MISC 131134

November 15, 1990

Essex, ss.



When selling tax title land to abutters municipalities frequently attempt to impose obligations on the purchasers to either combine the tax title land with land already owned by the purchasers or to limit rights of subdivision. Just such a scenario is presented by the present complaint where the Town of Swampscott in conveying two lots in 1962 to the owners of an abutting two lots provided in the deed that the four lots would become one and would not thereafter be subdivided. Subsequently, grantees in the chain of title conveyed two lots out and retained two, and this gives rise to the present controversy. The plaintiff Gregory F. Wilson is the owner of Lots 26 and 27 on a plan entitled "'Progress Park' Plan of House Lots from surveys made by C. W. Gay" dated November 30, 1914 and recorded with the Essex South District Registry of Deeds (to which all recording references herein refer) at the end of Book 2608 (Exhibit No. 1). The defendant Joanne T. Bonura owns Lots 55 and 56 which abut each other and abut in the rear the two lots owned by the plaintiff on which a home has been erected. A copy of the pertinent portion of the subdivision plan is attached hereto.

A trial was held at the Land Court on June 11, 1990 at which a stenographer was appointed to record and transcribe the testimony. There were four witnesses at the trial, the plaintiff and Louis Gall, Building Inspector for the Town of Swampscott were called by the plaintiff; the defendant called David M. Weiner, a Land Court Title Examiner and Salvatore Bonura, husband of the defendant. Sixteen exhibits were introduced into evidence which are incorporated herein for the purpose of any appeal.

On all the evidence I find and rule as follows:

1. The four lots in question, Lots 26, 27, 55 and 56, are shown on the Progress Park Plan to which reference has already been made (Exhibit No. 1).

2. Almy Trust, the apparent owner of the subdivision shown on the Plan, conveyed Lots 26 and 27 to Edith Brown in 1931 who in turn conveyed the parcels to Abbott W. Fish and Eleanor M. Fish in 1947 by deed dated November 20, 1947 and recorded in Book 3537, Page 55. The two lots each contain 5,000 square feet and front on The Greenway.

3. Lots 55 and 56 together measure 11,141 square feet and front on Overhill Road. They adjoin Lots 26 and 27 in the rear. They were taken for the nonpayment of real estate taxes by the Town of Swampscott and subsequently were deeded to the Town in 1946, an apparent low value tax foreclosure. There was no evidence introduced as to the ownership of any abutting lots by the Town of Swampscott.

4. In 1962 the Town conveyed Lots 55 and 56 to Abbott W. Fish et al, the owners of the two abutting lots, Lots 26 and 27. The four lots in question here form a rough rectangle.

5. The deed from the Town to the Fishes dated June 14, 1962 and recorded in Book 4932, Page 386 (Exhibit No. 3) contained the following provision:

This conveyance is made subject to the following conditions which the grantees herein covenant with the grantor to fully perform and which conditions shall forever run with the land herein granted:

1. The lots herein granted are to become an integral part of Lots 26 and 27 on Assessors' Plat 12 which are now owned by the grantees herein and said four lots together shall be used as only one lot for building and used to conform with present zoning by-laws as amended from time to time insofar as they apply to said four lots.

2. The grantor assumes no obligation relative to the installation of any utilities, construction or reconstruction of any ways.

By a series of mesne conveyances title to the four lots passed to Salvatore Bonura and Joanne T. Bonura who acquired title from Rose A. Morretti by deed dated August 24, 1972 and recorded in Book 5898, Page 688. These conveyances specifically described Lots 26 and 27 by a bounding description and included the 11,141 square foot parcel in a separate paragraph.

6. The present cloud on the title then was created by Mr. and Mrs. Bonura who conveyed Lots 26 and 27 to Jack K. Marsh and M. Patricia Marsh by deed dated March 14, 1973 and recorded in Book 5956, Page 141 (Exhibit No. 8). Lots 26 and 27 subsequently were conveyed by Jack K. Marsh et al to the plaintiff and Linda C. Wilson by deed dated April 21, 1978 and recorded in Book 6461, Page 583 (Exhibit No. 10). Linda C. Wilson conveyed her interest in the premises to the plaintiff by deed dated May 10, 1982 and recorded in Book 6944, Page 256 (Exhibit No. 11). The deed from the defendant and her husband to Mr. and Mrs. Marsh and the subsequent conveyances of Lots 26 and 27 do not purport to convey any right, title or interest in Lots 55 and 56. Indeed the only reference to the chain of title to the adjoining lots is in the boundary description. The deeds in the plaintiff's chain do, however, contain the boiler plate language "[s]aid premises are conveyed subject to restrictions of record, insofar as now in force and applicable."

