JAMES GRAHAM, WALTER NEMES, CONSTANCE MARINI and BRUCE CONE, as they are TRUSTEES OF THE LONGBROOK ESTATES CONDOMINIUM TRUST vs. GFI LONGBROOK, LLC, JOSEPH A. PACELLA, RALPH DEPALMA, WEBSTER BANK NATIONAL ASSOCIATION, TOWN OF AGAWAM, CHAMPAGNE DRYWALL, INC., COMPETITIVE KITCHEN DESIGNS, INC., CONTRACTORS HOME APPLIANCES, INC., EGAN, FLANAGAN AND COHEN, P.C., NATIONAL LUMBER COMPANY, KAYCAN, LTD., SHAWN P. ALLYN, DAUPHINAIS AND SON, INC., HYDRO-PRO IRRIGATION, INC., G & S PAINTING AND CONTRACTING, LLC, AND 84 LUMBER CO., L.P.

Plaintiffs, Trustees of the Longbrook Estates Condominium Trust, filed their unverified Complaint on June 7, 2011, pursuant to G. L. c. 231A, seeking 1) declaratory judgment (against all Defendants) relative to the parties’ respective interests in property (the Mortgaged Land, as hereinafter defined) which is part of phased land in the Longbrook Estates Condominium (the “Condominium”), a phased residential condominium located in Agawam, Massachusetts, created by a Master Deed dated April 15, 1988, and recorded with the Registry on April 15, 1988 at Book 6808, Page 168 (the “Master Deed”), 2) quiet title (against Webster Bank National Association (“Webster”) and Joseph A. Pacella and Ralph DePalma (together, “Pacella/DePalma”)), and 3) equitable relief (against Webster and Pacella/DePalma). [Note 1] Defendants Egan, Flanagan and Cohen, P.C. (“P.C.”) and Pacella/DePalma filed their Answer on June 28, 2011. The Town filed its Answer on June 30, 2011. Defendant National Lumber Company (“National Lumber”) filed its Answers and Responses on July 12, 2011. Defendant Kaycan, Ltd. filed its Answer on July 15, 2011. Defendant Shawn P. Allyn (“Allyn”) filed his Answers and Responses on July 19, 2011. Defendant Champagne Drywall, Inc. filed its Answer and Affirmative Defenses on July 21, 2011. Defendant Dauphinais and Son, Inc. filed its Answer on July 28, 2011. A case management conference was held on August 10, 2011. On August 12, 2011, Webster filed its case management statement. On September 6, 2011, Defendant Competitive Kitchen Designs, Inc. was defaulted. On November 16, 2011, Defendants GFI, Contractors Home Appliances, Inc., Hydro-Pro Irrigation, Inc., G&S Painting and Contracting, LLC, 84 Lumber Co., L.P. and Allyn were defaulted. A telephone conference call was held on April 6, 2012, at which time default against Allyn was vacated; P.C., Dauphinais and Son, Inc., Champagne Drywall, Inc., and Kaycan LTD were dismissed from the case; and this court DENIED a Request for Default against National Lumber. [Note 2]

