PRISCILLA S. CATLIN, CHARLES N. FAVAZZO and MARY JO FAVAZZO v. DOROTHY LEVINE and MICHAEL Z. LANDE.

The plaintiffs, Priscilla S. Catlin, Charles N. Favazzo and Mary Jo Favazzo [Note 1] admittedly own land in Hamilton in the County of Essex in a subdivision known as the Boardman Estates. Their complaint to enforce a restrictive covenant on land situated in said subdivision was first filed on February 12, 1979 and successively amended by motions allowed by this Court on August 9, 1979 and June 19, 1980. The defendant Dorothy Levine with her late husband purchased Lot 16 in said subdivision on November 20, 1972 (Exhibits Nos. 3 and 18), and it is the interpretation of the language of this deed which gives rise to the present dispute.

A trial was held at the Land Court on August 13, 1980 at which a stenographer was appointed to record the testony. There is incorporated herein for the purpose of any appeal all exhibits introduced into evidence.

On all the evidence I find and rule as follows:

1. There was recorded with the Essex South District Registry of Deeds on August 2, 1972 in Plan Book 123, Plan 47 [Note 2] a plan (the "Plan") entitled "Revised Subdivision Plan of Boardman Estates in Hamilton" dated May 1, 1972 by Essex Survey Service Inc. (Exhibit No. 1).

2. By an instrument entitled "Restrictive Covenants", [Note 3] dated August 23, 1972 and recorded on September 6, 1972 in Book 5902, Page 444 (Exhibit No. 2) Boardman Development Corporation imposed restrictions on the land owned by it and located in said Hamilton, shown as Lots 1-19, inclusive, on the Plan and on an earlier plan not technically in evidence but referred to in footnote 5 hereof.

3. The restrictive covenants contained no provision relative to subdivision but did restrict the number of dwellings to be erected on any lot as follows:

SINGLE FAMILY DWELLING HOUSE

No building or other structure of any kind shall be erected, placed or allowed to stand on the lots described above except one detached dwelling house designed and used as a residence for one family only, one garage adapted for the storage of not more than three automobiles (which may be constructed as an integral part of the dwelling house or as a detached building), suitable garden structures (including a greenhouse) and such fences and other structures as shall from time to time be customarily used in connection with single family dwelling houses situated in similar neighborhoods in Hamilton, but the maintenance of existing buildings and structures is not hereby prohibited.

4. As to enforcement the restrictive covenants provided

ENFORCEMENT

So long as Boardman Development Corporation shall continue to own any portion of the property shown on the above-specified plans, said corporation shall have the exclusive right to enforce these restrictions and thereafter the same shall be enforceable only by any owner from time to time of any of the lots on said plans. (Emphasis added)

Enforcement shall be by proceedings at law or in equity against any person or persons violating or attempting to violate any restriction either to restrain violation or to recover damages. If strict enforcement of any term hereof would result in excessive hardship to an individual case as determined by an officer of Boardman Development Corporation, said corporation alone may waive compliance with said term in any such individual case, so long as its ownership of any portion of the restricted property continues.

5. The restrictions also made provision for the approval by Boardman Development Corporation "so long as" it "shall continue to own any portion of the property shown on the above-specified plans" of the size, plans, specifications and locations of any buildings, fences or other structures of any kind to be erected thereon. There also was a provision for repurchase by the developer if construction was not commenced within two years from the date of any sale by Boardman Development Corporation.

6. Dr. and Mrs. Levine originally agreed to buy Lot 9 on the Plan for the sum of twenty-three thousand one hundred dollars ($23,100). Lot 9 contained about 2.34666 acres. The agreement (Exhibit No. 15) covering it was signed by the Levines, but it was not consummated. Rather Boardman Development Corporation and the Levines signed an agreement (Exhibit No. 17) covering Lot 16; this lot had a somewhat smaller area of 2.08246 acres for which the buyers agreed to pay thirty-two thousand five hundred forty dollars ($32,540). It is contended by Mrs. Levine that the ability to subdivide the latter lot pursuant to the then applicable zoning was the reason for this decision.

7. Attached to Exhibit No. 17 was a proposed form of deed in which there appeared this paragraph;

It is agreed that the premises conveyed hereby shall not be subdivided for a period of six (6) years from date hereof, and this restriction shall be binding upon the heirs, successors and assigns of the Grantees, enforceable in Court of Equity.

