This matter is before the court on the motion for summary judgment filed by the plaintiff, Louis Petrozzi (Petrozzi or plaintiff), who owns land located at 4 Glenneagle Drive in Mashpee, the title to which, along with that of all the surrounding land and of all the land relevant to this case, has been registered and confirmed by this court pursuant to G.L. c. 185. Petrozzis land (Locus) is that shown as lot 618 on this courts plan 11408-47. Defendant Peninsula Council, Inc. (Council or defendant), a Massachusetts corporation with a principal place of business in Mashpee, purports to operate as an association for homeowners living in the New Seabury Development (New Seabury), which includes the neighborhood, Greensward East, where Locus is located.
The plaintiff moved for summary judgment in this case asserting that, as matter of law, his title was encumbered wrongfully when Council registered with this courts Barnstable land registration district (District) a document known as the Universal Village Declaration, (Final UVD), and caused the Final UVD to be noted on the certificate of title issued to Petrozzi with respect to the Locus. The Final UVD is registered in the District as Document No. 1029711. Petrozzis certificate of title (Certificate) for the Locus is Certificate No. 178112, issued by the District. The Certificate shows the Final UVD to have a date of January 1, 2006, and to have been registered and noted on the Certificate on March 30, 2006.
Plaintiff contends that the Final UVD, which purports to impose restrictions and conditions upon various parcels of New Seabury land, should not be effective or enforceable against the fee title he holds to Locus. Petrozzi argues that previously established restrictions on the Locus had expired, by their terms, and pursuant to statute, including the provisions of G.L. c. 184, §§ 23 and 27, before Council registered the Final UVD, which Petrozzi contends is, as matter of law, ineffective to extend or revitalize those already expired restrictions. Petrozzi further argues that the Final UVD did not operate to impose any new restrictions effective against his land. He says that the Final UVD, given its provisions, the manner of its execution and presentation for registration, and the state of the title as reflected in the registration system, should not have been accepted for registration and noted on his Certificate. He seeks an order to the District directing that the Certificate be altered to strike the notation of the Final UVD, and to clarify that the title to the Locus stands free and clear of the encumbrances purportedly imposed by the Final UVD. The defendant asserts that the Final UVD properly encumbers title to the Locus, makes it subject to the restrictions recited in the Final UVD, and that the Final UVD should stand on the Certificates memorandum of encumbrances as now noted there.
On June 19, 2007, Petrozzi filed a complaint to remove the apparent encumbrance of the Final UVD from the title to his property, as set forth in the Certificate. On August 22, 2007, Council answered the plaintiffs complaint, denying any lack of effectiveness of the Final UVD, and alleging that the restrictions it recites do validly encumber the title to Locus. The plaintiff moved for summary judgment. Council filed written opposition and plaintiff filed a reply brief. I heard argument of counsel, requested supplementation of the record, which counsel provided, and I now decide the motion.
Based on the summary judgment record, the following facts appear to be without material dispute:
1. Petrozzi purchased 8 Glenneagle Drive in Mashpee on or about September 27, 2005. Locus is improved by a single family home. The deed by which Petrozzi acquired title was registered with the District September 30, 2005 as Document No. 1014627, and the District issued the Certificate to Petrozzi as of that date.
2. At the time of Petrozzis purchase, the Certificate showed on its memoranda of encumbrances Document No. 92618, entitled Declaration May 7, 1964, Greensward East, Of New Seabury, dated May 7, 1964 and registered on November 27, 1964, running in favor of Greensward East (Declaration). The Declaration, as registered in 1964, was made by Popponesset Corporation (Declarant), as declarant, and executed and acknowledged on its behalf. This Declarant in 1964 owned Locus and much other surrounding and nearby land with registered titles in the area of Mashpee now constituting the New Seabury development. The Declaration recites that Declarant was the owner of fifty-nine parcels of registered land, specified in the Declaration, and in it collectively referred to as GREENSWARD EAST, OF NEW SEABURY. The parties agree that the Declaration was properly executed, acknowledged, and filed for registration, and as a matter of title was, upon the Declarations registration in 1964, a valid encumbrance on the Locus title in accordance with the provisions of the document. The Declaration established designated reserved areas (Article II), set up an architectural review committee (Article III), and created a golf easement (Article IV). In Article V, the Declaration imposed as a common scheme upon each Building Lot and Reserved Area various restrictions. These, among other things, limit and control the uses to which the lots may be put, and regulate improvements on the restricted land, which included what is now Locus. Article VI imposed additional restrictions not as a common scheme upon each Building Lot (including what is now Locus), including those which controlled, and gave to a committee various review and approval rights over, construction and improvements of and on the restricted lots.
3. In Article XIII, called Duration of Restrictions, Liens and Easements, the Declaration provided that the restrictions in its Article V, entitled Common Scheme Restrictions, shall continue until January 1, 1986, and may be extended for two periods not exceeding twenty (20) years each, by agreements duly executed and filed for registration prior to January 1, 1986, or the then current extension period, by the owners of record at the time of such registration of not less than two-thirds (2/3) of the Building Lots. Article XIII went on to say that The restrictions set forth in Article VI and the provisions for upkeep set forth in Article VIII shall continue until January 1, 2006.
4. On December 30, 1985, an instrument (1985 Notice) entitled Notice of Extension of Restrictions, dated December 14, 1985, was recorded in the Barnstable Registry of Deeds. This Document was executed and acknowledged by someone named Francis J. Cenedella. Below his name on the signature line appear the words GREENSWARD VILLAGE CHAIRMAN. This notice, under a caption reading Peninsula Council Inc. GREENSWARD VILLAGE New Seabury Mashpee, Massachusetts, said that Pursuant to Article XII of document #92618 noted on Certificate of Title 9093 and Certificate of Title #32984 as amended, the undersigned hereby certifies that the owners of more than 2/3 of the building lots in said village have voted to extend the provisions of Article IV until January 1, 2006. It appears from the summary judgment record that the 1985 Notice was registered with the District as Document No. 383016 on December 30, 1985. There is no notation concerning the 1985 Notice on Petrozzis Certificate. Indeed, the memoranda of encumbrances on the Certificate show no entries between 1966 and 2003. (Counsel since argument have provided the court with a copy of Transfer Certificate of Title No. 32984 (1964 Certificate), originally issued June 26, 1964 to Popponesset Corporation. The 1964 Certificate shows the registration of the 1985 Notice. It was against the 1964 Certificate that notation of the Declaration was made when it was filed for registration on November 27, 1964. The 1964 Certificate at one time covered the Locus as part of the land included within the 1964 Certificate, and of course subject to the Declaration. The 1964 Certificate bears a notation, made on November 22, 1966, of the registration of a deed, Document No. 109047, to Ian S. Murdock et ux; the premises conveyed by that deed is shown by the 1964 Certificate to be Lot 618 on Plan 11408-47, which is Locus. The deed from Popponesset Corporation to Ian S. and Helena Murdoch, dated October 20, 1966, has been included in a supplemental filing made by counsel. When that deed of Locus was noted on the 1964 Certificate, it was cancelled by the District as to Locus, and a new certificate issued for Locus, noted as Certificate No. 39026. Petrozzis current Certificate says on its face that Locus is also subject to the matters set forth or referred to in Certificate of Title No. 32984, in so far as the same are now in force and applicable.)