On June 15, 2012, Plaintiffs filed their Motion for Partial Summary Judgment (Counts II, III, V, VI and IX) against Defendants Webster, Pacella/DePalma, National Lumber and Allyn, together with supporting memorandum, Statement of Material Facts, Affidavit of Katherine Brady, Esq., and Appendix. [Note 3] On July 18, 2012, Webster filed its Opposition to Summary Judgment, together with supporting memorandum, Affidavit of Kathleen E. Connolly, Esq., and Appendix. On August 10, 2012, Allyn filed his Opposition to Summary Judgment, together with supporting memorandum. On August 13, 2012, Plaintiffs filed their Reply. On August 17, 2012, Plaintiffs filed their Motion to Strike Portions of Allyn’s Opposition. On August 21, 2012, Allyn filed his Opposition to Motion to Strike. A hearing on all motions was held on August 27, 2012, and the matter was taken under advisement. [Note 4] A telephone conference call was held on February 4, 2013, between this court, counsel for Webster, counsel for Plaintiffs, and Allyn, at which time this court requested that the parties submit additional documentation from the Hampden County Registry of Deeds (the “Registry”). An additional telephone conference call was held on February 15, 2013, between the same parties, and this court requested that the parties submit further supplementary documentation from the Registry, which was received on February 20, 2013. A decision was issued by this court on February 21, 2013 (“Land Court Decision 1”), in which this court found (1) that the Land Court had jurisdiction to issue a declaratory judgment relative to a first mortgage dated October 4, 2006 (the “Webster Mortgage”), from GFI to Webster on Parcel A-1 and Parcel B (the “Mortgaged Land”), as shown on a plan (the “1988 Plan”) titled “Survey Map Suffield Commons Condominium” dated April 11, 1988, prepared by Igor Vechesloff and recorded with the Registry at Book of Plans 255, Page 120, to secure a note in the sum of $4,950,000.00, and (2) that the Webster Mortgage and a Writ of Attachment issued by the Hampden County Superior Court to Allyn on June 26, 2008, in the amount of $30,000 (the “Allyn Lien”) were valid and must be subordinated to the Master Deed (as amended by an amendment to the Master Deed dated June 30, 2011 (“Phasing Amendment 18”)) . [Note 5] Plaintiffs filed a Motion for Reconsideration on March 14, 2013, arguing that Webster equitably has no interest in the Mortgaged Land and therefore the Webster Mortgage should be extinguished; Allyn filed his Opposition on March 22, 2013 and Webster filed its Opposition on April 8, 2013. By Order dated April 16, 2013, this court stayed any action on the Motion for Reconsideration until final judgment entered in this case. [Note 6]

On June 14, 2013, Webster filed its Motion for Summary Judgment on Counts IV (equitable relief relative to Webster) and VII (equitable relief relative to Pacella/DePalma), together with supporting memorandum and Supplemental Statement of Material Facts and Appendix, including Affidavits of Richard M. Theroux (Agawam Town Clerk) and Kathleen E. Connolly, Esq. [Note 7] [Note 8] Plaintiffs filed their Motion for Summary Judgment on Count IV (equitable relief relative to Webster) and Count VII (equitable relief relative to Pacella/DePalma) on June 17, 2013, together with supporting memorandum, Statement of Material Facts, and Affidavits of Ward P. Graham (the “Graham Affidavit”) and Thomas Moriarty, Esq. On July 15, 2013, Allyn filed his Assent to Webster’s summary judgment motion. Plaintiffs filed their Opposition to Webster’s motion for summary judgment on July 16, 2013. On October 9, 2013, Webster filed its Opposition to Plaintiffs’ motion for summary judgment and Motion to Strike Affidavit of Ward Graham. A hearing was held on all motions on October 21, 2013, and all motions were taken under advisement. On March 31, 2014, this court issued a Decision and a Judgment. Plaintiffs filed a Motion to Amend Judgment on April 7, 2014, and a telephone status conference was held on April 10, 2014. As a result of such conference, this Amended Decision is issued of even date.

I find that the following material facts are not in dispute (most of which are taken directly from Land Court Decision 1):

1. The Condominium is a phased residential condominium located in Agawam, Massachusetts, created by the Master Deed.

2. Plaintiffs are Trustees of the Longbrook Estates Condominium Trust (the “Trust”). The Trust, which is the governing body of the organization of unit owners of the Condominium, was initially established as the Suffield Commons Condominium Trust, under a Declaration of Trust recorded with the Registry on April 15, 1988, at Book 6808, Page 228.

3. Andover Development Residential Trust (“Andover”) was the original declarant under the Master Deed. Pursuant to the Declaration of Trust and the Master Deed, Andover transferred 4.56 acres of land to the Condominium (the “Original Land”), more adequately described in Schedule A to the Master Deed and shown on a plan entitled “Survey Map Suffield Commons Condominium” dated April 11, 1988, prepared by Igor Vechesloff (the “1988 Plan”), and recorded with the Registry at Book of Plans 255, Page 120. Schedule B to the Master Deed described two additional parcels of land (the “Additional Land”), Parcel A, containing approximately 24.41 acres (“Parcel A”), and Parcel B, containing approximately 11.75 acres (“Parcel B”), as shown on the 1988 Plan. [Note 9] Andover retained the fee interest in the Additional Land.

