KATHRYN SPENCER, ALISON CHILDS, MARK A. GIRARD and CHERYL J. GIRARD v. GABRIELLE E. SLAVIN

The plaintiffs, Kathryn Spencer ("Spencer"), Alison Childs ("Childs"), Mark A. Girard, and Cheryl J. Girard ("Girards") filed a complaint on April 9, 2009, seeking declaratory judgment under G.L. c. 231A and equitable relief under G.L. c. 185, §1(k) concerning a recorded restriction ("Restriction") affecting title to land owned by defendant Gabrielle E. Slavin ("Slavin"), located at 7 North Street, Montague, Franklin County, Massachusetts. The parcel owned by Slavin currently has one house built upon it, and an open field located to the north of the existing house. At issue in this litigation is whether the Restriction may be enforced judicially to prevent construction of a second dwelling on the field.

The Restriction was included in the deed which conveyed title of the property from Childs and her father to Slavin. Slavin now has expressed her intention to subdivide the parcel, allowing construction of another house on the open field. This had led the plaintiffs to bring this action, because they consider the building of a second house on a subdivided lot to be prohibited by the Restriction. Plaintiffs present four claims for relief. They seek: (1) a declaration that a purported release of the Restriction is null and void, and that the Restriction remains in effect; (2) a declaration that the Spencer and Girard properties are benefitted lands entitled to enforce the Restriction; (3) judgment allowing an extension of the Restriction pursuant to G.L. c. 184, § 27(b)(2); and (4) judgment enjoining the construction of a second house on the Slavin property for the period that the Restriction remains in effect, and reforming the Restriction to name the Spencer and Girard properties as benefitted lands. Defendant Slavin filed an answer to the complaint and a counterclaim on July 15, 2009. In her counterclaim, Slavin seeks declaration by the court: (1) that the Restriction in the deed from Childs to Slavin is not valid and enforceable because the Restriction does not comply with the requirements of G.L. c. 184, § 27 ("Section 27"); (2) that the plaintiffs lack standing to enforce the Restriction because they are not benefitted parties under Section 27; and (3) that Childs released the Restriction.

Slavin filed a motion for summary judgment on all counts. In the motion, Slavin presses the argument originally set out in the counterclaim, that plaintiffs lack the right to enforce the Restriction, because they fail to qualify as benefitted parties under Section 27. Slavin alternatively argues that the Restriction cannot be reformed to identify the plaintiffs as benefitted parties because: (1) the plaintiffs have failed to meet their burden of proof for reformation by failing to show that there was a mutual mistake or a mistake by one party known to the other; and (2) even if there was mutual mistake, the Restriction cannot be reformed because plaintiffs have not shown by full, clear, and decisive proof that the instrument failed to express the intentions of both parties.

Plaintiffs filed an opposition to Slavin's motion for summary judgment in which they contend that: (1) the plaintiffs do possess the right to enforce the Restriction as benefitted parties under Section 27; (2) the Restriction should be reformed to specify the Spencer and Girard properties as benefitted; and (3) Childs should not be allowed to release the Restriction to which she originally agreed, for reasons of public policy. After hearing, the court now decides the pending motions.

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The following material facts are properly before the court for its consideration based on materials submitted pursuant to Mass. R. Civ. P. 56(c) and are undisputed:

1. Defendant Slavin resides at 7 North Street, Montague, Franklin County, Massachusetts ("7 North Street").

2. On or about December 10, 1999 Slavin purchased the property at 7 North Street from Childs and her father, David L. Childs, by deed recorded in the Franklin County Registry of Deeds ("Registry") in Book 3575, Page 318.

3. Prior to the conveyance, Childs resided at 7 North Street. The co-grantor, David L. Childs, lived at the time in Connecticut.

4. At the time of the filing of this lawsuit, Childs resided at 625 Spring Street, Leeds, Hampshire County, Massachusetts. Upon their sale of the Montague property to Slavin, neither Alison Childs nor David L. Childs had any interest in the Slavin property, and Childs no longer owned any real estate adjoining the Slavin property or anywhere else in the town of Montague.

5. Plaintiff Spencer owns the property at 9-12 Center Street, Montague, Franklin County, Massachusetts more particularly described in a deed recorded in the Registry in Book 2135, Page 272.

