , 709-710 (1992) and Michelson v. Sherman, 310 Mass. 774 , 775 (1942). Belo argues that, pursuant to G. L. c. 259, § 1, an expiration date for development rights is an essential term to be included in a master deed, and that the lack of an expiration date for the Development Rights reserved in the Master Deed, therefore, violated the Statute of Frauds. A master deed is not a contract to purchase property, however, and is therefore not governed by the Statute of Frauds. Rather, the basic terms required to be included in a master deed are governed by G. L. c. 183A.

The failure to specify a time limit in the Master Deed for the exercise of the Development Rights also did not violate the recording requirements of G. L. c. 183, § 4. According to the Plaintiff, because the Master Deed does not specify an outside time limit for the recording of a Phase II amendment, the reservation of the Development Rights is equivalent to the reservation of an “indefinite option” to phase, and analogous to a lease of greater than seven years. Belo contends, therefore, that the reservation was void ab initio under the provision in G. L. c. 183, § 4, which states that a “conveyance of an estate in fee simple, … or a lease for more than seven years from the making thereof,…shall not be valid as against any person, except the grantor or lessor, his heirs and devisees and persons having actual notice of it, unless it… is recorded in the registry of deeds for the county or district in which the land to which it relates lies.” But Belo’s argument is dependent upon its characterization of the Development Rights as an “option” — a characterization which I have rejected. Belo’s argument is also defeated by the undisputed fact that the Master Deed (in which the Development Rights are expressly reserved) was recorded on December 21, 1989. Once the Master Deed was on record, purchasers of units in the Condominium (including Belo and RGC) were on notice of the nature of the reserved Development Rights (including the absence of an outside time limit for their exercise).

Accordingly, Belo and RGC are not entitled to summary judgment that the Development Rights were void ab initio under either the Statute of Frauds or G. L. c. 183, § 4.

4. The Condominium Statute

Belo’s final argument that the Development Rights were void ab initio, is that the failure to include in the Master Deed a time limit for the exercise of the Development Rights constituted a violation of the condominium enabling statute, G. L. c. 183A (the “Condominium Statute”). Although admitting that the Condominium Statute does not expressly impose, or require the imposition of, any temporal limit on phasing of condominium developments, Belo argues that the lack of a temporal limit on the exercise of the Development Rights nevertheless violated an “implied” time limit requirement under § 5(b) of the Condominium Statute (“§ 5(b)”). I find no merit to this argument.

Belo relies on certain language found in G. L. c. 183A, § 5(b)(2)(iii) [Note 16] for the proposition that a time limit on phasing development rights is implied. Notably, § 5(b)(2)(iii) was not in effect at the time of the recording of the Master Deed in 1989. It was not inserted into G. L. c. 183A until 1998. St. 1998, c. 242. But even if that particular section had been codified in 1989, it does not pertain in any way to a declarant’s unilateral exercise of reserved phasing rights. Instead, the provision addresses only the power of the organization of unit owners to extend, revive or grant any rights to further develop the condominium, as may have been provided in the master deed. The provision, moreover, does not establish (or assume) any time limit at all for the exercise of such power; it merely allows for the organization to exercise its powers regarding further development “even if” any time limit originally established in the particular master deed has expired. Therefore, § 5(c) does not at all support the Plaintiff’s theory that there is an implied statutory time limit for exercise of phasing rights.

Furthermore, the Plaintiff’s argument that there is an implied statutory time limit on the development of condominium phases is inconsistent with the well-established view of the Condominium Statute as “provid[ing] planning flexibility to developers and unit owners,” see Barclay v. De Veau, 384 Mass. 676 , 682 (1981), with matters not specifically addressed in the statute to be worked out by the parties, as long as the minimum requirements of the statute are met. Tosney v. Chelmsford Village Condominium Ass’n, 397 Mass. 683 , 686-687 (1986). Indeed, although not specifically addressed in Chapter 183A, the Massachusetts Courts have long recognized the validity and proper purpose of so-called “phasing” provisions in a master deed, which allow the developer to complete groups or stages of units over time, and then add them to the condominium by successive amendments to the master deed, in response to market conditions. Queler v. Skowron, 438 Mass. at 312, n.15; Podell v. Lahn, 38 Mass. App. Ct. 688 , 689, n.3 (1995). [Note 17] Accordingly, the Plaintiff’s implied statutory time limit argument fails.