8. The deed from Boardman Development Corporation to the defendant Dorothy Levine and her late husband Samuel, as tenants by the entirety, dated November 20, 1972 and recorded in Book 5926, Page 586 (Exhibits Nos. 3 and 18) set forth the same restriction as to subdivision of the premises as appeared in the exhibit to the purchase and sale agreement.

9. The plaintiff Priscilla Saltonstall Catlin thereafter purchased three lots from Boardman Development Corporation by deeds dated January 10, 1975, November 7, 1975 and April 20, 1977, recorded in Book 6122, Page 579, Book 6198, Page 345 and Book 6378, Page 123 and respectively conveying Lot 14 (Exhibit No. 5), Lot 18B1 (Exhibit No. 6) and Lot 15 (Exhibit No. 7). The latter is shown on the Plan. Lot 14 is described in the deed as being shown on a plan dated January 6, 1974 which is not before me, but it appears to have the same boundaries as Lot 14 on the Plan, and Lot 15 is said in the deed covering it to be shown on a plan dated November 3, 1975 which again is not before me.

10. The plaintiffs Charles N. Favazzo and Mary Jo Favazzo acquired title to Lot 7A on a January 8, 1973 plan, again not introduced in evidence, by a deed from Boardman Development Corporation dated September 6, 1973 and recorded in Book 6011, Page 287.

11. The defendants Levine were represented at the closing by an attorney retained shortly before the passing of papers, but who had not been retained at the time the purchase and sale agreement was executed. In any event it does not appear that the meaning of the provision relative to subdivision was an issue at the closing nor that the Levines had been advised by their attorney as to its various nuances.

12. The deed to the Levines did not specifically refer to the restrictive covenants, the conveyance being "subject to and with the benefit of easements and restrictions of record insofar as the same may be now in force and applicable," but Mrs. Levine testified that she had actual knowledge of them. The other deeds referred to herein were by their terms both subject to and had the benefit of such covenants.

13. In December of 1978 Boardman Development Corporation executed an instrument (Exhibit No. 11) which released its exclusive right to enforce the restrictive covenants and provided that they were enforceable only by owners from time to time of the lots shown on the Plan (and another). It also released to such owners the right to waive compliance. This was in accordance with the provisions of the instrument creating said covenants.

14. While Exhibit No. 11 recited that the corportion was about to divest itself of such properties as it still then owned in Hamilton, such divestiture was not completed until 1980.

15. By deed dated October 12, 1979 and recorded in Book 6642; Page 583 the defendant Levine took the unnecessary (and ineffective) step of conveying to herself Lot 16A on a plan dated December 1, 1978; [Note 4] at the same time she conveyed the remainder of Lot 16B to Michael Z. Lande, her son, by deed dated October 12, 1979 and recorded in Book 6642, Page 585.

16. Subsequent to the conveyance to the Levines and the plaintiffs Favazzo and prior to that to the plaintiff Catlin an "affidavit" of Boardman Development Corporation was recorded in Book 5952, Page 008 (Exhibit No. 12) reciting the redivision as Lots 2A and 3A of Lots 2 and 3 on a plan dated January 21, 1972, thereafter amended, and recorded in Plan Book 121, Plan 95. [Note 5] The affidavit significantly explained the intention of the redivision as follows:

In accordance with powers reserved by Boardman Development Corporation in said restrictive covenants, it is the intention of Boardman Developement (sic) Corporation that said Lot 2A, any lots which may be created by subsequent subdivision of said Lot 2A, and said Lot 3A, shall be considered as individual building lots under said restrictive covenants, and shall be subject to and shall have the benefit of said restrictive covenants.

At the request of counsel for the plaintiffs the plan showing Lots 2A and 3A was obtained and introduced as Exhibit No. 12A.

The plaintiffs seek a determination by this Court that the restrictive covenants prohibit the erection on Lot 16 of any structure other than one single family home and a permanentinjunction against erection of any other strucure. The defendant Levine made no contention in her pleading or at the trial that the restrictions are unenforceable by virtue of any of the provisions of G. L. C. 184, §§26 to 30 although such an argument appears in her brief. [Note 6] Rather it is her position that by the language used in her deed enforcement of the restrictions was waived after six years.