6. The Girards own the property at 10 North Street, Montague, Franklin County, Massachusetts described in a deed recorded in the Registry in Book 2165, Page 229.

7. The Spencer property, shown as Lot 19 on the Town of Montague Tax Map Sheet No. 43, shares a common boundary with the westerly border of the Slavin property, which is shown as Lot 23 on Sheet No. 43 of the Town of Montague Tax Map. The Girard property, shown as Lot 39 on the Town of Montague Tax Map Sheet No. 43, is located directly across North Street from the Slavin parcel, to the northeast of it.

8. Prior to acquiring the property at 7 North Street, Slavin signed a purchase and sale agreement ("Agreement"), which was drafted by the lawyer representing Childs and David L. Childs in the transaction. Paragraph 29(1) of the Agreement stated that the parties agreed "to a covenant in the deed to be executed disallowing any dwelling to be built on the field located on the north side of the house, adjacent to the existing house."

9. The deed conveying 7 North Street contained the Restriction, which, consistent with the language of the Agreement, provided as follows:

Subject also to the following restrictive covenant. No dwelling shall be constructed or placed upon the premises on the field north of the existing house adjacent to the existing house, to the end that there shall never be more than one dwelling house upon the premises. This restrictive covenant shall remain in effect for the maximum period allowed under Massachusetts law, and shall be included in each and every subsequent deed of the premises.

10. On December 18, 2008, Slavin wrote to Childs about the possibility of releasing the Restriction.

11. On March 5, 2009, Slavin wrote to the Girards regarding the release of the Restriction.

12. Slavin did not contact Spencer concerning the release of the Restriction.

13. In March 2009, Childs, David L. Childs, and Slavin signed an agreement purporting to release the Restriction. This purported release ("Release") was recorded in the Registry in Book 5647, Page 183.

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"Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law." Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643-644 (2002); Mass. R. Civ. P. 56(c). "The moving party bears the burden of affirmatively showing that there is no triable issue of fact." Ng Bros., 436 Mass. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney General v. Bailey, 386 Mass. 367 , 371, cert. den. sub nom. Bailey v. Bellotti, 459 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law, and "an adverse party may not manufacture disputes by conclusory factual assertions." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros., 436 Mass. at 648.

I now decide the pending motions. After review of the summary judgment record, including all of the facts properly before the court pursuant to Mass. R. Civ. P. 56(c), and upon consideration of the arguments presented at the hearing, I determine that the uncontested facts and the governing law call for the court to grant defendant Slavin's Motion for Summary Judgment.

I. Plaintiffs Lack the Ability to Enforce the Restriction Because It is Not Stated to be for Their Benefit, as Required under G.L. c. 184, § 27.

The statute governing the subject restriction, G.L. c. 184, § 27, states in relevant part:

No restriction imposed after December thirty-first, nineteen hundred and sixty-one shall be enforceable:-

(a) unless the person seeking enforcement (1) is a party to the instrument imposing the restriction and it is stated to be for his benefit or is entitled to such benefit as a successor to such party, or (2) is an owner of an interest in benefitted land which either adjoins the subject parcel at the time enforcement is sought or is described in the instrument imposing the restriction and is stated therein to be benefitted.

Slavin contends that even a party to the instrument, to have standing to enforce the Restriction, must be named in the instrument as a benefitted party. Slavin further argues that: (1) Childs does not have standing to enforce the Restriction because the Restriction does not state that it is for the benefit of Childs; (2) Spencer and the Girards do not have standing because their properties are neither described in the Restriction, nor "stated therein to be benefitted;" (3) the statutory phrase "stated therein to be benefitted" applies, as a requirement of enforcement, to both adjoining property and land "described in the instrument;" and (4) Childs, Spencer, and the Girards cannot enforce the Restriction because neither they nor their lands are stated in the Restriction to be benefitted by it.