For the reasons discussed in Section I of this Decision, I find and rule and that the Development Rights were lawfully created under the Master Deed, and that the Master Deed’s silence as to any time limit for the exercise of the Development Rights reserved therein did not render said Rights void ab initio under any of the theories advanced by Belo. [Note 18]

II. THE UNIT B DEED

The Plaintiff also seeks a declaration that the language in the Unit B deed from 175 Olde Canal, which purports to exclude the grantor’s right, title and interest in the Phase II land from the conveyance of the Unit, is void and of no effect because it unlawfully severed the Condominium common land in violation of § 5(c) of the Condominium Statute (“§ 5(c)”). Section 5(c) states, in relevant part, that “the common area and facilities shall remain undivided.” For the reasons discussed below, I conclude that Belo is entitled to judgment as a matter of law that the exclusion language in the Unit B Deed violates § 5(c), and is therefore void and unenforceable.

The Condominium Land was originally submitted to the provisions of the Condominium Statute as a single, undivided parcel. The provisions of the Master Deed pertaining to the common land and facilities (the “Common Elements”) also specify that “[u]ntil the amendment to the Master Deed creating Phase II of the Condominium, the Common Elements shall consist of the entire property as shown on the [Site] Plan including all parts of the building and improvements thereon other than the Units or the areas designated Limited Common Area….” Under the express terms of the Master Deed, the 1.784 acre portion of the common land described in the Master Deed and designated on the Site Plan as “Phase II” would continue to be owned by the Unit Owners as part of the undivided Common Elements, subject, however, to the Declarant’s reserved Development Rights both before and during construction of Phase II. This arrangement does not violate § 5(c). [Note 19], [Note 20]

While the Master Deed makes proper provision for the continuing undivided ownership by the Condominium Unit owners in the common land, certain language in the Unit B deed to Belo nevertheless purports to exclude from the conveyance of Unit B the grantor’s ownership interests in common land designated in the Master Deed and on the Site Plan as Phase II. Such exclusion does violate § 5(c).

The Unit B deed from 175 Olde Canal to Belo recites that “specifically excluded from this sale is grantor’s right, title, and interest which is retained by grantor in .70 acres (30,722 sq. ft., more or less) [Note 21] of building and parking impervious land identified as Phase II on a certain As Built Site Plan entitled “Olde Canal Drive Condominium …” The undisputed facts show that 175 Olde Canal, in accordance with the Condominium Statute, the Master Deed, and the Unit B deed from the E. L. Browne II Realty Trust, possessed only a 60% undivided interest in the Phase II land as part of the Condominium Common Elements, which it had acquired with Unit B. Because, pursuant to § 5(c), each unit in a condominium must be conveyed together with its undivided interest in the common land and facilities, the above-quoted language contained in the Unit B deed to Belo, purporting to exclude from the conveyance of that Unit the grantor’s interests in the Phase II portion of the common land, is null and void under § 5(c). See G. L. c. 183A, § 5(c) (“The common areas and facilities shall remain undivided and no unit owner or any other person shall bring any action for partition or division of any part thereof . . . . Any covenant or provision to the contrary shall be null and void.”). Accordingly, Belo is entitled to summary judgment that said language is null and void, and that Belo holds its title to Unit B free from the purported exclusion. [Note 22]

III. THE UNIT A AND UNIT B AGREEMENTS

A. The Unit A Agreement

Although the Unit A deed from Good Bellas to RGC does not, itself, contain the same exclusion language as contained in the Unit B Deed from 175 Olde Canal to Belo, the Unit A Agreement executed in conjunction with Good Bellas’ conveyance of Unit A to RGC states that “it is expressly agreed to and understood by the Buyer [RGC] that intended to be specifically excluded from this sale [of Unit A] is the common land identified as .70 acres (30.772 square feet more or less) of building and parking impervious land identified as Phase II on a certain As Built Site Plan…” (Emphasis in the original.) The Unit A Agreement further recites that RGC will not have or retain any ownership or other interest in the excluded common land. Such an exclusion of common land is clearly in violation of both the Condominium Statute’s prohibition against severing interests in the common land from the ownership of the units and the express terms of the Master Deed, [Note 23] and thus the Unit A Agreement is unenforceable as a matter of law. See also Arcidi v. National Ass’n of Government Employees, Inc., 447 Mass. 616 (2006) (as a general rule, courts will not allow either party to an illegal contract to enforce against each other).