It is unclear from the language used in the deed covering Lot 16 what the intention of the parties was as to the language about which this dispute centers. The plaintiffs contend that it was intended that after the expiration of six years the grantees might divide the lot but that the limitation of one single family residence would continue to apply to both parts of the subdivided whole. Under this theory a total of only one house could be built on subdivided Lot 16. The remaining portion of the subdivided lot under the argument advanced by the plaintiffs would have to be held as vacant land until the expiration of the restrictions in thirty years from the date of imposition according to the provisions of G. L. c. 184 §23. Coversely, the defendant argues that since the Restrictive Covenants contained no prohibition against subdivision, it must have been the intention of the parties that once subdivided the restrictive covenants would continue to apply to each of the parts of Lot 16 (i.e. Lots 16A and 16B) but that subject to the provisions of the Hamilton zoning by-laws one house might be built on each part. This is the result which is called for by the language of Exhibit No. 12 where the draftsman specifically provided that any part of a subdivided lot would be deemed a lot for purposes of the restrictive covenants. This language clearly resolves the type of problem which is presented by the case now before the Court. Its significance as an aid in deciding the effect to be given the right to subdivide can be argued either way. On the one hand it shows that the grantor knew how to provide for the result which the defendant Levine seeks to have this Court reach and that therefore the present language does not do so. On the other hand it can be contended that Exhibit No. 12 demonstrates that the grantor intended a subdivided lot to be a lot within the meaning of the restrictions.

The defendant further argues that the discretion given to Boardman Development Corporation to waive the restrictions militates against a common scheme and prevents the present plaintiffs, successors in title to the developer, from enforcing the restrictions. The Supreme Judicial Court has recognized the adoption of this position in other jurisdictions, but to date it has not decided whether this result will be reached in Massachusetts. See Patrone v. Falcone; 345 Mass. 659 , 662-663 (1963). In my opinion the present case also can be resolved without resort to the extreme position taken in some other jurisdictions.

In accordance with the usual rule restrictions in a deed are to be strictly construed against the grantor, Brown v. Linnell, 359 Mass. 446 (1971); Walker v. Gross, 362 Mass. 703 (1972). Having weighed the several factors and others which appear in the evidence, including the fact that the grantees in the deed were not represented by counsel until the closing, I have come to the conclusion that it was the intention of the parties that Lot 16 might be subdivided after the expiration of six years and that each of the resulting lots was to be deemed a lot within the meaning of the restrictive covenants. It also seems logical that a lay person would assume from the language granting a right to subdivide that he had a right to build thereon even though technically the two concepts are not necessarily identical. This interpretation is in accordance with G. L. c. 41 §81L where there was excluded from the definition of a subdivision a conveyance merely adding to, taking away from or changing the size and shape of adjoining lots. It has always been understood that a boundary adjustment is not within the meaning of the subdivision control law. If the language used in the deed to the Levines was intended only to mean that portions of Lot 16 could be conveyed but not built on, an argument based on the statute would lie that this was not a subdivision. Section 81L also defines "subdivision" as "the division of a tract of land into two or more lots" and "lot" as meaning "an area of land in one ownership, with definite boundaries, used, or available for use, as the site of one or more buildings." The negative grant to the Levines of the right to subdivide may have been drafted with the definition of lot in mind. The language relative to subdivision appears in no other deed which has been brought to the attention of the Court. Absent the specific restriction on subdivision it is clear that subdivision might have been carried out by the grantees but that the resulting lots would have been subject to the restrictions including the limitation on the number of buildings. The imposition of a specific restraint for six years must have been intended to mean more than this after the time limit had expired. It makes sense only if it is interpreted as meaning that subdivision is permissible after six years and that the resulting lots may each be built upon.

As noted above I cannot accept the argument that the developer's right to waive compliance with the restrictions renders nugatory the provision of the restrictive covenants that the owners of property in the development might do so when the developer's right had terminated. [Note 7] However, it is apparent from a study of the restrictive covenants that certain of these were personal to Boardman Development Corporation and a requirement that consent of all owners would have to be obtained for approval of plans, for example, would impose too great a burden on owners of lots in the development. See Patrone v. Falcone, supra. Within this category I place the requirement of approval of the size, plans, specifications and locations of any buildings, fences or other structures and that relative to the repurchase option. In addition, the very wording of the applicable provisions (unless one incorporates the separate provisions of the pragraphs relative to enforcement) leads to the conclusion that only the developer is to have the rights of approval and repurchase. I interpret the specific provisions on enforcement to apply to such of the restrictions as are not limited by their own terms to continued ownership by the developer.

On all the evidence I therefore find and rule that the parties intended that after the expiration of six years the grantees in the deed and their successors in title might subdivide Lot 16, that each of the lots resulting from such subdivision constitutes a lot within the meaning of the restrictive covenants, and that each is subject to and has the benefit of said covenants except as to those intended to be enforced only by Boardman Development Corporation.

Judgment accordingly.

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