4. Sections 20.6 and 20.7 of the Master Deed provided for the phased development of the Condominium. Pursuant to Section 20.6(a) of the Master Deed, Andover reserved the right to submit any portion of the Additional Land to condominium status as part of the Condominium (the “Original Phasing Rights”). More specifically, Section 20.6 stated that Andover reserved: “(a) The right, but not the obligation, to add all or any portions of the [Additional Land], including any improvements thereon to the Condominium...” and “(b) The right, but not the obligation, to create Units, Common Elements, and Limited Common Areas...in the locations shown as [the Additional Land]...”

5. Between 1988 and 1991, Andover submitted a portion of the Additional Land to the Condominium. [Note 10] By deed dated March 14, 1991, and recorded with the Registry at Book 7655, Page 526, Andover conveyed all of the Additional Land that it had not yet submitted to the Condominium to Princess Realty, Inc (“Princess”), GFI’s predecessor in interest. [Note 11] Through various Amendments to the Master Deed between 1991 and 1996, Princess submitted several additional portions of Parcel A to condominium status as part of the Condominium. The Original Phasing Rights expired on December 31, 2002.

6. On March 10, 2004, Princess and the Trust executed a Settlement Agreement and Mutual Release (the “Settlement Agreement”), effectively reviving the Original Phasing Rights relative to those portions of the Additional Land that had not yet been submitted to the Condominium (the “Undeclared Land”). The Undeclared Land consisted of (1) two separately described portions of Parcel A (a portion of Parcel A, consisting of 4.34 Acres, and Parcel A-1 consisting of 2.96 Acres (“Parcel A-1”)) and (2) Parcel B, consisting of 11.75 Acres. [Note 12] On June 30, 2004, the Trust executed an Instrument of Revival and Grant (the “Instrument of Revival”), which extended the Original Phasing Rights (the “Revived Phasing Rights”) to Princess and its successors and assigns until July 26, 2011 (the “Phasing Deadline”). The Instrument of Revival and the Settlement Agreement were recorded together at the Registry at Book 14362, Page 1 et seq. [Note 13]

7. The Instrument of Revival states, inter alia:

3. [Princess] shall have the right, the further consent of any unit owner or mortgagee being unnecessary, to amend the Master Deed so as to include in the [C]ondominium certain additional...land and improvements constructed thereon which...prior to their submission, shall be owned by Princess Realty...The Phasing Rights provided herein shall expire and otherwise terminate 7 years from the date of the recording of this Instrument. [Princess] shall have no right to add any building, common element, land or unit to the Condominium after such date. The Phasing Rights may be transferred, sold, assigned, conveyed, pledged, mortgaged, or otherwise alienated.

5. [Princess’] right to submit land shall be limited to...the [Undeclared Land]. [Princess] shall submit all portions of the Undeclared Land to condominium status as part of the Condominium prior to the expiration of its Phasing Rights whether or not units, buildings and/or improvements are constructed thereon.

6. The Instrument of Revival and the Phasing Rights revived and granted hereby are specifically subject to the terms and conditions of the Settlement Agreement...

8. The Settlement Agreement states, inter alia:

1(c) ...Any individual or entity to which the Undeclared Land an/or Phasing Rights are transferred, sold, assigned, conveyed, or which otherwise comes to possess the Undeclared Land and/or Phasing Rights by any means, including without limitation, foreclosure deed or deed in lieu of foreclosure, shall be subject to the terms of this Settlement Agreement and shall assume all duties and obligations of Princess as provided herein.

3(a) Prior to the submission of any portion of the Undeclared Land to condominium status in connection with its Phasing Rights, Princess shall execute and/or obtain and record a discharge and/or release, acceptable to [the Trust], of each and every mortgage or other instrument purportedly secured by, or otherwise encumbering, such portion of the Undeclared Land and shall record a subordination agreement from any then existing lien holder or mortgagees subordinating such lien holder or mortgagees’ interest(s) to the Master Deed and the [Declaration of Trust].

9. By deed dated, July 22, 2004, and recorded with the Registry at Book 14354, Page 481, Princess conveyed the fee interest in the Undeclared Land and the Revived Phasing Rights to GFI (the “GFI Deed”).