Plaintiffs, on the other hand, argue that Section 27 does not plainly bar their right of enforcement. Plaintiffs say the Section 27 should be interpreted as allowing adjoining landowners to enforce a restriction, whether or not the language of the restriction expressly identifies them or their adjoining holdings. Any ambiguity in a statute, plaintiffs argue, must be resolved in a manner that "minimize[s] the derogation of the common law." Plaintiffs claim that adjoining property does not have to be specifically mentioned in the instrument to be benefitted, because there is no provision in Section 27 that overrides the common law by adding legislatively an absolute requirement that land adjoining the locus must expressly be stated in the restriction to be benefitted. Therefore, plaintiffs contend, the common law doctrine long in place prior to Section 27's enactment remains in force. This doctrine allows a court to identify unnamed but intended enforcers of a recorded restriction based on facts and circumstances surrounding the giving of the restriction. Plaintiffs claim the right to employ this doctrine to show their ability to enforce the Restriction at issue in the case at bar.

The threshhold issue is whether the plaintiffs have the right to enforce the Restriction as benefitted parties, in light of the provisions of Section 27. In Brear v. Fagan, 447 Mass. 68 (2006), the Supreme Judicial Court addressed whether Section 27 supplants the common law rule which allowed enforcement by parties not expressly identified as benefitted in the recorded restriction. The court held in Brear that Section 27(a) requires that the instrument contain "an express identification of those persons or lands benefitted by a restriction, thus supplanting the common-law rule." Id. at 68. The Brear court, however, limited its holding to the instance before it, one in which enforcement was sought by the owner of land which did not adjoin the parcel burdened by the restriction.

Brear thus left open the question I now confront in this case: whether, following enactment of Section 27, property which actually adjoins the parcel burdened by the restriction also must be "stated therein to be benefitted." Id. at 73 n.5. Although declining to rule on this issue, the court in Brear set out two ways to read the statute, which it classified as "arguably ambiguous" "[d]ue to lack of punctuation": either (1) "§27(a)(2) exempts adjoining land from the requirement that it be 'described in the instrument' but still requires that an intent to benefit the adjoining land be stated 'therein';" or (2) "the intent to benefit be stated 'therein' refers only to non-adjoining property that must be 'described in the instrument,' because 'therein' refers to 'in the instrument,' which itself pertains only to non-adjoining property." Id.

I cannot agree with plaintiffs' position that the statute exempts adjoining land from the firm requirement of being stated, in the restriction, as benefitted. This interpretation contradicts the legislative history and the purpose surrounding the enactment of Section 27. An integral part of statutory construction is to construe the statute "so that effect is given to all its provisions," making no one part ineffective. Wolfe v. Gormally, 440 Mass. 699 , 704 (2004) (internal quotation marks omitted). When a statute is ambiguous, or contains language that is conflicting, the court must interpret the statute harmoniously with "common sense and sound reason" while also considering the legislative intent. Id.; see also Chase v. Trust for Public Land, Land Court Misc. Case. No. 329075 (March 11, 2008) (Long, J.) (order granting motion to dismiss) ("Statutes are to be construed 'in association with other statutory language and the general statutory plan' and as 'a harmonious whole consistent with the legislative purpose.'") (citations omitted).

Brear v. Fagan teaches us that the legislative purpose behind the enactment of Section 27 was to promote certainty in knowing who were, and who were not, parties with the right to enforce recorded restrictions. 447 Mass. 68 , 74 (2006). The common law rules [Note 1] addressed by the enactment of Section 27 suffered from the need to divine on an ad hoc basis the identities of owners who might or might not lawfully be entitled to enforce a restriction. This lack of a sharp line test led to uncertainty in titles and consternation for the conveyancing bar and the clients they represented. The Judicial Council, which reviewed and revised the proposed legislation ultimately codified as G.L. c. 184, §§ 26-30, determined that the common law rules concerning restrictions on land were inadequate and "not suitable in light of modern conditions." Id. Section 27 was enacted to address this felt need, to displace the fuzziness of the common law rules, replacing them with "clearer, more definitive, and more efficient methods of resolving the enforceability of land restrictions." Id. The legislature, agreeing with the Judicial Council that benefitted parties able to enforce a recorded restriction must be stated in the instrument as intended to be benefitted, adopted the version of Section 27(a) proposed by the Judicial Council. Id. at 75.

