Each of the parties owns property in a subdivision in Acton that is the subject of a set of restrictions put into effect in March 1980. The lots subject to the restrictions were subdivided and reconfigured multiple times over the succeeding years, and multiple amendments to the restrictions were recorded. The original restrictions provided that they expired in 30 years, or in March 2010; it was only in the fourth amendment to the restrictions that provision for extending the restrictions were added. Also added in that fourth amendment was a restriction on further subdivision of the subject lots. The parties now dispute whether the restrictions, including the restriction on further subdivision, expired in 2010 or were extended, and have filed cross- motions for summary judgment. While the parties are beneficiaries of the restrictions with the power to enforce them, the restrictions expired in March 2010 and could not be extended. An issue remains as to whether the portion of the restrictions directed to a common driveway easement and the obligation of lot owners to contribute to maintenance survives as an equitable servitude.
Procedural Background
The plaintiffs Ralf Berger, Melissa Berger, Mary Ann Foley, Frank Foley, Kevin Donohue, Mary Haller, Nijan Datar, Teresa Datar, Mark Lagunowich, Kathryn Lagunowich, Katharine Larsson and Amaro Laria (hereinafter the Neighbors) filed their complaint in case no. 13 MISC 480363 on November 1, 2013, naming as defendants Robert Batts and Lexington Holdings, LLC. Plaintiffs filed their first amended complaint on November 12, 2013, naming as defendants 2 Wyndcliff, LLC and Robert H. Batts, Jr. Trustee of The Roberts H. Batts, Jr. Family Trust.
The plaintiffs 2 Wyndcliff, LLC and Robert H. Batts, Jr., Trustee of the Robert H. Batts, Jr., Family Trust (hereinafter the Owners) filed their complaint in case no. 13 MISC 480382 on November 1, 2013, naming as interested parties Mark J. Lagunowich, Kathryn E. Lagunowich, Amaro J. Laria, Katharine M. Larsson, Kevin J. Donohue, Mary L. Haller, John J. Bonica, Christine M. Bonica, Nijan Datar, Teresa Datar, Jianxiu Hao, Yushuang Wang Hao, Ralf Berger, Melissa Berger, Francis J. Foley, Mary Ann Foley, Devashish Chintamani, Nirupami Chintamani, John P. Sloan, Donald Sloan, Beth Ann Sloan, Kin L. Lye, Amanda D. Lye, Jay Jie Shi, Nan Ye, Michael J. Shih, Jenny Yan, Thomas J. Whalen Trustee of Michael Realty Trust, Hillside Place Condominiums, Woodvale Condominiums, Town of Acton and Water Supply District of Acton.
The case management conference for both 13 MISC 480363 and 13 MISC 480382 was held on December 4, 2013, at which the court determined that they would be treated as companion cases. On December 17, 2013 the Owners filed their answer to the Neighbors first amended complaint in 13 MISC 480363. The Neighbors filed their answer in 13 MISC 480382 on January 6, 2014. The Water Supply District of Acton filed answers to both the first amended complaint in 13 MISC 480363 and the original complaint in 13 MISC 480382 on January 10, 2014. A continued case management conference in the companion cases was held on January 23, 2014.
On March 31, 2014 the Neighbors filed the Motion for Summary Judgment by Ralf and Melissa Berger, Mary Ann and Frank Foley, Kevin Donohoe and Mary Haller, Nijan and Theresa Datar, Mark and Kathryn Lagunowich, and Katharine Larsson and Amaro Laria (Neighbors Motion for Summary Judgment) with an accompanying memorandum of law, and the Owners filed the Motion of 2 Wyndcliff, LLC and Robert H. Batts, Jr., Trustee of the Robert H. Batts, Jr., Family Trust for Summary Judgment (Owners Motion for Summary Judgment) with an accompanying memorandum of law, along with the Parties Agreed Statement of Material Facts and Appendix (together, the cross-motions for summary judgment). The Neighbors and the Owners each filed their memoranda of law in opposition to the others cross- motions for summary judgment on May 5, 2014. That day, the Owners also filed the Motion of 2 Wyndcliff, LLC and Robert H. Batts, Jr., Trustee of the Robert H. Batts, Jr., Family Trust for Leave to Amend Answer (Motion to Amend Answer) and the Mass. R. Civ. P. 56(f) Affidavit of Robert H. Batts, Jr., Trustee of the Robert H. Batts, Jr., Family Trust (Rule 56(f) Request). The court heard argument on the cross-motions for summary judgment on May 15, 2014. At that hearing, the Motion to Amend Answer was allowed and the amended answer was deemed filed. The Rule 56(f) Request was allowed, and the court determined that the cross-motions with respect to the claim of estoppel and the defense of unclean hands would not be considered. The court took the remainder of the cross-motions for summary judgment under advisement. This Memorandum and Order follows.