10. By Phasing Amendment to the Master Deed, dated August 26, 2005 (“Phasing Amendment 13”), and recorded with the Registry at Book 15279, Page 526, GFI submitted Buildings 18 and 23 and 1.53 acres of Parcel A to the Condominium.

11. By Phasing Amendment to the Master Deed, dated May 4, 2006 (“Phasing Amendment 14”), and recorded with the Registry at Book 15906, Page 517, GFI submitted Buildings 19 and 22 and 1.09 acres of Parcel A to the Condominium.

12. On October 4, 2006, GFI granted a construction first mortgage on Parcel A-1 and Parcel B (the Mortgaged Land) to Webster (the Webster Mortgage) to secure a note in the sum of $4,950,000.00. [Note 14] [Note 15] [Note 16] The Webster Mortgage was recorded with the Registry at Book 16281, Page 313. GFI used the proceeds from the Webster Mortgage to construct condominium units submitted to the Condominium via subsequent phasing amendments, as discussed, infra. The Webster Mortgage was secured by, inter alia:

A. the [Mortgaged Land]...

G. TOGETHER WITH all right, title, and interest of [GFI] in any to any and all so-called expansion rights and withdrawals or rights to add or subtract additional units and land to the Premises and all special declarant rights, including but not limited to, all development rights whether or not now in existence by virtue of any reservation in any existing Master Deed or in any Master Deed hereafter recorded.

13. On October 26, 2006, GFI granted a second mortgage on the Mortgaged Land to Pacella/DePalma (the “Pacella/DePalma Mortgage”) to secure a note in the sum of $1,411,950.00. The Pacella/DePalma Mortgage was recorded with the Registry at Book 16281, Page 342.

14. By Phasing Amendment to the Master Deed, dated November 30, 2006 (“Phasing Amendment 15”), and recorded with the Registry at Book 16367, Page 373, GFI submitted Building 20 and .96 acres of Parcel A to the Condominium. [Note 17] In relation to Phasing Amendment 15, both Webster and Pacella/DePalma executed and recorded a consent and subordination of mortgage (the “Phase 15 Subordinations”), recorded with the Registry at Book 16367, Page 395 and Page 398, respectively. The relevant language in the Phase 15 Subordinations states:

[s]uch exercise [of the mortgagee’s rights pursuant to its mortgage] will be subject and subordinate to the provisions of the [Master Deed], as amended, including in and by the said Phasing Amendment, the Mortgagee hereby recognizing the establishment of the Condominium by said Master Deed, and the inclusion therein of the mortgaged premises as Phase 15 of the Condominium pursuant to the Phasing Amendment...

The right, title, interest and lien of [the mortgagee] shall henceforth affect and apply to the Units of Phase 15 only, together with the undivided interest appurtenant thereto in the common areas and facilities.

15. By Phasing Amendment to the Master Deed, dated March 22, 2007 (“Phasing Amendment 16”), and recorded with the Registry at Book 16630, Page 18, GFI submitted Building 21 and the remaining portions of Parcel A (.75 acres) to the Condominium. [Note 18] In relation to Phasing Amendment 16, both Webster and Pacella/DePalma executed a consent and subordination of mortgage (the “Phase 16 Subordinations”). The Phase 16 Subordinations were recorded together with Phasing Amendment 16.

16. By Phasing Amendment to the Master Deed, dated February 27, 2008 (“Phasing Amendment 17”), and recorded with the Registry at Book 17167, Page 121, GFI submitted six units within Building 39 (“Building 39”) and portions of Parcel B (.78 acres) to the Condominium. The Webster Mortgage was secured by the property and buildings submitted to the Condominium pursuant to Phasing Amendment 17, and both Webster and Pacella/DePalma executed a consent and subordination of mortgage (the “Phase 17 Subordinations”). The Phase 17 Subordinations were recorded together with Phasing Amendment 17. [Note 19] Pursuant to the Master Deed, Building 39 was to consist of eight units, Units 298-305; however, when Building 39 was added to the Condominium in accordance with Phasing Amendment 17, only Units 298-303 were submitted.