Adopting the plaintiffs' interpretation of the statute--that owners of adjoining land do not need to be named specifically in the instrument to be able to obtain enforcement--would controvert the intent of the legislature. Making adjoining landowners automatically benefitted would be at odds with a key purpose of Section 27, which is to "provide a way for landowners 'to remove or prevent the enforcement of obsolete, uncertain or unreasonable restrictions.'" Id. at 73 (quoting Thirty-Six Report of the Judicial Council, Pub. Doc. No. 144 at 81 (1960)). This interpretation also contradicts a principle of statutory construction which requires all parts of the statute to be given effect. Wolfe v. Gormally, 440 Mass. 699 , 704 (2004). Construing Section 27 as automatically benefitting adjoining landowners ignores the language of Section 27(a)(2) that the "person seeking enforcement" has to be "an owner of an interest in benefited land." G.L. c. 184, § 27. This "benefited land" then must either "adjoin[] the subject parcel at the time enforcement is sought or [be] described in the instrument imposing the restriction . . ." Id. The legislature purposely inserted the word "benefited" in front of "land." The statute does not simply say that the "person seeking enforcement" must be "an owner of a interest in land" which is either adjoining or described in the instrument. The statute requires that an owner of adjoining land, rather than in all instances being qualified to obtain enforcement based only on proximity, must also own land labeled by the restriction as "benefited," to be able to enforce the restriction. [Note 2] A contrary interpretation would make a part of the statute ineffective. Wolfe, 440 Mass. at 704.

Adopting plaintiffs' interpretation of Section 27 would frustrate the intent of the statute, which is to provide certainty as to which parties may and may not obtain enforcement of a restriction, Brear v. Fagan, 447 Mass. 68 , 74-75 (2006). Plaintiffs' approach would require an additional, fact-intensive inquiry as to whether various parcels of land itself are benefitted by the restriction. See G.L. c. 184, § 27 (stating that an owner has to have an interest in "benefited land."). Section 27 requires that adjoining land has to be "stated ... to be benefited," in addition to the requirement that it be adjoining or described in the instrument. See supra, at n. 2. Plaintiffs would have the court wander the obscured and twisting path of the common law rule, which requires inferences to be drawn from circumstances surrounding the creation of the restriction, to determine whether or not owners of particular parcels of land were intended to be benefitted. This approach, however, is in direct conflict with the driving purpose of Section 27, which is to create "clearer, more definitive, and more efficient methods of resolving the enforceability of land restrictions." Brear, 447 Mass. at 74. Plaintiffs' suggested reading of the statute puts it at odds with Brear v. Fagan's holding that Section 27 intentionally and firmly supplants the common law. Id. at 68. Section 27(a) "requires that the instrument contain an express identification of those persons or lands benefited by a restriction, thus supplanting the common-law rule." Id.

The interpretation I give to Section 27 results in advantages of clarity not just in those few cases which result in litigation about the availability of rights to enforce a restriction judicially. The interpretation I adopt promotes certainty on a much broader level in the conveyancing world, by relieving those who examine and certify titles from the great confusion that the common law rule engendered. The crisp answer provided by the interpretation of the statute for which the defendants advocate allows the real estate bar and transactional lawyers to give solid advice to their clients. The benefitted land either is or is not stated in the instrument to be benefitted. If not, the restriction is of no burden to the party who seeks to buy the locus, or to lend against it. A prospective buyer or mortgagee need not hypothesize about what arguments a court later might find persuasive in a lawsuit. Transactions in land need not be clouded by the risk that a court one day might find that the facts and circumstances surrounding the creation of a restriction prove that an unnamed owner was intended to have the benefit of the restriction. This result--certainty in day to day real estate conveyancing--was at the heart of Section 27's enactment.