5. In 2005, Council circulated to all of the properties in New Seabury preprinted forms (Ballots) with the heading GREENSWARD VILLAGE Universal Village Declaration for New Seabury August 2005 BALLOT." The form of the Ballots asked for the signatories to declare that they were all the owners of a Lot, whose number was left blank. The form stated that the ...Village Declaration ... will expire on December 31, 2005. The Universal Village Declaration for New Seabury modifies and extends the above Declarations beginning January 1, 2006 and expires on December 31, 2025. The Universal Village Declaration for New Seabury shall include such declarations and all amendments and supplements hereto and when filed with the Registry of Deeds shall modify and extend said Village Declarations. The form of the Ballots, presented two choices from which the signatory was to select, by checking one off: YES, The Universal Village Declaration for New Seabury SHALL BE adopted effective January 1, 2006 to December 31, 2025; or NO, The Universal Village Declaration for New Seabury SHALL NOT be adopted but the current Village Declaration should be extended through December 31, 2025. There is in the record a version of this form of the Ballots which appears to be signed by Petrozzi (Completed Ballot), and containing in the indicated spaces his name and address, the correct reference to his lot number on the correct registered land plan, and the document number of his registered deed. On the Completed Ballot, the first, Yes choice is checked off. Petrozzi contends he has no memory of executing the Completed Ballot. Council appears to have circulated, along with the Ballots, some draft version of a document (Proposed UVD) with a resemblance to the Final UVD, but different from it in many significant respects. The Completed Ballot includes no date on which it was signed, although it includes at the top the August 2005 date used on the Ballot form. Petrozzi, of course acquired his title September 30 of that year, and his Certificate number is on the Completed Ballot, so the only fair inference is that the Completed Ballot dates from no earlier than that date.
6. Council submitted the Proposed UVD for review by the Barnstable Register of Deeds, John F. Meade (Meade), who by statute is this courts Assistant Recorder. Meades response, a letter (Letter) dated January 6, 2006, contains a variety of comments on the submitted form of the Proposed UVD. This Letter says to counsel for defendant, among other things, that [w]e assume that the reason this document is being proffered is that the restrictions and covenants governing the various properties in New Seabury have expired or are expiring and this is an attempt to re-impose, as much as possible, a common scheme of restrictions on said properties. Assuming that is the case our main concern is that this document as drawn, rather than impose a new scheme of restrictions, appears to be a backdoor attempt to extend existing restrictions and covenants without complying with the requirements of the various Massachusetts General Laws relating to extending the term of said restrictions. After laying out a catalog of concerns with the draft of the UVD reviewed in this letter, it goes on to say: [a]ssuming the above issues can be resolved, the formalities of registration will require the following: There must be a signature page for each owner assenting to the declaration. The signature page must include a reference to the lot, plan and certificate of title for the property in question and the page must be signed by all record owners of said certificate, with at least one signature acknowledged before a notary public.
7. On March 30, 2006, Council registered the Final UVD with the District. The Final UVD was noted on, among many others, the Certificate standing in the name of Petrozzi. Both parties admit that the Final UVD is not identical to the Proposed UVD that was circulated in 2005 when Council circulated the Ballots. The version of the Final UVD in the summary judgment record is twelve pages in length, and appears not to be signed or acknowledged. Counsel confirmed for the court, in response to its inquiry after argument on the summary judgment request, that this is the form in which the District registered the Final UVD. It is entitled UNIVERSAL VILLAGE DECLARATION and recites in section 1.1 that it is made by Peninsula Council, Inc. In section 1.3, the Final UVD provides: This Universal Declaration is intended to be a new declaration and not an extension of any prior existing declarations. This Universal Declaration shall have no effect on any prior declarations.
8. The Final UVD refers in section 2 to an architectural review committee, which the Final UVD indicates has been established by the Declarations and the Master Declaration...., and whose members may be appointed and replaced by the Council at any time. In section 3, the Final UVD lays out a series of restrictions, described as having been updated and ... imposed on the Villages (including, without limitation, the Lots), but not as a common scheme.... Designated parties, including the committee and the Council, are said to have enforcement rights as to these restrictions, which require, among many other things, committee approval for a wide variety of structures, improvements, and building work, both new and alterations. The restrictions in this section 3 are wide-sweeping and cover and regulate not only initial construction and alterations, but also excavation, landscaping, building materials, items kept outdoors, signs, maintenance, subdivision, garages, and use of the reserved areas shown on Land Court plans. Section 4 of the Final UVD are said to be imposed upon the Villages for the benefit of each Lot that has been voluntarily subjected to this Universal Declaration by signatory Ballot attached hereto... The section 4 restrictions further regulate the use of the land subjected to them, covering such matters as fuel tanks, animals, garbage, nuisances, drainage, exterior lighting, storage bins, and storage of unregistered vehicles. Other sections of the Final UVD deal with charges to be paid for regular and special maintenance items, including fees to be collected by the Council.
9. The record does not show that the Final UVD was approved by any writing signed by Petrozzi other than, if in fact signed by him, the Completed Ballot, the one of the Ballots in the record which appears, on its face at least, to have been executed by him. This document, without dispute, predates the preparation of the Final UVD following receipt of the Assistant Recorders January 6, 2006 letter, which final version of the UVD, as stated above, was registered March 30, 2006. The notation on Petrozzis Certificate for this Final UVD shows the date of the document as January 19, 2006.
***** Summary judgment is appropriate where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law. Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 643-644 (2002); See Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 716 (1991); Community Natl Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56 (c). In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the nonmoving party. See Attorney General v. Bailey, 386 Mass. 367 , 371, cert. den. sub nom. Bailey v. Bellotti, 459 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law, and an adverse party may not manufacture disputes by conclusory factual assertions. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros., 436 Mass. at 648.