Therefore, RGC is entitled to summary judgment that the Unit A Agreement is unenforceable. Further, summary judgment is appropriately entered against Good Bellas, dismissing its counterclaims that RGC has breached the Unit A Agreement and is barred from challenging the enforceability of the Development Rights by waiver and/or equitable estoppel.

B. The Unit B Agreement

The Unit B Agreement between Belo, 175 Olde Canal, and Good Bellas, was executed after Unit B was conveyed to Belo by 175 Olde Canal. The Agreement recites, among other things, that Good Bellas and 175 Olde Canal collectively owned 100% of the Phase II common land excluded under the Unit B Deed and in the Unit A Agreement. The Agreement goes on to describe the terms of an agreed upon option for Belo to purchase said land and the Phase II Development Rights from Good Bellas and 175 Olde Canal. Although the option described in the Agreement expired on February 28, 2007, Belo now seeks a declaration as to the parties’ rights and obligations under the Unit B Agreement and, in particular, with respect to whether Belo is required to cooperate with 175 Olde Canal and Good Bellas by executing documents to cure any defect in the Development Rights for those entities’ benefit.

Like the Unit A Agreement, the Unit B Agreement was based upon the mistaken belief that 175 Olde Canal and Good Bellas owned the Phase II land in fee simple, as well as the Development Rights, without regard to the requirements of the Condominium Statute, the provisions of the Master Deed, or the express language in 175 Olde Canal’s and Good Bella’s Unit deeds. As discussed above, 175 Olde Canal and Good Bellas never owned more their undivided beneficial interests in the Phase II land as part of the Condominium Common Elements, and were required to convey said interests together with the conveyances of Units A and B. Moreover, 175 Olde Canal and Good Bellas now concede that they were mistaken in their original belief that they owned the Phase II land and Development Rights.

A contract is voidable if it is based on a mutual mistake as to material assumptions on which the contract was based. See Beaton v. Land Court, 367 Mass. 385 , 392 (1975) (“a court acting under general principles of equity jurisprudence has broad power to reform, rescind, or cancel written instruments, including mortgages, on grounds such as fraud, mistake, accident, or illegality.”). Here, there was clearly a mistake as to the assumptions on which the Unit B Agreement was based, i.e., ownership of the common land and the Development Rights. More importantly, however, the portion of the common land designated as Phase II could not have been excluded from the transfer of ownership of Units A and B without violating § 5(c). Therefore, summary judgment shall enter that neither of the parties to the Unit B Agreement has rights or obligations under said Agreement, as it is void and unenforceable as a matter of law.

IV. BELO’S ALTERNATIVE CLAIMS

Not raised in the Complaint, the Amended Complaint, or in any of the cross claims or counterclaims, but argued for the first time in Belo’s Motion for Summary Judgment, are the additional claims that, if not void ab initio, the Development Rights may not now be validly exercised because: (1) the provision in the Master Deed allowing an amendment to add Phase II would result in an unlawful severance of the common area in violation of § 5(c) of the Condominium Statute because Phase II would be located on part of the Condominium common land; (2) that the Master Deed violates § 5(a) of the Condominium Statute (“§ 5(a)”) because it does not sufficiently disclose the nature of the Development Rights retained by the Declarant; and (3) that the Development Rights have lapsed. None of the other parties objected to these late claims being incorporated into Belo’s and RGC’s summary judgment motions, but instead addressed the claims substantively in their opposition papers. For the reasons discussed in Section II of this Decision, I have rejected Belo’s first alternative claim that the exercise of the Development Rights would result in an illegal severance of common land. For the reasons discussed below, Belo’s two other alternative claims also fail.

A. Post-Phase II Ownership Interests in the Common Elements

Belo’s second alternative claim is that the Development Rights may not be validly exercised because the Master Deed violates § 5(a) of the Condominium Statute by purporting to reserve the right of the Declarant to create an unspecified number of additional phases and units, and by failing to provide projected adjustments to the percentage of ownership interests in the common area in the event such additional phases are created. While Belo’s contention is correct with respect to any rights purportedly reserved by the Declarant for future phases other than Phase II, the contention has no support in the facts or the law with respect to the reservation of the subject Development Rights (which, pursuant to the express terms of the Master Deed, pertain only to Phase II).