Summary Judgment Standard
Summary judgment may be entered if the pleadings, depositions, answers to interrogatories, and responses to requests for admission
together with affidavit
show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c). Summary judgment is appropriate when, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law. Regis Coll. v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). The burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving partys case. Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991).
In viewing the factual record presented as part of the motion, the court is to draw all logically permissible inferences from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). Where, as here, the parties have presented cross-motions relying solely on undisputed recorded instruments, the court may interpret the meaning of these instruments, including the intent of the parties to the instruments, as a matter of law. World Species List Natural Features Registry Inst. v. Reading, 75 Mass. App. Ct. 302 , 305 (2009); Rivers v. Warwick, 37 Mass. App. Ct. 593 , 596 (1994); see Asian Am. Civic Assn v. Chinese Consolidated Benevolent Assn of New Eng., Inc., 43 Mass. App. Ct. 145 , 148 (1997).
Factual Background
Based on the record, it appears the following facts are undisputed:
2 Wyndcliff, LCC is a Massachusetts limited liability corporation with a usual place of business at 2 Wyndcliff Drive, Acton, Middlesex County, Massachusetts (the LLC). The LLC holds the record title to the property at 2 Wyndcliff Road, Acton, Middlesex County, Massachusetts, by a deed dated September 20, 2013 and recorded in the Middlesex South Registry of Deeds (registry) at Book 62665, Page 539.
Robert H. Batts, Jr., is the Trustee of The Robert H. Batts, Jr. Family Trust (Trustee), under a Certificate of Trust recorded in the registry at Book 56390, Page 521. The Trustee holds the record title to the property at 14 Wyndcliff Drive, Acton, Middlesex County, Massachusetts, by a deed dated January 26, 2011 and recorded in the registry at Book 56390, Page 524.
Ralf Berger and Melissa Berger are individuals who own and reside at the property at 16 Wyndcliff Drive, Acton, Middlesex County, Massachusetts, by a deed dated August 15, 2000 and recorded in the registry at Book 31713, Page 468. At all relevant times, Ralf Berger and Melissa Berger have been husband and wife.
Mary Ann Foley and Frank Foley are individuals who own and reside at the property at 18 Wyndcliff Drive, Acton, Middlesex County, Massachusetts, by a deed dated November 29, 1995 and recorded in the registry at Book 25853, Page 412. At all relevant times, Mary Ann Foley and Frank Foley have been husband and wife.
Kevin Donohoe and Mary Haller and individuals who own and reside at the property at 5 Wyndcliff Drive, Acton, Middlesex County, Massachusetts, by a deed dated September 8, 2003 and recorded in the registry at Book 40824, Page 002. At all relevant times, Kevin Donohoe and Mary Haller have been husband and wife.
Nijan Datar and Teresa Datar are individuals who own and reside at the property at 15 Wyndcliff Drive, Acton, Middlesex County, Massachusetts, by a deed dated September 28, 1996 and recorded in the registry at Book 26735, Page 530. At all relevant times Nijan Datar and Teresa Datar have been husband and wife.