The summary judgment request filed by plaintiff requires me to decide whether or not the Final UVD was, as to plaintiffs Locus, inadvisedly accepted for registration by the District. Considering the record in its entirety, I am convinced that there are in dispute no facts which are material to the resolution of this question as matter of law. I decide that, as to plaintiffs Locus, the Final UVD ought not have been filed for registration in the form tendered to the District, and is entitled to be stricken from plaintiffs Certificate.
First, I consider whether or not, on undisputed facts in the record before me, the provisions of the 1964 Declaration which burdened the land subject to it (including what is now Locus) with restrictions, covenants, and conditions, remained in force at the time the Final UVD was submitted to the District for registration. The focus of this inquiry is on the restrictions set out in Articles V and VI of the Declaration. I determine that those restrictions certainly had expired by the time of the Declarations registration on March 30, 2006.
Since 1887, Massachusetts law has limited to thirty years the duration of restrictions on property which by their terms are unlimited as to time. G.L. c. 184, §23. See, Stop & Shop Supermarket Co. v. Urstadt Biddle Props., Inc., 433 Mass. 285 , 288 (2001). For recorded restrictions which do have a stated duration, later statutory provisions, effective at all times relevant in this case, govern. See generally, G.L. c. 184, §§ 26 et seq. With exceptions not here implicated, under this statutory scheme, restrictions with a stated term longer than thirty years are not to be enforced judicially after thirty years, unless provision for extension is made in the instrument, and the procedures specified in the statute are followed. G.L. c. 184, §27. If they are, then further sequential periods of enforceability, each not to exceed twenty years, may be established, extending the period of enforceability up to the maximum duration set in the seminal instrument.
No restriction imposed as part of a common scheme... is enforceable thirty years after imposition of the restriction unless an extension . . . is recorded before the expiration of the thirty years or earlier date of termination specified in the instrument . . . and names or is signed by one or more of the persons appearing to own the subject parcel at the time of such recording, and in the case of such recording, twenty years . . . has not expired after the recording of any such extension without the recording of a further like extension. . . G. L. c. 184, § 27 (b)(1). To make a statutory extension of restriction effective against a subject parcel, the notice or extension must, where the parcels title is registered, be noted on the certificate or certificates of title thereof.... G. L. c. 184, § 29. No notice given under section twenty-seven or twenty-eight shall... entitle anyone to enforce a restriction if at the time of recording of the notice the restriction is for any reason no longer enforceable. Id.
Petrozzis Locus indisputably was encumbered in 1964 by the Declaration which was properly registered as to the title to the Locus in that year. The Declaration included provisions setting durations for the provisions of various of its Articles, and in some cases also providing for renewal or extension. According to the Declarations Article XIII, the restrictions set forth in Article V were to continue to January 1, 1986, and optionally were able to be extended for two periods of twenty years each. The Declaration stated that the restrictions set forth in Article VI shall continue until January 1, 2006, and included no provision for extension as to this term.
The Certificate has a gap in its memoranda of encumbrances which is unbroken by any filed document. The Certificate reflects that between 1966 and 2003, no encumbrances were registered that are noted on the Certificates memoranda of encumbrances. The restrictions at issue in this case which emanate from the registration of the Declaration in 1964, would have expired not more than thirty years after their imposition. They either were unlimited as to time, and would have become unenforceable in 1994 after thirty years, with no opportunity for extension under the statute, see Stop & Shop Supermarket Co. v. Urstadt Biddle Props. Inc., supra, 433 Mass. at 288- 289, or they would have expired by operation of G.L. c. 184, §27 at the end of thirty years, in the event no extension instrument compliant with the statute had been registered against the Certificate prior to expiration of the initial thirty-year period imposed by section 27.
When a registered document establishing a restriction specifies a limit to the period during which it may be enforced, the statutes governing restrictions and their duration do not countenance extension of enforceability of those restrictions past their maximum stated term. Filing a notice of extension cannot operate to extend the prescribed term of the restriction beyond its outer limit. Filing a notice of extension is merely a prerequisite to the continued enforceability of a restriction that at the time remains in effect. After the expiration of the established term, the restriction may not be extended further using the notice of extension approach laid out in the statutes. Once the stated term of a restriction has expired, the prior filing of a notice that would extend the period of enforceability accomplishes nothing, because there is nothing left to enforce. Brear v. Fagan, 447 Mass. 68 , 77 (2006) quoting Stop & Shop Supermarket Co., supra, at 285.
The restrictions set forth in Article VI of the 1964 Declaration expired by statute thirty years afterwards, in 1994. The Declaration provided no mechanism for any extension of these restrictions. Even if, for some reason not to me apparent, the provisions of G.L. c. 184, §27 did not bring about the end of the enforceability of these Article VI restrictions in 1994, in no event whatsoever could these restrictions be enforceable after the date set for their expiration in the Declaration, January 1, 2006.
The restrictions of Article V ran, according to Article XIII, until January 1, 1986, with the possibility of extension for two periods each of twenty years. But only if there had been a timely and statutorily-adequate registration against the Certificate of a valid extension document, would the Article VI restrictions have lasted beyond January 1, 1986. That is the plain meaning of Article XIII. And the record shows that this did not happen.
Council claims that a notice of extension filed in 1985 satisfies the extension requirements of the Declaration and of G. L. c. 184, § 27, and served as an effective extension of the Article V restrictions. The record, including the presence in it of the 1985 Notice, might permit the indulgent inference that Council circulated ballots to the New Seabury community, and secured the votes necessary, to authorize extension of some aspect of the Declarations wide-ranging provisions. But the record, even read most favorably to Council, does not justify a conclusion that Council would be able at trial to show that the 1985 Notice was in proper form to effectively extend any restriction under the Declaration which remained in force at the time of the 1985 Notice. As matter of law, the only available inference is to the contrary.
The 1985 Notice states that it is executed pursuant to Article XII of the Declaration. That article, entitled Waiver of Breach, does not establish any restriction, nor provide for the extension of any restriction. Moreover, the 1985 Notice certifies only that the owners of more than 2/3 of the building lots in said village [Greensward Village] have voted to extend the provisions of Article IV [of the Declaration] until January 1, 2006. Article IV of the Declaration concerns itself with a reserved easement associated with a certain golf course use, and does not restrict the use of land in any meaningful manner. Thus, the 1985 Notice does not, by its plain terms, constitute a notice of extension which might have been contemplated by Article XIII of the Declaration, and certainly is not a notice of extension within the meaning of the controlling statutes.