17. On February 29, 2008, Plaintiffs filed a Complaint in Hampden County Superior Court (08-000213) (the “Superior Court Case”) seeking a declaration that Phasing Amendment 17 was invalid, based on allegations that Building 39 was built in violation of a variance granted to GFI’s predecessor, which provided that Building 39 must be set-back seventeen feet from the nearest property line. Building 39 was built with a setback of less than eight feet. [Note 20]

18. By letter dated March 7, 2008, Plaintiffs requested the building inspector (the “Building Inspector”) of the Town of Agawam (the “Town”) to revoke the building permit relative to Building 39 (the “Building 39 Permit”) because of the zoning violation. By letter dated March 24, 2008, the Building Inspector informed Plaintiffs that he refused to revoke the Building 39 Permit, but he issued a stop work order (the “Stop Work Order”) relative to Unit 304 and Unit 305 in Building 39. Plaintiffs appealed the Building Inspector’s refusal to revoke the Building 39 Permit to the Town of Agawam Zoning Board of Appeals (the “ZBA”).

19. The ZBA issued a decision (the “ZBA Decision”) dated July 8, 2008, and filed with the Town Clerk on July 30, 2008, upholding the decision of the Building Inspector, i.e. refusing to revoke the Building 39 Permit but also affirming the Stop Work Order. The ZBA Decision stated, inter alia, “[t]his board has found that Units 304 and 305, not the entire building, must be granted a new variance in order to remain...”

20. On August 18, 2008, Plaintiffs appealed the ZBA Decision to the Land Court (08 MISC 382716) (the “Zoning Appeal Case”), naming GFI and the ZBA as Defendants, seeking revocation of the Building 39 Permit. [Note 21] Plaintiffs, the ZBA, and GFI, entered into a Stipulation of Dismissal with respect to the Zoning Appeal Case (the “Stipulation”) on October 21, 2011, dismissing all claims and counter-claims with prejudice. The parties entered into the Stipulation after the Phasing Deadline had passed. [Note 22]

21. On June 26, 2008, Allyn was issued a Writ of Attachment by the Hampden County Superior Court in the amount of $30,000 (the Allyn Lien) against “all the right, title, and interest [GFI] has in any and all real estate in [Hampden] County.” As it is relevant to this case, the Allyn Lien attached to the Residual Undeclared Land, as described, infra. The Allyn Lien was recorded with the Registry on June 27, 2008, at Book 17365, Page 550. [Note 23]

22. On July 30, 2008, a Writ of Attachment was issued by the Bristol County Superior Court for the benefit of National Lumber in the amount of $82,000 (the National Lumber Lien), commanding the Sheriffs of the several counties of the Commonwealth to attach the real estate of GFI. The National Lumber Lien was recorded with the Registry at Book 17420, Page 179 on August 5, 2008. As it is relevant to this case, the National Lumber Lien attached to the Residual Undeclared Land, as described, infra. After Judgment had entered against GFI in a court case in Bristol County Superior Court between National Lumber and GFI, a second “Execution” was issued by the Bristol County Superior Court on June 16, 2009, in the sum of $96,606.23. [Note 24] This Writ of Attachment, commanding the Sheriffs of the several counties of the Commonwealth to cause National Lumber to be paid out of the “goods, chattels, or land” of GFI, was recorded with the Registry at Book 18272, Page 8 on April 28, 2010.

23. Plaintiffs filed their Complaint in this case on June 7, 2011. By Phasing Amendment to the Master Deed, dated June 30, 2011 (“Phasing Amendment 18”), and recorded with the Registry on July 18, 2011 at Book 18844, Page 541, GFI submitted the remaining Undeclared Land that it had not previously submitted to condominium status (the “Residual Undeclared Land”). [Note 25] As such, GFI submitted the Residual Undeclared Land to condominium status as part of the Condominium before the Revived Phasing Rights expired on July 22, 2011. Webster and Pacella/DePalma did not execute a subordination agreement relating to Phasing Amendment 18. Allyn and National Lumber have never executed a document subordinating their respective liens to any instrument.