Subsequent trial court decisions have adhered to the view that a restriction must expressly call out adjoining landowners as intended to be benefitted. In 2006, the Land Court addressed the question left open by Brear. Wolfe v. Gormally, 14 LCR 629 (2006) (Misc. Case. No. 274368) (Piper, J.). [Note 3] This court concluded that to comply with public policy, Section 27(a)(2) requires that adjoining land be expressly stated as benefitted in the instrument to be classified as "benefited land." Id. at 635. The court relied on the legislative history surrounding the enactment of Section 27 in its holding that benefitted land must be named in the instrument to eliminate the uncertainty in titles which had blossomed under the common law regime. Id. The purpose surrounding the enactment of Section 27, the court stated, was to erase the common law rules and replace them with "clearer, more definitive, and more efficient methods of resolving the enforceability of land restrictions." Id. (quoting Brear v. Fagan, 447 Mass. 68 , 74 (2006)) (internal quotation marks omitted). This rationale, the furtherance of certainty in land titles, required interpretation of the statute in the manner that, to secure judicial enforcement, "beneficiaries be identified in instruments imposing restrictions on land." Id.

Similarly, in Chase v. Trust for Public Land [Note 4] another justice of this court held that the plaintiffs did not have the right to enforce a restriction, because the restriction and its amendment did not "specifically identify" the plaintiffs' adjoining property as land to be benefitted. Land Court Misc. Case. No. 329075 at *13-14 (March 11, 2008) (Long, J.) (order granting motion to dismiss).

The Superior Court has given the same interpretation to Section 27. Rosenfeld v. Carty, No. WOCV200802525C (Mass. Super. Ct. Nov. 24, 2009) (order granting motion for summary judgment)(Kaplan, J.). This case involved plaintiffs who sought to enforce recorded restrictions on defendant's property based on the plaintiffs' status as abutters. The Superior Court held, however, that because the plaintiffs were not listed as beneficiaries of the restriction, the plaintiffs could not enforce it. The court emphasized that a contrary holding--interpreting Section 27 to allow adjoining landowners to enforce the restriction without the adjoining land having been mentioned as benefitted in the restriction--would require a fact-intensive trial to determine whether the adjoining land was considered "benefited" under Section 27. The court viewed this inquiry as contrary to the intent of Section 27, and held, as matter of law, that owners of adjoining land must be identified in the restriction as benefitted parties. The Superior Court's judgment in this case is under review in the Appeals Court, Rosenfeld v. Zoning Bd. Appeals of Mendon, No. 2010-P-0341.

In the case now before me, the Restriction contained in the deed of December 10, 1999, granting the property at 7 North Street from the Childs family members to Slavin, nowhere mentions Spencer or the Girards as benefitted parties. [Note 5] These parties' lands are nowhere described. Given this utter silence in the seminal instrument establishing the asserted right to restrict the use of Slavin's land, if this court were to confer on Spencer and the Girards a right enforce the Restriction, the court would be unfaithful to the best reading of Section 27 and the goals of its enactment. I decide as matter of law that Spencer and the Girards lack the ability to enforce the Restriction because they are not parties stated in the Restriction to be benefitted it. [Note 6]

Plaintiff Childs also cannot enforce the Restriction. This is so even though she plainly was a party to the deed which established the Restriction. This is because the Restriction does not state that Childs is a party to be benefitted. After Childs sold the property at 7 North Street to Slavin, she had no interest in the property at 7 North Street, no longer resided in Montague, and currently resides in Leeds. Section 27(a)(1) governs on this point. It which requires that a person seeking enforcement be a party to the instrument, and that the restriction "be stated to be for [her] benefit." This strict legislative requirement was followed in Brear v. Fagan. Even as to one who is an "original" party to the instrument creating the restriction, Section 27(a) "precludes enforcement unless the restriction is 'stated to be for his benefit.'" 447 Mass. 68 , 73 (2006). Even though Childs is a party to the Deed which imposed the disputed Restriction, she cannot enforce the Restriction because the instrument also must state that the Restriction is for her benefit, and it does not. [Note 7] Childs cannot even claim to be a benefitted party under Section 27(a)(2) as one whose land adjoins the burdened parcel, even were I to read the statute as plaintiffs urge, because she no longer holds any interest in 7 North Street. As matter of law, Childs lacks the ability to enforce the Restriction.

II. The Restriction Contained in the Deed Cannot Be Reformed.

The second issue I need to resolve is whether or not the Restriction can be reformed to add to it an identification of the lands of the plaintiffs as benefitted by the Restriction. Plaintiffs seek this alternative relief, pointing to a court of equity's power to grant a judgment of reformation based on mistake, fraud, or frustration of purpose. I decide that reformation is, on the uncontested facts presented by the summary judgment record, unavailable as matter of law.