As matter of law, Councils reliance on the 1985 Notice is unavailing. Where an instrument imposes more than one restriction, a notice or extension may, if it so specifies, apply only to a particular restriction. . . G. L. c. 184, § 29. Whatever restriction(s), if any, were the target of the 1985 Notice, by its terms, limited as it was to Article IV, the 1985 Notice did not operate as an extension of the restrictions under the Declaration which were at that time able to be extended by statutory notice. The language of instruments purporting to extend and alter restrictions of record needs to be construed with care, to further the legislative goals of the restriction statutes. Those enactments serve to notify owners and other interested parties as to the clear status of title to property, and to enable them to remove or prevent the enforcement of obsolete, uncertain, or unenforceable restrictions. Labounty v. Vickers, 352 Mass. 337 , 348 (1967), quoting from Judicial Council of Massachusetts, Thirty-Sixth Report, p. 81. The certainty purposes of these statutes would be disserved by allowing the 1985 Notice to extend the duration of the actual restrictions created under the Declaration and given by it the opportunity for extension. I reject Councils characterization of the wording in the 1985 Notice as typographical error. To permit rereading of the 1985 Notice, to reach a different provision of the 1964 Declaration than stated, would be at odds with the need to have firm and plain recordings clearly showing the extension of restrictions which the statutes otherwise render unenforceable. This is all the more so when the 1985 Notice has been in place for decades, without any amendment to it executed and registered, and without any request for judicial alteration of the 1985 Notices words. I conclude that the 1985 Notice was fatally flawed and legally incapable of extending those of the restrictions established under the Declaration which remained available for voluntary extension at the time of the 1985 Notice.
The statutory requirements pertaining to the execution and recording or registration of instruments imposing restrictions on land are in some important respects technical and demanding. These requirements, however, serve the overall certainty of title goals of the statutes, and are entitled to receive respect, even if in doing so a court may reach a result at odds with the intention of the crafters of the restrictions and following documents. Failure to heed technical requirements of various statutes may operate to frustrate the original intent of the parties, but in such cases, the Legislature has determined that some other purpose should outweigh the parties intent. Brear v. Fagan, 447 Mass. 68 , 76 (2006). It is well established that restrictions on land are disfavored. Patterson v. Paul, 448 Mass. 658 , 662 (2007). Strict adherence to the requirements established in G. L. c. 184 §§ 26-29 is essential to extend restrictions against real property. The failure to comply with the statutory requirements, by not registering a proper notice, may have kept the restrictions from being extended as to the Locus when their terms ran out, but this is an outcome contemplated by the statutes.
I also note, but do not directly rely upon, the fact that the record does not show how the 1985 Notice ever was registered against the then outstanding certificate of title for what is now plaintiffs Locus. The Certificates memoranda of encumbrances does not show any registration of the 1985 Notice, or of any other instrument, in the relevant time period. All the record, as expanded by counsel post-argument, would show, even read most favorably to Council, is that the 1985 Notice was registered against the 1964 Certificate on December 30, 2005.
Massachusetts law requires that any amendment to a deed or instrument that changes the duration of a land use restriction must also be recorded to make it fully enforceable during its new duration. Stop & Shop Supermarket Co., v. Urstadt Biddle Props., Inc., 433 Mass. 285 , 291 (2001). The instrument extending restrictions must be indexed in the grantor index under the name of the owner of record of the real estate affected at the time of recording. G. L. c. 184, § 25. For registered property, the statute has the following requirement: No notice or extension of restriction ... shall be effective against a subject parcel ... if its title is registered, unless the notice or extension is noted on the certificate or certificates of title thereof. G. L. c. 184, § 29.
I am concerned that, so far as the record in this case reveals, the 1985 Notice does not appear to have been noted against the predecessor certificate of title for Locus then issued for it by the District. (That earlier certificate is not in the record, and though this court might take judicial notice of it as part of the Commonwealths land registration records, I have not.) The only inference I can draw is that the 1985 Notice, when registered, only was noted on a single certificate of title, the 1964 Certificate. The difficulty, of course, is that that 1964 Certificate plainly had been cancelled as to Locus when the first deed out of Locus was registered in November of 1966. This is how the registered land system is supposed to operate. See G.L. c. 185, §65.
The requirement of G.L. c. 185, §29, quoted above, to have a notation of a notice of extension of restriction placed on the certificate of the subject parcel, would seem to insist that the actual notation of the extension notice be placed on the transfer certificate of title outstanding for Locus in 1985, and not on the 1964 Certificate, which had, as to Locus, been cancelled many years earlier. This reading of section 29's requirement would seem best to promote the fundamental purposes of the registration system. See, eg., Doyle v. Commonwealth, 444 Mass. 686 , 690 (2005): [T]he underlying purpose of title registration is to protect the transferee of a registered title.... (quoting Wild v. Constantini, 415 Mass. 663 , 668 (1993) and Kozdras v. Land/Vest Props., Inc. 383 Mass. 34 , 44 (1980)). See also, G.L. c. 185, §46, ...every subsequent purchaser of registered land taking a certificate of title for value and in good faith, shall hold the same free from all encumbrances except those noted on the certificate.
In this case, however, the Certificate issued to Petrozzi does include, on its face, the notation that Locus is also subject to matters set forth or referred to in the 1964 Certificate, in so far as the same are now in force and applicable. Petrozzis Certificate also shows, on its memoranda of encumbrances, the original 1964 Declaration. I am not able to say, as a matter of law, that the caveat on the face of the Certificate, referring him to the 1964 Certificate, would not have put on Petrozzi the responsibility of scouring the 1964 Certificate and its multitudinous memoranda of encumbrances, nor that in so doing he would not have come, eventually, to the registration of the 1985 Notice.
The practice of keeping active for decades a certificate of title which initially covered large tracts of land, but out of which large numbers of lots have been conveyed (resulting in many partial cancellations of the original certificate), may serve the understandable purpose of providing a convenient single place to make note of subsequent documents affecting the many lots which emerged from the parent certificate. The alternative--to make notation of each of these subsequent documents on each of the certificates issued for the individual transferred lots--is a laborious and expensive one, and likely to burden not only the parties to the transactions involved, but also already financially-strapped Districts. But the consequence of this approach is that the goal of the registration system, to have a single place to look to know the state of the title to an individually-owned lot (the lots own outstanding certificate) is not well-served by requiring each person interested in the titles to in some cases hundreds of lots to winnow through a voluminous certificate which, as to the lot in question, long ago was cancelled. Because of the caveat on the face of the Certificate which points to the 1964 Certificate, I am unable on the record before me to conclude, as matter of law, that the manner in which the 1985 Notice was noted on certificates of title in 1985 (namely, by noting it only on the 1964 Certificate) was fatal to the extension of restrictions set up in the Declaration as to Locus. But that does not alter the fact that the 1985 Notice was not, for the reasons I have given, an effective notice of extension of the relevant restrictions set up under the 1964 Declaration.