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Plaintiffs argue that the Webster Mortgage and the Allyn Lien, even if valid encumbrances pursuant to Land Court Decision 1, are of no utility and should be extinguished. Webster and Allyn argue that their encumbrances are valid and there is no basis for their extinguishment. There is an issue as to the validity of the Webster Mortgage and the Allyn Lien with respect to both Building 39 and the Residual Undeclared Land. This court shall address each issue in turn. [Note 26]

I. Motion to Strike:

Webster has filed a motion to Strike the Graham Affidavit. Graham is an attorney and his affidavit states that it is an expert affidavit. Graham has not been qualified as an expert. This affidavit gives legal conclusions to the facts which have been agreed to by the parties. Graham’s affidavit is attempting to rule on the issues before this court. As such, I shall strike the Graham Affidavit.

II. Validity of the Webster Mortgage:

Plaintiffs ask this court to extinguish the Webster Mortgage, pursuant to both a Motion to Reconsider Land Court Decision 1 and on equitable grounds pursuant to Count IV of the Complaint [Note 27], alleging that a mortgage with no utility must be extinguished. In this regard, Plaintiffs contend that the Webster Mortgage has no utility and no value because it is no longer secured by any interest in land. Webster contends that the Webster Mortgage does in fact have value and therefore should not be extinguished. Webster also argues that Plaintiffs cannot come into this court seeking equitable relief because Plaintiffs have “unclean hands” relative to their alleged interference with GFI’s attempts to obtain zoning relief relative to Building 39.

A. Building 39:

Webster contends that the Webster Mortgage has value relative to the unsold units in Building 39, and that such value will be increased when all issues relating to zoning and the validity of Building 39 have been resolved. There are a total of eight contemplated units within Building 39. Six of those units, Units 298-303, were submitted to the Condominium pursuant to Phasing Amendment 17. It has been represented to this court that at least one of those units, Unit 298, has been sold by GFI. Units 304 and 305 were never submitted to the Condominium in Phasing Amendment 17; however, these two units are part of and located within Building 39. As a result, it is unclear whether Units 304 and 305 were submitted to the Condominium as part of Phasing Amendment 18. [Note 28] It appears that there are five unsold units that were validly submitted to the Condominium in Phasing Amendment 17, which units are owned by GFI. [Note 29] At oral argument, this court understood Plaintiffs to concede that the Webster Mortgage would still be secured by all unsold units within Building 39. In their Opposition brief, Plaintiffs argue that,

Under the terms of the Settlement Agreement and the Instrument of Revival, there were covenants which required Princess, or its successors in interest, to submit the entirety of the Undeclared Land to [the Condominium by the Phasing Deadline] and that, as a matter of law and/or equity the Undeclared Land submitted as common area should be unencumbered by [the Webster Mortgage].

It appears that Plaintiffs’ only argument is with respect to the Residual Undeclared Land submitted as common area pursuant to Phasing Amendment 18. Plaintiffs make no argument relative to whether the Webster Mortgage secures the unsold units that were added to the Condominium pursuant to Phasing Amendment 17. These units are still owned by GFI, and GFI is the only entity with the right to convey said units to prospective purchasers. In this regard, it would appear that the Webster Mortgage is still valid and is still secured by the unsold units added to the Condominium pursuant to Phasing Amendment 17.

The Zoning Appeal Case filed in the Land Court has been dismissed by the Stipulation. As a result, it appears that Plaintiffs no longer challenge the validity of the Building 39 Permit. If the Building 39 Permit is valid, then it would appear that Phasing Amendment 17 is also valid. If Phasing Amendment 17 was a valid submission of Units 298-303 to the Condominium, then those units are still security for the Webster Mortgage. Accordingly, the Webster Mortgage, as it relates to the unsold units, still has substantial value. Based on the foregoing, I find that the Webster Mortgage is secured by all unsold units in Building 39 to the extent that such units were added to the Condominium pursuant to Phasing Amendment 17. [Note 30]

B. The Residual Undeclared Land:

As to the remaining issues relative to this dispute, the Webster Mortgage secured (1) the Mortgaged Land (which included all of the Residual Undeclared Land), and (2) the Revived Phasing Rights pursuant to the Settlement Agreement and the Instrument of Revival. Plaintiffs argue that the Webster Mortgage secured the Revived Phasing Rights only, and because the Revived Phasing Rights have expired, so did the Webster Mortgage. Plaintiffs’ argument in this regard is simply erroneous. By its plain terms, quoted in relevant part, supra, the Webster Mortgage was secured by both the Revived Phasing Rights and the Mortgaged Land. These are two separate real estate interests.