A. The Restriction Cannot Be Reformed Based on Fraud or Mistake.

A deed can be reformed based on fraud, mutual mistake, or "mistake of one party . . . which is known to the other party . . . ." Ward v. Ward, 70 Mass. App. Ct. 366 , 369 & nn.4-5 (2007), but a deed will not be reformed based on mistake unless there is "full, clear, and decisive proof that the instrument failed to express the intent which both parties had in making it." New York, N. H. & H. R. Co. v. Plimpton, 238 Mass. 337 , 340 (1921). Mere mistake based on law, however, cannot be reformed. Ward, 70 Mass. App. Ct. at 370. This is because the parties to an agreement "are bound by the legal effect of what has really been agreed on, and cannot have the declaration set aside on the ground that they did not fully understand the legal effect of the language used . . . ." Id., citing Coolidge v. Loring, 235 Mass. 220 , 224 (1920). Courts have refused to grant reformation based on the parties' misunderstanding of the "legal effect of the language used." Id.

Slavin thus correctly takes the position that the Restriction cannot be reformed because there is no mutual mistake. On this record, plaintiffs have not shown that the Restriction fails to express the intent of both parties; there is no evidence of a mistake of one party known to the other party. Nor may the Restriction be reformed on the alternative ground of fraud. There is a similar dearth of evidence in the record which would allow a claim for reformation on this basis to advance any further.

B. The Restriction Cannot Be Reformed Based on Frustration of Purpose.

Plaintiffs claim the court ought to reform the Restriction because the language employed in the recorded 1999 Deed frustrates the Restriction's purpose. Reformation based on frustration of purpose occurs when, "after a contract is made, a party's principal purpose is substantially frustrated without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made . . . ." RESTATEMENT (SECOND) OF CONTRACTS § 265 (1981). An instrument can be reformed based on frustration of purpose when the performance "remains possible but the expected value of performance to the party seeking to be excused has been destroyed by [the] fortuitous event . . . ." Chase Precast Corp. v. John J. Paonessa Co., 409 Mass. 371 , 374 (1991) (quoting Lloyd v. Murphy, 25 Cal. 2d 48, 53 (1944)). Whether the purpose of the instrument was frustrated depends on "whether an unanticipated circumstance, the risk of which should not be fairly thrown on the promisor, has made performance vitally different from what was reasonably to be expected." Id. (quoting Lloyd v. Murphy, 25 Cal. 2d 48, 54 (1944)). The elements required successfully to demonstrate frustration of purpose, as outlined in the Restatement (Second) of Contracts § 265, cited to approvingly in Chase Precast Corp. v. John J. Paonessa Co., are: (1) the purpose that was frustrated is a principal purpose of the contract; (2) the frustration is substantial; and (3) the parties to the contract did not anticipate the occurrence of the frustrating event. 409 Mass. 371 , 375 (1994) (quoting RESTATEMENT (SECOND) OF CONTRACTS § 265 (1981)).

Plaintiffs argue that reformation based on frustration of purpose is proper because the purpose of the Restriction was to preserve the open land on Slavin's property, and that purpose will be frustrated if the Restriction is not reformed to identify Spencer and the Girards as benefitted parties. Slavin, in her submissions, does not to any degree discuss frustration of purpose and argues only that the Restriction cannot be reformed based on fraud or mistake