Section 5(a) provides that “[e]ach unit owner shall be entitled to an undivided interest in the common areas and facilities in the percentage set forth in the master deed.” (Emphasis added.) Here, Exhibit B to the Master Deed sets forth the percentages of the Phase I Unit Owners’ respective undivided interests in the Common Elements, both initially and upon the completion of Phase II of the condominium. Initially, Unit A is assigned a 40% undivided interest in the Common Elements, while Unit B is assigned 60%. Exhibit B also provides that after the addition of Phase II, Unit A’s interest will be reduced to 22% and Unit B’s interest will be reduced to 33%. Although the Master Deed does not specify the exact number of units to be developed in Phase II, Exhibit B to the Master Deed adequately describes the apportionment of the remaining 45% interest by assigning it to the Phase II units in the aggregate. This arrangement, which reflects the commercial uncertainty of the marketplace over time, allows the developer to determine the exact number of units and to apportion the 45% remainder as necessary.

Such an arrangement is not inconsistent with the requirements of Section 5(a), as it adequately describes projected changes in the assigned Phase I interests in the event Phase II is developed. Any Phase II amendment would then specify the percentages of the aggregate 45% ownership interest to be assigned to each of the individual Phase II units. It has long been recognized that condominiums have “peculiar characteristics,” Grace v. Brookline, 379 Mass. 43 , 52 (1979), so that even the condominium enabling statute allows the parties to work out various details through the master deed. See Tosney v. Chelmsford Village Condominium Ass'n, 397 Mass. at 687. [Note 24]

Although the Master Deed may not lawfully be interpreted to reserve to the Declarant the unilateral right to amend the Master Deed to create additional phases beyond Phase II, this does not adversely affect the validity of the Development Rights expressly reserved for Phase II. [Note 25] Therefore, summary judgment is appropriately entered against the Plaintiff and RGC that exercise of the Development Rights would not violate § 5(a).

B. Non-Exercise of Development Rights

Finally, Belo requests, as alternative relief, a declaration that the Development Rights (if not void ab initio) have already lapsed because they were not exercised within a reasonable period of time. Whether condominium development/phasing rights necessarily expire after a “reasonable time” due to non-exercise and, if so, how a reasonable time period should be determined, appear to be questions of first impression.

Belo cites Barclay v. De Veau, 384 Mass. 676 (1981), as support for the imposition of a “reasonable period of time” limit on the Development Rights, and argues that B&D’s failure to take any action to exercise the Development Rights in the twenty years following the recording of the Trust and the Master Deed was unreasonable, thereby resulting in the lapse of those Rights as a matter of law. But Barclay addressed only the circumstances under which a developer may retain control over the condominium by appointing trustees to the unit owners’ association, and whether protracted developer control over the management of the condominium conflicted with G. L. c. 183A. Barclay v. De Veau, 384 Mass at 677-678, 681. In that context, the Barclay Court noted that it is “arguable” that there may be a point in time when the developer/declarant must relinquish control of the condominium trust. [Note 26] Barclay did not address (and the Plaintiff has brought no cases directly on this point to the court’s attention) the altogether different circumstances of a declarant’s ability to exercise its reserved phasing rights after relinquishing control over the condominium management, or whether there is a time limit on such exercise. For these reasons, I do not find Barclay to control here.

Moreover, it was conceded, in the Barclay case, that a limitation of time was properly implied by the terms in the condominium trust instrument. Id. at 683-684. Under those circumstances, the Court observed that the “reasonable” period of time for the developer to retain control over the condominium management was the period necessary to carry out the supposed intentions of the parties, as determined by the nature of the contract and the parties’ probable intention as indicated in that contract. Id. at 684-686. The Court, however, declined to determine, as a matter of policy, that a time limit on developer control of a condominium was necessarily implicit, or should be imposed. Instead, the Court expressly limited its decision to the particular facts in that case. Id. at 684.

Here, B&D has conceded that the Development Rights should not last indefinitely, although it argues that a reasonable time limit on their exercise should be thirty years after the recording of the Master Deed, instead of the twenty years urged by the Plaintiff. Even if the “reasonable time” test used in Barclay were to be applied in this instance, however, there is nothing in the Master Deed to suggest that the Declarant intended to put a time limit on the use and implementation of the Development Rights. I have already concluded in Section I that the Declarant’s intent in reserving the Development Rights, as expressed in the Master Deed, was to vest in itself the present, nonpossesory property interests which will enable it (or its successors and assigns) to construct the Phase II buildings and improvements, and thereafter amend the Master Deed to incorporate Phase II into the Condominium and sell the Phase II Units. Given this intent, I am not persuaded that there is any basis for declaring that the Development Rights have expired, or will expire solely because of the passage of twenty or even thirty years.