There are at least two prior Land Court cases that discussed similar issues, but were factually distinct. See Crapser v. Bondsville Partners, Inc., 14 LCR 432 , 433-434 (2006); Lebowitz v. Heritage Heights, Inc., 4 LCR 48 (1996). In Crapser, the declarant submitted to condominium status, via the express terms of the master deed, the entire parcel to be developed (including all land to be phased in the future). As a result, the declarant no longer held the fee interest in the land to be developed; the declarant merely had the right to built units as part of the condominium, i.e. phasing rights. The declarant then granted a mortgage on “all common areas of the condominium.” This court held that upon expiration of the phasing rights, the declarant no longer had any interest in any part of the condominium land or buildings and therefore the mortgagee no longer had any interest in the same. Similarly, in Lebowitz, at the outset the declarant submitted the entire parcel to be developed as part of the condominium to “the provisions of G.L. c. 183A,” and as a result the declarant retained no fee interest in such land. The declarant subsequently granted a mortgage secured by the condominium property. The Land Court ruled that

those areas not allocated for units constituted common area, including the land designated for development of future phases...The fee in the common areas, including that portion allocated for phase 8, was not retained by developer by the terms of the Master Deed....[and as a result] the security the bank received was the right to complete the phases not yet built by the developer.

Lebowitz, supra. As a result, when the phasing rights expired, so did the mortgagee’s interest in said rights.

As noted, supra, this case is different from both Crapser and Lebowitz, because at the time Andover executed the Master Deed, it retained the fee interest in all of the Additional Land. In Crapser and Lebowitz, the declarant of the respective condominiums submitted the entire parcel to be developed to condominium status pursuant to G.L. c. 183A and the respective master deeds. Contrary to Plaintiffs’ contention, it is clear that the Revived Phasing Rights and the Mortgaged Land are distinct interests. This court agrees with Plaintiffs that when the Revived Phasing Rights expired, whatever interest Webster had (a security interest) in the Revived Phasing Rights expired therewith. The main issue, as this court sees it, is whether Webster has any interest in the Residual Undeclared Land, separate from the Revived Phasing Rights.

At the time GFI granted the Webster Mortgage, such mortgage was an encumbrance on the Mortgaged Land, which included all of the Residual Undeclared Land. Plaintiffs contend that GFI was required to submit the Residual Undeclared Land to condominium status, whether or not units, buildings and/or improvements had been constructed thereon, prior to July 26, 2011 (which GFI did), and as a result the Instrument of Revival and the Settlement Agreement altered the landscape compared to the status created by the Master Deed. Section 20.6 of the Master Deed stated that Andover (and its successors, i.e. GFI) had the right, but not the obligation, to submit any portion of the Additional Land, with buildings or units thereon, to the Condominium. Pursuant to the Settlement Agreement and Instrument of Revival, however, GFI did in fact have the obligation to submit all of the Undeclared Land to the Condominium on or before the Phasing Deadline.

Plaintiffs further contend that, when the Webster Mortgage was executed, Webster was on notice of the Settlement Agreement and the Instrument of Revival, and therefore Webster was on notice that GFI had the obligation to submit the Undeclared Land to the Condominium prior to the Phasing Deadline and that GFI had no right to add any building or unit to the Condominium after the Phasing Deadline. [Note 31] As a result, Plaintiffs contend, when GFI executed the Webster Mortgage, it could grant to Webster, with mortgage covenants, only the rights which it had in the Mortgaged Land. Plaintiffs argue that Webster’s rights in the Mortgaged Land automatically terminated upon the expiration of the Revived Phasing Rights and correspondingly, Plaintiffs’ interest automatically vested, free of any liens, in any portions of the Mortgaged Land that had not been submitted to condominium status on or before the Phasing Deadline. Since the Instrument of Revival and Settlement Agreement were recorded, Webster had at least constructive knowledge of their terms. As a result, Webster knew that the Mortgaged Land would become a part of the Condominium as of the date of the Phasing Deadline, and that as of such date GFI would have no further rights to build on the Mortgaged Land or to submit any additional building or land to the Condominium.