I conclude that the restrictions set up under the 1964 Declaration had expired by the time the Final UVD was registered on March 30, 2006.
This conclusion--that at the time the Final UVD was registered there remained in force no restrictions against Locus title imposed by the Declaration--is pivotal to the resolution of not only the pending summary judgment motion, but of the case. The determination that no restrictions remained in force and effect as to the Locus on March 30, 2006 guides me in deciding whether, as to the Locus, the Final UVD was correctly accepted for registration in the form propounded to the District by the Council.
Once the Locus title became free of the restrictions imposed by the 1964 Declaration--by the passage of time and the failure properly to extend those restrictions--Locus title could not become encumbered again by restrictions (either of the same import, or different in their terms) without consensual imposition of restrictions by the owner of the Locus, as demonstrated by a written document executed with the requisite formalities. The fundamental distinction is between the extension or continuation of restrictions still in force, which, in appropriate circumstances may be accomplished without a writing signed by the owner of the land to remain restricted, on the one hand, and the subjection of unrestricted land to restriction, which requires the participation of the landowner, on the other.
It is undisputed that, with the possible exception of the Completed Ballot, there is nothing which Petrozzi executed in connection with the purchase of Locus or thereafter which would have the effect of imposing restrictions on the Locus registered title. And the Completed Ballot falls short of what would have been needed to impose restrictions of any tenor on the title to Locus. (I assume away, for purposes of this Rule 56 motion, Petrozzis contention that he might not even have signed the Completed Ballot--he says he does not remember doing so--and I accept for purposes of the pending motion Councils inference that the Completed Ballot was knowingly signed by Petrozzi). Petrozzi argues that the Final UVD, put to record as to Locus on March 30, 2006, needs to be considered by the court as an instrument imposing new restrictions on his land, and thus required the formalities of form and execution demanded of any instrument imposing restrictions on land for the first time. Petrozzi says that those formalities include, among other things, execution of the instrument creating the restriction by him, as the party to be charged, and that the instrument be acknowledged by him, the sole registered owner of Locus, before being accepted for registration and noted on the Certificate.
To encumber Locus with new restrictions, Council needed to have registered with the District, and to have had noted on the Certificate, an instrument signed by Petrozzi, as the party to be charged.
The Final UVD, the instrument the Council says it is entitled to enforce against Petrozzi and his land, is, without controversy, an instrument not signed by Petrozzi anywhere within its four corners. Indeed, in the form submitted to the court, the Final UVD appears not to have been signed by anyone at all.
Nevertheless, the record does allow me to infer that when presented to the District for registration in March, 2006, the Final UVD was accompanied by some quantity of Ballots which had been executed by some of the homeowners whose land was the subject of the Final UVD. The record is far from clear about the details of these accompanying Ballots: how many of these signed Ballots were presented, which lots they concerned, and whether they were presented with either the Yes or No choices checked off. The affidavit of counsel for Council J. Mark Haney, who handled the registration of the Final UVD, suggests that all but one of the signed Ballots he presented at the time lacked any acknowledgment. In his affidavit, Haney describes how he acknowledged the signature of Thomas Caston on a Ballot. That Ballot (Caston Ballot), part of the record, shows that Thomas J. Caston and Joan M. Caston, as owners of Lot 895 on Land Court Plan No. 11408-60, in Greensward Village of New Seabury, signed the Ballot in the form circulated with the date of August 2005, and checked off the Yes alternative. A certificate by Mr. Haney, as Notary Public, dated January 19, 2006, certifies that on January 19, 2006 Mr. Caston appeared before Mr. Haney and acknowledged to [him] that Mr. Caston had signed [the Ballot] voluntarily for its stated purpose. This is the only Ballot which on this record I may conclude was presented with the Declaration with a certificate of acknowledgment attached.
The record also contains Document No. 1101887 (Huggins Assent), registered by the District on November 24, 2008, well more than two years after the registration of the Final UVD, and over a year after this litigation commenced. The Huggins Assent is signed and acknowledged by Maureen C. and Reginald J. Huggins, as registered owners of Lot 418 on Land Court Plan No. 11408-35, under certificate of title number 48843, a property identified as having the address of 22 Greensward Circle. In the Huggins Assent, the Hugginses hereby assent and agree to all of the terms and conditions of the Universal Village Declaration for the Villages of New Seabury dated January 1, 2006 and recorded with the Barnstable County District of Land Court as Document No. 1029711.
I must consider whether the record shows that the Final UVD, registered by the District on March 30, 2006, was presented to the District in the form that the law required for it to be effective and to be entitled to registration. I have the form of the Final UVD as registered, and I grant the inference that when presented it was accompanied by the Completed Ballot, the acknowledged Caston Ballot, and some unknown other quantity of Ballots which in some fashion had been executed by some of the lot owners. I take into account that the Huggins Assent was registered in November, 2008. Evaluating the record in its entirety, and tilting all reasonable inferences in the direction of Council, as the party opposing summary judgment, I still am compelled as matter of law to conclude that the Final UVD lacked what was required to make it effective and for it to be filed for registration as to Locus.
It is important to remember what was required to constitute an effective instrument placing valid restrictions on the Locus, given the state of the title on March 30, 2006. Because the prior restrictions established under the 1964 Declaration no longer were in force, a new instrument, imposing new restrictions in the correct manner, was necessary. To the extent that Council contends that the Ballots which were presented to the District showed a requisite vote by the correct number of lot owners, that contention misses the point of what was needed by then.
If, as may well have been the case, the Ballots were circulated in the summer of 2005 by the Council to the owners of lots in the New Seabury development to solicit their willingness to extend the duration of certain restrictions initially put in place by the Declaration in 1964, the Ballots might have served that purpose adequately, but only if the restrictions themselves had remained in force. The casting of votes to extend the vitality of restrictions due to expire by statute might well be accomplished by a vote, and in appropriate cases that voting might be done by paper ballot. That the ballots collected for that reason lacked acknowledgments would not, in and of itself, make those votes ineffective.
But because the restrictions--as they relate to Locus--all had lost their force by the time the Final UVD was registered, and, indeed, by the time the Ballots were being circulated in the summer of 2005, the Final UVDs restrictions affecting Locus needed more than a vote to encumber Locus title. They needed the signature of Petrozzi on an instrument affirmatively granting and imposing restrictions on the Locus title, and it is that kind of instrument which needed to be registered by the District and noted on his Certificate.