As discussed in Section I of this Decision, the Development Rights include not only the right of the Declarant to unilaterally amend the Master Deed to incorporate Phase II into the Condominium, they also include all the appurtenant easement rights necessary to construct and sell the Phase II units. Generally, easements do not terminate as a result of mere non-use, no matter for how long a period of time, Delconte v. Sallourn, 336 Mass. 184 , 188 (1957); Lemieux v. Rex Leather Finishing Corp., 7 Mass. App. Ct. 417 , 421 (1979) and cases cited, and the Plaintiff has not met its burden here to establish that the Development Rights have otherwise lapsed. Compare Hamouda v. Harris, 66 Mass. App. Ct. 22 , 24, n.1 (2006) (the burden of proof was on plaintiff who affirmatively asserted that the easement had been extinguished). [Note 27]

The reservation of an easement creates a right to enter and use land of another for a definite purpose. Brown v. Sneider, 9 Mass. App. Ct. 329 , 331 (1980). In certain circumstances, an easement may be deemed extinguished once the purpose for the easement has been accomplished. See Akasu v. Power, 325 Mass. 497 , 501 (1950) (“[a]n easement may be granted which will terminate upon the happening of some particular act . . .”) (internal citations omitted). Here, however, the stated purposes for the reservation of the Development Rights (to enable B&D, its successors, or assigns, to construct Phase II, add it to the Condominium, and convey out the Phase II units) have yet to be accomplished. The Master Deed creating the Development Rights sets no time limit for accomplishing those purposes. It also expressly leaves relinquishment of the reserved Rights to the sole discretion of the Declarant (or its successors and assigns).

Declaring the Development Rights to have lapsed would be inconsistent with law and contrary to the intent expressed in the Master Deed. I note, also, that doing so would result in a windfall for the Plaintiff and RGC, as they would then (as the only owners of the Phase I units and the Common Elements) be free to proceed with their own expansion of the Condominium on the Phase II land, unencumbered by the reserved Rights.

Therefore, where the Master Deed contains no express or implied durational limit on the exercise of either the Appurtenant Easements or the Phasing Rights, where there are no facts in the summary judgment record to support a claim that the purpose for reserving the Development Rights has either been accomplished or is impossible to accomplish, and where a declaration that the Development Rights have lapsed would have an inequitable result, Plaintiff’s alternative request for declaratory judgment that the Development Rights have lapsed due to non-exercise during the past twenty-years must be denied.

CONCLUSION

I find that the material facts in this case are not in dispute. On the basis of those facts, and for the reasons discussed in this Decision, summary judgment shall enter declaring that:

(1) The Development Rights reserved in the Olde Canal Drive Condominium Master Deed, which include the right to unilaterally amend the Master Deed to incorporate the constructed Phase II into the Condominium, as well as the easements to construct Phase II of the Condominium and sell the Phase II units, were validly created and vested in the Condominium Declarant upon the recording of the Master Deed.

(2) The Development Rights have not lapsed.

(3) Ownership of the Development Rights was in the B&D Trustees at the time B&D terminated on June 23, 2009 and, as such, the B&D Trustees were required to convey such Rights to the B&D beneficiaries, pursuant to the terms of the Trust.

(4) The language in the Unit B deed to Belo, which purports to exclude from the conveyance the grantor’s (175 Olde Canal’s) interest in a portion of the land shown on the Site Plan as Phase II, violates G. L. c. 183A, § 5(c). The following language in that deed is therefore void and of no effect:

Specifically excluded from this sale is grantor’s right, title, and interest which is retained by grantor in .70 acres (30,722 sq. ft., more or less) of building and parking impervious land identified as Phase II on a certain As Built Site Plan entitled “Olde Canal Drive Condominium prepared by Robert P. Morris, R.P.L.S., 21 Carter Street, Tewksbury, MA” dated November 22, 1989 and recorded on December 21, 1989 in the Middlesex North District Registry of Deeds at Plan Book 171, Plan 125.

(5) The Unit A Agreement is void and unenforceable, and accordingly, both Good Bellas’ claim against RGC for breach of contract, and RGC’s request for attorney’s fees and costs are dismissed.

(6) The Unit B Agreement is void and unenforceable.

(7) All other claims, cross claims and counterclaims are DISMISSED.

Judgment shall enter accordingly.

Judith C. Cutler, Justice

Dated: February 2, 2010