MISC 83167

October 24, 1977

Norfolk, ss.

Sullivan, J.


Arthur Leazott, Sr., the plaintiff, invokes the jurisdiction of this Court pursuant to the provisions of G. L. c. 231A and c. 240 § 10A for a determination of the validity of restrictions imposed by the Town of Braintree, the defendant, in the conveyance to him of a parcel of vacant land on Elmlawn Road in said town. This parcel is shown as Lot 10 on a plan entitled "Braintree Terrace, Braintree, Mass.", dated June 1923 by George H. Wetherbee, Jr. recorded with Norfolk Deeds as Plan No. 561 of 1923 in Book 1574, Page 132. Lot 10 also is shown on a 1925 revision of said plan. The plaintiff looks to G. L. c. 184 § 30 and c. 231A for relief.

The parties have entered into the following stipulation as to the applicable facts:

"The parties herein stipulate that after full and complete hearing of all evidence which both parties would bring before the Court on the issues raised by the pleadings, the following would be a fair and accurate summary of facts:

1. That the plaintiff, Arthur Leazott, Sr., is the owner being seized and possessed of an estate in freehold in land situated in the Town of Braintree, said County and Commonwealth; being Lot 10, Blk. 3 on a Plan entitled "Braintree Terrace, Braintree, Mass. ", June, George H. Wetherbee, Jr., C.E.

2. That the said Lot 10 was the subject of a Taking by the Town of Braintree on December 15, 1931, for the non-payment of taxes in the year 1930, assessed to one Harry P. Chadwick.

3. That subsequent to the said Taking the Town of Braintree caused to be filed in the Land Court a Petition against the said Harry P. Chadwick to foreclose the tax lien acquired in the said Taking; that thereafter there was entered on February 12, 1936, in Land Court Case No. 7239 a Decree forever foreclosing and barring all rights of Redemption by the said Harry P. Chadwick in Lot 10.

4. That by instrument dated October 15, 1962, and recorded in Norfolk Registry of Deeds Book 4027, page 73, the Town of Braintree, acting by and through its Board of Selectmen, conveyed the said Lot 10 to the Plaintiff.

5. The Deed of the Town of Braintree contains the Restriction "that no dwelling house or unit shall be erected or placed upon any portion of the premises conveyed."

6. That no person other than the Town of Braintree is benefited or claims any benefit resulting from the existence of the said Restriction.

7. That the Town of Braintree is not the owner of any interest in any of the parcels of land adjoining the said Lot 10.

8. That the said Lot 10 is six thousand two hundred twenty feet (6,220) in area, more or less; that the nine closest parcels to said Lot 10, namely: lots 8, 9, 11 and 12 of Block 3 and Lots 23 thru 26, inclusive of Block 1 range in area from 4,830 square feet to 6,770 square feet.

9. That the said Lot 10 is in an area zoned "Residence B" which pursuant to the Zoning By-Laws of Defendant permits: "1.) Detached one family dwelling; 2.) Two-family dwelling in any dwelling containing more than six rooms ... "; that abutting and, without exception, all dwellings in the vicinity of said Lot 10 are single family residences.

10. That Elmlawn Road on which said Lot 10 is located is a paved public way in the Town of Braintree; that both water and sewerage facilities exist thereon."

The restriction, unlimited as to time, will expire in thirty years from the date of the deed to the petitioner, or October 15, 1992. G. L. c. 184 § 23. It understandably presents a bar to the ready sale of the lot. The plaintiff, therefore, argues that the restriction is not of "actual and substantial benefit to a person claiming rights of enforcement" within the meaning of c. 184 § 30 which proscribes enforcement or declaration of enforcement of a restriction unless this statutory test is met and that accordingly it should no longer be enforced.

G. L. c. 184 § 26 introduces into the solution of the problem two other questions, the "resolution of which are not free from doubt. This section initially provides that "[a]ll restrictions on the use of land or construction thereon which run with the land subject thereto shall be subject to this section and sections twenty-seven through thirty" with certain exceptions. The exceptions include restrictions held by any "Govermnental body" including within this definition any political subdivision of the Commonwealth; for this exception to be operative, however, compliance must be had with Section 33. The notice provisions of the latter section do not come into play for thirty years from the recording of the instrument imposing the restrictions. Therefore, for present purposes the restrictions imposed by the grantor in the deed to the petitioner are not subject to the provisions of Section 30 if in fact they run with the land, another qualification interposed by Section 26. It would seem quite clear that they do not.

This Court recently considered the question in The Bargain Center, Inc. v. Howard Johnson Company, Registration Case No. 24668-S, and quoted from the decision in Snow v. Van Dam, 291 Mass. 477 , 480 (1935) to the effect that "(i)f [it is] not intended to benefit an ascertainable dominant estate, the restriction will not burden the supposed servient estate, but will be a mere personal contract on both sides." There is no ascertainable dominant estate apparent from the deed to the plaintiff which the grantor must have intended to benefit by imposing the restriction so I conclude that the restriction does not run with the land. Since it does not run with the land, there would be no reason to bring the restriction within the purview of Section 30 which is designed to free real estate from restrictions no longer serving their original purpose. This would be so whether a governmental body was concerned or not. The restriction remains a personal contract between the parties, and in an appropriate proceeding, if the town is able to show damages for its breach, these might be awarded. The policy of Section 30, of course, looks to such awards only in a limited category and is indicative of the legislative policy in this area.

No reason for the imposition of the restriction has been advanced by the parties. It may be surmised that the restriction was designed to ensure that the grantee in the deed would retain title to the premises for use with his adjoining home and not immediately resell the lot for a monetary gain at the town's expense. That purpose has been served by the retention of title by the grantee for fifteen years. No evidence has been introduced as to any damages which might be suffered by the town should the plaintiff elect to breach the contract between the parties, and it is dubious that anything other than nominal damages would be appropriate should a breach occur.

On all the evidence I, therefore, find and rule that the restriction set forth in the deed from the Town of Braintree to Arthur Leazott, Sr. et ux, dated October 15, 1962 and recorded with said Deeds, Book 4027, Page 73, does not run with the land nor burden the title to the premises described therein; that the restriction is a personal contract only between the grantor and the grantees; that the provisions of G. L. c. 184 § 30 do not apply; and that the consequences of the breach of said restriction are not presently before this Court.

Judgment accordingly.