Ballots, or other manifestations of owner assent, may well not be required from each owner of each lot that is subject to restrictions, when all that is happening is the extension of still effective restrictions. While restrictions remain in force, the governing documents and statutes may afford the opportunity for perpetuation of the restrictions on the say so of fewer than all of the owners of the restricted land. See G.L. c. 184, §27(b). In such a case, the statute requires that a specified percentage join in the extension, and that a specified form of notice be recorded to memorialize that important fact. The statute speaks in terms of notices of restriction in these circumstances, because the operative event is not the creation of fresh restrictions, but the decision by the requisite quorum of owners to keep the existing restrictions going.
Once the restrictions lapse, however, the vote-driven mechanism of the statute no longer controls the steps required to reimpose the former restrictions, or to impose new and different restrictions. Once the restrictions cease to be enforceable, they must be imposed anew in a manner no different than required for creation of binding restrictions in the first instance. It cannot seriously be suggested that owners of some, but not all, of the lots in a subdivision might convene a meeting, give notice to all the lot owners, and in a legally enforceable way for the first time place restrictions on all the lots titles, including as to those who opposed the restrictions burdening their land. Ones property right to hold title to land free of nonconsensual restrictions does not yield because a majority of neighbors decide that new restrictions, however reasonable or well-advised, ought to burden all the lots in the neighborhood.
Petrozzis signature was needed to make the Final UVDs restrictions binding on his Locus. The record only contains one possible source of that signature: the Completed Ballot. I conclude that, under the circumstances shown by the record, there is no way the Completed Ballot lawfully satisfies the requirement that Petrozzi have executed the Final UVD as it is registered with the District.
I have indulged the inference that the Completed Ballot was presented to the District at the time the Final UVD was accepted for registration. The opening paragraph of section 4 of that document, entitled Restrictions, says that the restrictions listed in that section are imposed upon the Villages for the benefit of each Lot that has been voluntarily subjected to this Universal Declaration by signatory Ballot attached hereto.... Even if the Completed Ballot, along with various other Ballots signed by other lot owners, accompanied the Final UVD when it was registered on March 30, 2006, that is insufficient to make the restrictions in the registered document binding on Locus title.
As a threshold matter, the form of the Completed Ballot does not show itself to be a valid, current execution by Petrozzi of the Final UVD. As I have said, the Completed Ballot is on its face something materially different than a signature page to the form of the Final UVD lodged in the District. The Completed Ballot is, as its caption asserts, a ballot, a manifestation of a vote cast by Petrozzi. It shows what he did when he signed the Completed Ballothe voted. Those are the words used: We the undersigned vote:. The words used do not bespeak contemporaneous execution of an instrument of grant or conveyance of real estate interests in his Locus. The words are the prospective and collaborating words an owner participating in a vote would employ: YES, The Universal Village Declaration for New Seabury SHALL BE adopted effective January 1, 2006 to December 31, 2025. It is difficult to construe the Completed Ballot as anything more than an expression of assent by one of many owners within a group of lots, showing his willingness, as one member of the class of owners of restricted land, to modify and extend the Village Declaration (the Declaration put in place in 1964) by adopting a new Universal Village Declaration. The trouble is, of course, that this premise of the Ballots circulated in the summer of 2005, that the Declarations restrictions remained in force and would expire at the end of that calendar year, was false. There were no restrictions then in place (at least as to Locus), and so the voting model employed was inadequate to the true taskimposing new restrictions on the lots.
In ruling on a summary judgment motion, I must be open to any reasonable inference that flows in the direction of the opposing party. I thus might consider whether, despite its failings as a conventional form of execution of a declaration or grant of restrictions, the Completed Ballot somehow works as a flawed but adequate written manifestation of Petrozzis execution of the Final UVD. Even though it was solicited as a vote ballot, and not as a more conventional formal counterpart signature page to the Final UVD, does the Completed Ballot sneak by as a sufficient substitute for the execution by Petrozzi that was required when the Final UVD went to record on March 30, 2006?
The answer is no. Even were the wording, form and likely purpose of the Completed Ballot to be charitably overlooked, there is a larger problem with it. The Completed Ballot cannot serve as a rough-hewn form of signature page to the Final UVD, because the version of the Universal Village Declaration which might be said to have been approved by Petrozzi in the Completed Ballot was a different document than the one which the District registered, the Final UVD. There are many differences between the two, and many of those differences are more than minor. If the analysis is that the Final UVD was presented to the District with the Completed Ballot as a surrogate for the required signature page signed by Petrozzi, it cannot be proper for the signature be as to a version of the document which was not in existence when Petrozzi signed what he signed, and which differed in material respects from the version presented for registration in March, 2006. Documents are not uncommonly signed in counterparts, with multiple signature pages, but the fundamental requirement is that the counterparts all must be identical in substance. Here the record is clear that the Final UVD did not even come into being until after the Letter from Meade, dated January 6, 2006; the Final UVD was altered to respond to the Letters apt concerns. The record also demonstrates that Petrozzi signed the Completed Ballot, which spoke prospectively, if incorrectly, about the upcoming expiration of the 1964 Declaration on December 31, 2005. There is no real dispute that the Completed Ballot was solicited and signed on the basis that the Proposed UVD was to be the operative document.
While a signature page that is part of one instrument ought not be redeployed to show execution of another instrument, certainly not without the express consent of the signer, no matter how slight the differences between the two, in this case the differences between the Proposed UVD and the Final UVD are significant. The distinctions start, in a revealing way, with the titles. The Proposed UVD was labeled on its table of contents as a Restatement of Universal Village Declaration. The Final UVD drops Restatement from its title. This reflects a fundamental difference between the two versions. The Proposed UVD was set up, as its first section says, to be an amendment of previous declarations, including the Declaration, and was made by Council as assignee of the original Declarations declarant. The Final UVD, according to its first sections, was simply declared by Council in its own right, and was intended to be a new declaration, not an extension of any prior declarations, which it left unaffected.
The essential distinction between the Proposed UVD and the Final UVD, reflected at various points in the two documents, is that the Proposed UVD takes as its guiding assumption that the prior Village-level declarations, including, with respect to Greensward East, the 1964 Declaration, remained in force and available to be extended for a further term. This assumption, which I have determined was not (at least with respect to Locus) well-founded, drives the way the Proposed UVD would have operated if it were to have been put in final form and recorded. Because the Proposed UVD assumes that all the lots subject to it are then currently bound by prior restrictions, and would continue to be bound following execution of the document for further sequential twenty-year terms, it was put before the lot owners on the premise that not all of them had to execute the Proposed UVD to make its restriction terms binding on all lots. What the Proposed UVD set out to do was to restate prior restrictions already in force, and then provide further life for the reconstituted restrictions for a new initial term of twenty years from registration, with two more twenty-year extension periods to follow. It is difficult to see how this approach would have jived with the statutory regime governing restrictions, a point brought home to Council by the Letter sent by the Assistant Recorder when he reviewed the draft of the Proposed UVD. It does not seem, for example, that the use of the voting mechanism, which would allow fewer than all lot owners join in, would authorize prior restrictions to be amended and revised as to non-signing lot owners, even if those restrictions had remained in force at the time. The voting mechanism, even when it is available, allows extension of soon to expire restrictions in their original formulation, not amendment of them.