I conclude on the record before me that, as matter of law, the Restriction cannot be reformed based on a theory of frustration of purpose. The decisional law is clear that frustration of purpose requires the occurrence of an event, arising after the formation of the agreement, which subsequently frustrates the purpose of the contract. Chase Precast Corp. v. John J. Paonessa Co., 409 Mass. 371 , 374 (1991) (quoting Lloyd v. Murphy, 25 Cal. 2d 48, 53 (1944)); RESTATEMENT (SECOND) OF CONTRACTS § 265 (1981). In Chase Precast Corp. v. John J. Paonessa Co., a case involving a contract for the manufacturing of concrete median barriers, the Supreme Judicial Court held that application of the doctrine of frustration of purpose was proper, in part, because the defendant had no control over the plaintiff's choice to stop using concrete median barriers in the construction project. 409 Mass. 371 , 373, 375-76 (1991). This decision by the plaintiff constituted an intervening event that frustrated the purpose of the contract. Id. Similarly, in Mishara Const. Co. v. Transit-Mixed Concrete Corp., an intervening event occurred, a labor dispute, that plaintiffs argued made the performance of the contract impossible. 365 Mass. 122 , 124 (1974). The Supreme Judicial Court, however, did not decide whether performance was impossible because it held that whether the contract could be reformed based on impossibility of performance was a question for the jury. Id. at 126-27. The cases teach that frustration of purpose and impossibility of performance are considered "companion rule[s]," Mishara, 365 Mass. at 129. The Supreme Judicial Court in Chase said that "[b]oth doctrines concern the effect of supervening circumstances . . . ." 409 Mass. at 374 (emphasis added). Here, reformation based on frustration of purpose is not available to the plaintiffs. The doctrine requires the occurrence of an intervening event, which arises after the deal is struck, which then operates to frustrate a principal purpose of the contract. Facts are this kind are absent from the case now before me. There is no indication that any event occurred after the giving of the 1999 Deed which changed material circumstances relating to the Restriction and its enforceability by the owners of plaintiffs' land. Childs and Slavin entered into a purchase and sale agreement prior to Slavin's purchase of the property at 7 North Street on December 10, 1999; the agreement contained language contemplating the Restriction which came to be incorporated in the deed. No supervening event occurred between December 10, 1999 and the filing of this action on April 9, 2009 that affected the enforceability of the Restriction. Plaintiffs are unable to satisfy this central requirement of a case for reformation based on frustration of purpose.

What happened simply is that the Restriction was executed and recorded in a manner which failed to satisfy fundamental requirements of the governing statute, and the plaintiffs now regret the legal consequence of the manner in which the Restriction was drafted. Plaintiffs effectively ask the court to rewrite the Restriction provisions of the deed to Slavin, to rescue plaintiffs from the legal effect of the words used.

I have considered carefully whether or not the court has the authority to treat plaintiffs' reformation claim as an equitable request to reform the Restriction so that the alleged intent--that the Restriction be enforceable by them-- not be thwarted by the recorded deed's palpable failure to comply with the requirements of Section 27. I decide that this request, while certainly appealing at a surface level as a matter of fairness, as a matter of law cannot be allowed. Plaintiffs argue that the Restriction should be reformed because the parties to the instrument believed it was enforceable, but then proceeded with their transaction using an instrument which omitted essential elements necessary to make the Restriction enforceable. They ask the court to rewrite the document to correct its shortcomings and supply the ingredients necessary to make it enforceable by them. This argument is unsuccessful, at a minimum, because not understanding the statutory requirements of Section 27(a) and the consequences of noncompliance with the statute is a mistake of law for which reformation cannot be granted. See Ward v. Ward, 70 Mass. App. Ct. 366 , 370 (2007).

If reformation were available under these circumstances, the statutory goals of Section 27 would be thwarted by the court's post hoc insertion of vital provisions missing from the deed. The cases applying this statute show that our courts have not invoked their equitable power of reformation to relieve parties of noncompliance with the statute's requirements. In Brear v. Fagan, supra, reformation of the restrictions was not an issue directly confronted on appeal, but the Supreme Judicial Court certainly did not suggest that, to mitigate the consequence of strict application of Section 27, courts ought entertain requests to reform the instruments under scrutiny so as to supply absent provisions which would have rendered the documents enforceable. The Brear court noted that although its holding--that the failure to name benefitted parties made recorded restrictions unenforceable-- meant that noncompliance with these "technical requirements" of the statute leads to unintended unenforceability, that result must follow if the statutory purpose is to be achieved. 447 Mass. 68 , 76 (2006) ("It is true that the restrictions have been rendered unenforceable, notwithstanding the parties' presumed intent that they have some practical application, but that is because the instruments in question failed to comply with § 27(a).")(omission of emphasis). As in Brear, the case at bar involves parties who did not comply with the "technical requirements" of Section 27. See also Ward, 70 Mass. App. Ct. at 366 (stating the deed cannot be rescinded "based upon . . . [plaintiff's] unilateral mistaken belief as to its legal effect and consequence.").