Webster concedes that whatever rights it received in the Revived Phasing Rights and the Mortgaged Land are derivative of those rights held by GFI. Although GFI owned the fee interest in the Mortgage Land when it granted the Webster Mortgage, its fees rights were limited by the Settlement Agreement and Instrument of Revival. The Settlement Agreement and Instrument of Revival created a condition subsequent by which the rights held by GFI at the Webster Mortgage’s execution would pass from GFI to the Condominium. [Note 32] See Faneuil Investors Group v. Board of Selectmen of Dennis, 458 Mass. 1 , 8 (2010); Queler v. Skowron, 438 Mass. 304 , 311 (2002); Board of Selectmen of Provincetown v. Attorney General, 15 Mass. App. Ct. 639 , 644-645 (1983). Pursuant to these documents, GFI was contractually obligated to submit, inter alia, the Mortgaged Land to the Condominium on or before the Phasing Deadline. Therefore, GFI no longer had any rights in the Residual Undeclared Land upon the Phasing Deadline and all rights in the Residual Undeclared Land passed to the Condominium as common area according to the Instrument of Revival and the Settlement Agreement. Webster was on at least constructive notice of the bargain, agreement, and respective rights of GFI and Plaintiffs. [Note 33] Thus, Webster, as mortgagee, could only acquire such title through the Webster Mortgage as GFI (as the mortgagor) possessed and had the capacity to grant. See Coraccio v. Lowell Five Cents Sav. Bank, 415 Mass. 145 , 151-152 (1993). In light of the condition subsequent created by the Settlement Agreement and Instrument of Revival, GFI only had the capacity to grant Webster a mortgage until such time the as GFI’s rights in the Residual Undeclared Land passed to the Condominium on or before the Phasing Deadline.

It is clear that at the time of the Webster Mortgage, GFI’s interest in the Mortgaged Land was limited by Plaintiffs’ interest in the same. In essence Plaintiffs had a future interest or the right to acquire whatever portions of the Mortgaged Land that had not been developed prior to the Phasing Deadline. Plaintiffs were never a party to the Webster Mortgage, and accordingly the Webster Mortgage cannot secure whatever future interest or contractual rights were held by Plaintiffs. Those future interests and/or contractual rights vested in Plaintiffs upon the Phasing Deadline and the submission of the Residual Undeclared Land to the Condominium pursuant to Phasing Amendment 18. Upon said vesting, GFI no longer had any rights in the Mortgaged Land, Plaintiffs’ rights had vested, and because Plaintiffs were not a party to the Webster Mortgage, Webster’s interest in the Mortgaged Land became a nullity. [Note 34] Although factually distinct based on fee interest in the respective undeveloped land, the conclusion in the case at bar is similar to that in Crapser and Lebowitz, primarily based on the Instrument of Revival and the Settlement Agreement. As stated in Lebowitz, “[t]he interest of Lawrence Savings Bank, as developer’s mortgagee, are dependent upon the determination of the mortgagor’s title.” The Residual Undeclared Land, a subset of the Mortgaged Land, became common area and owned by Plaintiffs. The security received by Webster did not include any interest in land held by Plaintiffs.

Based on the foregoing analysis, I find that the Webster Mortgage is a cloud on the title of the Residual Undeclared Land and does not apply to the Residual Undeclared Land. [Note 35] This analysis would also apply to the Allyn Lien, the Pacella/DePalma Mortgage, and the National Lumber Lien. Accordingly, I find that the Allyn Lien, the Pacella/DePalma Mortgage, and the National Lumber Lien are each a cloud on the title of the Residual Undeclared Land and do not apply to the Residual Undeclared Land. [Note 36]/ [Note 37]/ [Note 38]

As a result of the foregoing, Plaintiffs’ Motion for Reconsideration of Land Court Decision 1 is ALLOWED relating to the Residual Undeclared Land but DENIED relating to the unsold units in Building 39 [Note 39], and Plaintiffs’ Motion for Summary Judgment is ALLOWED relating to the Residual Undeclared Land but DENIED relating to the unsold units in Building 39. In the same regard, Webster’s Motion for Summary Judgment is ALLOWED in part and DENIED in part, and Allyn’s Motion for Summary Judgment is ALLOWED in part and DENIED in part.

Judgment to enter accordingly.