It also does not seem that without the execution of new restrictions by all lot owners, the term of prior restrictions could be set up to be extended, as to non-signing lot owners, for extension terms that would expand the duration of the original restrictions beyond the maximum number of years set for them in the initial document. And yet that is what the Proposed UVD set out to do, and that is the basis on which it sought votes from lot owners.
The Final UVD, on the other hand, is clear that it set out new restrictions, establishing for them new initial and extension terms. In the opening paragraph of section 4 of the Final UVD, entitled Restrictions, the document registered by the District makes clear that the restrictions are imposed upon the Villages for the benefit of each Lot that has been voluntarily subjected to this Universal Declaration by signatory Ballot attached hereto.... This language, changed from the earlier draft Proposed UVD, makes the point that only those lot owners who sign on with the necessary vote get the benefit of the new restrictions. As I have said, given the state of the title on March 30, 2006, without a given lot owner such as Petrozzi signing on to a new set of restrictions applicable to his or her lot, the lot would lack not only the benefit of, but also not be burdened by, the new restriction regime going forward.
This fundamental distinction between the Proposed UVD and the Final UVD explains why the Completed Ballot cannot be what Council says it was--the functional equivalent of a formal execution of the Final UVD by Petrozzi. Even putting aside the form of the Completed Ballot, which makes it difficult to characterize it as an execution by Petrozzi of any document, the Completed Ballot would at most have been his execution of the Proposed UVD, an instrument different in substance and approach from the Final UVD actually registered. It is not reasonable to infer, as Council urges the court to do, that an owner in Petrozzis circumstance would have the same willingness to execute the Proposed UVD, tendered on the basis that a sufficient number of votes would continue pre-existing restrictions in force as to all lots, as he or she would have to sign the Final UVD, which could not bring about that result. The Completed Ballot ought not have been used by Council to manifest Petrozzis execution of the Final UVD, and its acceptance for registration and notation against the Certificate should not have happened.
This reason underlies my ruling granting Petrozzis summary judgment motion. I do need, however, to address an alternative ground urged by Petrozzi on which I do not rely. I do not conclude that, as matter of law, the Completed Ballot was ineffectual as to Petrozzi because he did not acknowledge it, and the Final UVD to which Council says the Completed Ballot relates. Petrozzis contention on this point is logical and appeals to the general sense of fairness of the court, but appears to be foreclosed by long-standing Massachusetts decisional law.
The signature on the Completed Ballot (which for the purpose of this motion I take to be that of Petrozzi) is neither acknowledged nor witnessed. G. L. c. 183, § 29 requires that No deed shall be recorded unless a certificate of its acknowledgment or of other proof of its due execution, made hereinafter provided, is endorsed upon or annexed to it, and such certificate shall be recorded at length with the deed to which it relates. Acknowledgment is necessary to enable a deed to be recorded; a certificate of acknowledgment furnishes formal proof of the authenticity of the execution of the instrument when presented for recording. McOuatt v. McOuatt, 320 Mass. 410 , 413 (1946); Strother v. Shain, 322 Mass. 435 , 437 (1948).
In the circumstances here, where the Final UVD served to impose new and different restrictions on land no longer encumbered by expired prior restrictions, the lack of a required acknowledgment of the Final UVD ought have prevented the registration of the Final UVD as to the Locus, so that Locus title would not be treated as legitimately restricted by the restrictions ostensibly imposed under section 4. The question is whether acknowledgment by Petrozzi is required, or whether it is enough that there was acknowledgment by another owner of another lot being subjected to the Final UVD.
G.L. c. 183, §29 provides that the acknowledgment of a deed or other written instrument required to be acknowledged shall be by one or more of the grantors or by the attorney executing it. The parties square off on the meaning of the legislative requirement for acknowledgment by one or more of the grantors. Petrozzi contends that the statute requires his acknowledgment of the Final UVD as an absolute prerequisite to its registration, because he is the sole owner of Locus, and is the only person who could be the grantor as to Locus. Council says that the acknowledgment requirement was satisfied in this instance by the acknowledgment of the Final UVD by another owner of a different lot, also being subjected to the documents provisions. Council argues that either or both of the Caston Ballot and the Huggins Assent supply the required acknowledgment, inasmuch as Mr. Caston and both Hugginses acknowledged those respective papers.
It is true that if the Final UVD was to have been accepted for registration, and to be noted on the Certificate, it required some manner of acknowledgment compliant with G.L. c. 183, §30. On the surface, and perhaps as a matter of first impression, Petrozzis objection--that owners of other lots should not be allowed to speak for him by way of acknowledgment--has much to commend it. Neither Mr. Caston nor the Hugginses have any title to Locus, and it would seem overreaching to allow them to make acknowledgment on Petrozzis behalf as to the voluntary nature of Petrozzis execution of the Final UVD--a point very much in contention in this litigation.
Massachusetts law, however, long has held to the contrary. As early as 1828, the Supreme Judicial Court decided that the acknowledgment of a deed by one of two grantors sufficed to allow its recordation, and to make the instrument binding against both grantors, even though the two grantors each separately owned distinct parcels. Shaw v. Poor, 6 Pick. (23 Mass.) 85 (1827). Even though there was no acknowledgment at all by any owner of the contested parcel, the instrument was operative against its title. As to the distinction made between the registry of a deed from two or more joint tenants, or tenants in common, and that of the deed in question, there seems to be no authority for it. The notice is the same, whether the grantors are seised as tenants in common of the whole land conveyed, or are separately seised of distinct parts. Id., at 88. The statute at the time of Shaw, which insisted, in the words of that court, that acknowledgment of deeds shall be by the grantors, or one of them, or by the attorney executing the same... id., at note 2, does not differ substantively from the version which applies to the case at bar.