7. Salvatore Bonura et ux conveyed Lots 55 and 56 to the defendant by deed dated December 20, 1977 and recorded in Book 6443, Page 537 (Exhibit No. 9).

8. The Town of Swampscott assesses property taxes on Lots 55 and 56 separately although until 1972 the assessment appeared on a single tax bill; the Town currently not only assesses but also bills taxes separately as to Lots 55 and 56 (Exhibit No. 16). No evidence was offered at trial to the effect that the lots had ever been consolidated into one on the respective tax bills of the parties and their predecessors.

9. All four lots are in the Residence A-2 zoning district. The minimum lot size for the district is 20,000 square feet (Exhibit No. 12; see Art. IV, sec. 3.5. and Art.V). In June, 1962 when Mr. and Mrs. Fish acquired the disputed lots, the minimum lot area was 15,000 square feet. The zoning by-law has been amended several times in this respect: 1948-1958, minimum lot size was 7,500 square feet; 1958-1978, 15,000 square feet; 1978-present, 20,000 square feet. Article 5 contains the grandfathering provisions of the by-law. Section 5 thereof further prohibits lots reconfigurration so as to bring the lot into nonconformance with the various dimensional restrictions for the particular district.

The plaintiff seeks in his complaint to have this Court be clear that he is the sole owner of Lots 55 and 56 or alternatively that he holds an easement with respect thereto that subjects such lots to use only in a way that is consistent with Lots 26 and 27. He further wishes the Court to find that Lots 55 and 56 together are one lot for building purposes and for the purpose of all regulation under the Swampscott Zoning By-law. Finally, he claims that even if he is unsuccessful in pressing such arguments, Lots 55 and 56 are subject to restrictions which the plaintiff has a right to enforce. The defendant alternatively requests this Court to declare pursuant to the provisions of G.L. c. 185, §1 and G.L. c. 231A, §1 that the defendant is the sole rightful owner of Lots 55 and 56, and that the plaintiff has no rights, easements or ownership with respect to said Lots 55 and 56.

It is clear that the conveyance by the defendant and her husband to the plaintiff's predecessors in title, the Marshes, violated the provisions of the deed from the Town of Swampscott to Mr. and Mrs. Fish. I construe the language of the deed to constitute a restriction, not a condition inasmuch as the Town appears to have owned no adjoining land which would have been benefitted by the imposition of the restriction. Accordingly, I find and rule that the restriction was personal to the parties to the deed even though the deed recites that the restriction was to run with the land forever. As I construe the grant, the covenant was personal to the parties to the deed and could only be enforced by the Town as against the original grantees. The original grantees and those claiming under them did not violate the proscription as to conveyance of less than all four lots together but observed the language of the covenant and it was not until many years later that the covenant was breached by the conveyance out of Lots 26 and 27. By then it could not be enforced. Moreover, the restriction was a matter of record of which those purchasing Lots 26 and 27 are deemed to have had constructive notice as well as those in the chain of title to Lots 55 and 56. Thus there are no grounds for the plaintiff now to claim that he somehow is the owner of all four lots. So far as appears, his predecessors and he each bargained, paid for and were conveyed only two lots.

There is no evidence of a general scheme such as might have existed if the Almy Trust, the original owner of all the lots on the subdivision, imposed such a provision in its deeds out so there is no legal precedent for allowing the owner of one-half of the lots which supposedly were to constitute one parcel to enforce the restriction as against the owner of the other two lots. It would be inequitable in any event to allow the plaintiff to acquire title to Lots 55 and 56 as he has prayed without requiring him also to pay for such conveyance. Even if I were to hold that the restriction ran with Lots 55 and 56 and that they accordingly are subject to the restriction, only the Town could enforce it. In addition, since the restriction is unlimited as to time, it expires in thirty years from June 14, 1962 or in approximately 18 months. See G.L. c. 184, §23.

It follows that the plaintiff is not entitled to relief. Without a full examination of the records the Court will not enter a declaratory judgment as to the defendant's ownership generally, but I do find and rule that as between the parties the defendant owns Lots 55 and 56 free from any interest of the plaintiff therein. It may be well that the plaintiff is interested primarily in the applicability of the Swampscott Zoning By-law to the land of the defendant, but if this is so, the Town would appear to be a necessary party.

Judgment accordingly.

exhibit 1

Exhibit 1