I cannot order reformation of a restriction which fails to comply with elemental statutory requirements just because, as a result of that noncompliance, the Restriction may be unenforceable. While an outright error, such as a scrivener's error, certainly may supply good grounds for reformation, see Dwyer v. Dwyer, 452 Mass. 1030 (2008) (allowing reformation of a trust to "conform with the testator's intent."); Pond v. Pond, 424 Mass. 894 (1997) (reforming a trust to comply with the settlor's intent), a mistake of law, and a mistake about the legal effect of the words employed in the instrument, do not constitute proper grounds for reformation, particularly where the parties, even unknowingly, have employed a deed which misses the mark set by a corrective statute designed to free titles of nonconforming attempts to impose restrictions. [Note 8]

Because the Restriction fails to specify the benefitted parties (and so does not comply with the requirements of Section 27) the Restriction is unenforceable regardless of the intent of the parties. It is irrelevant whether or not the parties to the restriction intended it to be enforceable. In Brear, the Supreme Judicial Court noted that when a restriction is unenforceable the legislature has prevented the courts from employing other means to determine and vindicate the intent of the parties to the instrument. The legislature, to the contrary, has come down on the side of "precision and clarity." 447 Mass. 68 , 76 (2006). "[T]he Legislature has determined that the need for precision and clarity with respect to the enforceability of land restrictions is of paramount importance, and if an instrument creating restrictions fails to provide the requisite precision and clarity, alternative but less certain methods of demonstrating the intent of the parties are not to be employed." Id.

Similarly, in Stop and Shop Supermarket Co. v. Urstadt Biddle Properties, Inc., the Supreme Judicial Court held that regardless of the intent of the parties, the restriction in dispute there became subject to G.L. c. 184, § 23, and not G.L. c. 184, § 27, when the restriction was amended in 1983. 433 Mass. 285 , 289 (2001). Although the Stop and Shop court noted that the parties to the restriction would have inserted a time period in the restriction if they intended to invoke Section 27, the intent of the parties did not control the Court's decision. Id. at 291. The clarity of title goals of the statutory scheme were honored, albeit at the expense of what may well have been a contrary intention of the contracting parties. In the case before me, the Restriction cannot be reformed based on frustration of purpose.

C. Reformation Is Contrary to the Intent of Section 27

Said perhaps in a different way, the Restriction cannot be reformed to transform it into an enforceable instrument, because reformation would be contrary to the intent of Section 27. The purpose behind Section 27 is to "provide a way for landowners 'to remove or prevent the enforcement of obsolete, uncertain or unreasonable restrictions.'" Brear, 447 Mass. at 74. To accomplish this, all benefitted parties must be ascertainable on the face of the instrument. Absent a showing of fraud or mutual mistake (a showing simply not possible on the record here), reformation would thwart the intent of Section 27, by allowing courts to make changes or additions to the roster of parties intended to have the benefit of the Restriction. The Restriction serves its purpose by standing of record in the Registry, there providing notice to the world whether a parcel of land is or is not restricted in its future use. If reformation could later convert a deed restriction from unenforceable to enforceable, the dominant purpose of the restriction statutes would be stymied. After the fact reformation would remove the certainty the statute insists upon, in determining which parties or lands are or are not benefitted by a restriction. And of course, courts long have followed the policy that restrictions on land are disfavored and are to be "construed against the grantor and in favor of freedom of alienation." Stop & Shop Supermarket v. Urstadt Biddle Properties, Inc., 43 Mass. 285 , 290 (2001). The court's obligation to serve legislative intent, coupled with the policy of reducing restriction of land titles, compels denial of the plaintiffs' reformation request.

Given my determination that the Restriction was unenforceable by any of these plaintiffs from the time of its recording, I need not reach the alternative requests to adjudicate the effectiveness of the purported release of the Restriction, nor any purported extension of it. I will direct entry of a judgment declaring that none of the plaintiffs may enforce the Restriction, and denying their requests for injunction.

Summary judgment is GRANTED in favor of the defendant, and DENIED to the plaintiffs. Judgment accordingly.

Gordon H. Piper

Justice

Dated: January 18, 2011.