No decision of our appellate courts has departed from this holding. Later cases characterize it as a liberal judicial construction given to the word grantor as it now appears in... G.L. c. 183, §30. Gordon v. Gordon, 8 Mass. App. Ct. 860 , 864 (1979). In this court, the conclusion has been reached that the statute is not satisfied when the only acknowledgment comes from a single party, ostensibly a grantor in a deed signed by two individuals, where the party who supplied the acknowledgment did not need to join in the deed, and in fact passed no title of his own by doing so. In Zona v. Zona, the deed transferring a life-estate from Rosemarie Zona to her son, William Zona, was executed by both mother and son, but was acknowledged only by William Zona. Because William Zona, who had joined in the deed along with his mother as a putative grantor, was in fact the recipient of the life estate interest, and was not the party transferring any interest in the property, he could not sign as a grantor of the life interest. His acknowledgment was insufficient to register the deed which transferred only the life interest. Zona v. Zona, 16 LCR 11 (2008) (Reg. 22902-S-2005-06-001) (Piper, J.). The deed transferring the life estate interest from Rosemarie Zona, the only party truly granting an interest in the property, was invalid without her acknowledgment under G. L. c. 183, § 30, and the registration of that deed by the district was improvident and ordered undone by the court.
In the case now before me, however, there is no doubt that the grant of the restrictions in the Final UVD by Mr. Caston was required if the document was to have imposed those restrictions on the lot he owned with his spouse. This fact puts the analysis on the question of the adequacy of the acknowledgment like that contained in the Caston Ballot in a different light than in a case like Zona, in which the fatally missing acknowledgment would have come from the only party to the deed actually granting an interest.
Until the holding in Shaw is disturbed by an appellate court, I am unwilling to part from the rule announced in that case and long followed in the Commonwealth. In reliance on this rule, many instruments have been recorded over many years on the strength of an acknowledgment of only one grantor, even though the instrument also was signed by, and transferred interests of, other owners of separately owned land. I adhere to the holding in Shaw even though I harbor doubt whether that holding would be the one the Supreme Judicial Court would reach in the case now before me were the SJC to consider the question presented in Shaw for the first time. I understand that there are important differences between the facts in Shaw and those in the case at bar. In Shaw, the two grantors were closely related, father and son, and the father had previously owned both parcels before conveying one of them to his son, the grantor who did acknowledge the deed. 23 Mass. at 86. In the case at bar, there were hundreds of lot owners whose lots, each separately owned, were all sought by Council to be encumbered by the Final UVD, and there is no apparent relationship between any of the separate landowners. It seems far less fair to charge hundreds of unrelated owners of separate lots with a single act of acknowledgment by only one lot owner.
I also recognize that our case concerns registered land, and Shaw was decided many decades before the Torrens system of land registration came into being in Massachusetts in1898. The logic behind the holding in Shaw does not seem to apply with much force to land whose title has been registered by this court under G.L. c. 185. In Shaw, the court rested its ruling on the fact that the deed, signed by father and son as owners of two separate parcels, but acknowledged only by the son, was adequate to convey both, because it had been properly accepted at the registry of deeds based on the sons acknowledgment as to his conveyance of his land. Noting that for this reason the deed was regularly recorded, id., at 87, the court went on to conclude that when a deed is regularly recorded, all the publicity required [by the registry act] is given, and the intention of the [recording] statute is fully satisfied. Id. Because the sons acknowledgment got the deed of both grantors recorded at the registry, and noted in its indices, presumably against both grantors, the recording of the deed put the world adequately on notice as to the conveyance of interest by the father, even though he did not acknowledge the deed.
In the arena of registered land, however, the records are kept differently, with a separate certificate of title issued for each separate parcel of registered land, to which one needs to resort exclusively to determine the state of encumbrances upon the parcels title. See generally G.L. c. 185, §§ 48 et seq. It is not obvious how the logic of Shaw, which depends on the general publicitysupplied by the recording of a deed of multiple grantors, translates to the registered land system, in which this courts registry districts issue a separate certificate of title for each separately owned piece of land. I do doubt whether the question considered by the Shaw court would receive the same answer if raised for the first time in a case where registered land titles were involved.
Notwithstanding these doubts, I am unwilling in the case before me to depart from the rule in Shaw. I am mindful that the registration act insists that, to the greatest degree possible, [a]n owner of registered land may convey, mortgage, lease, charge or otherwise deal with it as if it had not been registered. G.L. c. 185, §57. I am loath to rule in a way which sets up a different standard for the acknowledgment of multi-grantor documents involving registered land than would be required of recorded land instruments. I thus do not accept Petrozzis argument that the Completed Ballot is as matter of law unable to serve as an execution by him of the Final UVD solely based on its lack of an acknowledgment. I consider it legally possible for the acknowledgment requirement of G.L. c. 183, §30 to have been met by either the Caston Ballot, the Huggins Assent, or both of those acknowledged documents. [Note 1]
I conclude that Petrozzis motion for summary judgment is well founded, and that he is entitled as matter of law on this record to judgment in his favor that the Final UVD, as it relates to title to Locus, was not entitled to be registered with the District and noted on Petrozzis Certificate, from which it is to be stricken. No relief affecting any other party or land has been sought in this action, and none is to be provided by the court in this proceeding.
Petrozzis motion for summary judgment is GRANTED.
At least some of this action is most properly characterized as one for correction or alteration of the Certificate and other records of the District, under G.L. c. 185, §114, a proceeding which in the ordinary course would culminate, should the plaintiff prevail, in an order of this court to the District directing the required changes. I will afford counsel the opportunity to advise me on both the form of judgment I will direct be entered in this Miscellaneous case, as well as of the order the court will issue to the District. Proposed forms are to be submitted by counsel within twenty-one days.
Gordon H. Piper
Dated: April 14, 2011.
[Note 1] That is not to say, however, that either the Caston Ballot or the Huggins Assent are models of how the execution of an instrument of conveyance ought to look. The Caston Ballot suffers from the same difficulties as the Completed Ballot signed by Petrozzi, which I have ruled, under the uncontested circumstances surrounding its execution, as matter of law fails to pass muster. The Huggins Assent, while a more conventional exemplar of how a multi-party real estate instrument might be signed, is of dubious significance given the lateness of its execution and registration, two years after the Final UVD was registered, and over a year after this litigation commenced. I appreciate that instruments may be acknowledged validly well after they are signed, but the Huggins Assent is clouded by its obvious provision to respond to Petrozzis judicial challenge to the registration of the Final UVD. I consider the Caston Ballot and the Huggins Assent only as indicating that there are in the record some papers showing acknowledgment by some owners of lots subject to Final UVD, and to lead me to the conclusion that the Final UVD is not necessarily fatally flawed because some but not all of those lot owners made some manner of acknowledgment.