Mark Lagunowich and Kathryn Lagunowich are individuals who own and reside at the property at 13 Wyndcliff Drive, Acton, Middlesex County, Massachusetts, by a deed dated September 24, 1995 and recorded in the registry at Book 25839, Page 069. At all relevant times, Mark Lagunowich and Kathryn Lagunowich have been husband and wife.
Katherine Larsson and Amaro Laria are individuals who own and reside at the property at 8 Wyndcliff Drive, Acton, Middlesex County, Massachusetts, by a deed dated September 2, 2004 and record in the registry at Book 43693, Page 98. At all relevant times, Katherine Larsson and Amaro Laria have been husband and wife.
With the exception of Melissa Berger, each of the parties identified above is an owner of a lot or lots referenced in the Protective Covenants and Easements discussed below. As discussed, the LLC and the Trustee are referred to collectively as the Owners and the parties apart from the LLC and the Trustee are referred to collectively as the Neighbors.
On November 26, 1979, the Acton Planning Board endorsed as Approval Under the Subdivision Control Law Not Required a plan entitled Plan of Land in Acton, Mass. Owned by Mabel Jenks McNiff prepared by Acton Survey & Engineering, Inc (Acton Survey), dated October 25, 1979 (the 1979 Plan). App. 9. The 1979 Plan was recorded in the registry at Book 13931, Page 464. The endorsement was never appealed.
Shortly after the 1979 Plan was endorsed, on March 26, 1980, Mabel Jenks McNiff, as grantor, executed a restriction entitled Protective Covenants and Easements and caused it to be recorded in the registry at Book 13931, Page 461 (the Original Covenant). The Original Covenant applied to land on the westerly side of Main Street (Route 27), Acton, Middlesex County, Massachusetts designed as Lots A through I on the 1979 Plan. The Original Covenant provides that it is made
for the purpose of establishing protective covenants or restrictions and easements by Mabel Jenks McNiff . . . , owner of the premises hereinafter described (hereinafter sometimes referred to as the Grantor), and the future mortgagees, buyers, and owners of the premises hereinafter described, which Agreement pertains to and is to run with the lands and lots described hereinafter in Part B of this agreement.
App. 10. Among other things, it restricts the use of the subject lots to residential or professional office use, limits building materials and signs, requires architectural review, establishes easements for the use of a common driveway and requires contribution for the driveways maintenance. It provides that [t]hese covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of thirty (30) years from the date these covenants are recorded. These covenants may be amended or revoked, in whole or in part, by an instrument signed by two thirds or more of the then owners of the lots covered hereby. Id.
On or about August 26, 1980, the Acton Water Supply District recorded an Order of Taking in the registry at Book 14044, Page 050, thereby acquiring by eminent domain Lot A on the 1979 Plan, one of the lots identified in the Original Covenant, for water supply purposes. App. 11. On June 29, 1981, the Acton Planning Board endorsed as Approval Under the Subdivision Control Law Not Required a Plan of Land in Acton, Mass. Owned by Mabel Jenks McNiff prepared by Acton Survey, dated June 3, 1981 (the 1981 Plan). App. 12. The 1981 Plan was recorded in the registry at Book 14344, Page End. The Planning Boards endorsement was not appealed. On July 15, 1981, an Amendment of Protective Covenants and Easements was recorded in the registry at Book 14350, Page 294 (the First Amended Covenant). The First Amended Covenant applied to the land on the westerly side of Main Street, Acton, Massachusetts, designated as Lots B-1 through I-1 on the 1981 Plan. App. 13.
On August 13, 1986, the Acton Planning Board endorsed as Approval Under the Subdivision Control Law Not Required a Plan of Land in Acton, Mass. Owned by Glen L. & J. Brooke Nichols prepared by Acton Survey and dated August 1, 1986 (the 1986 Plan). App. 14. The 1986 Plan was recorded in the registry at Book 17423, Page 103. The Planning Boards endorsement was not appealed. On June 17, 1987, an Amendment #2 of Protective Covenants and Easements dated June 16, 1987 was recorded in the registry at Book 18233, Page 162 (the Second Amended Covenant). App. 15. The Second Amended Covenant applied to that land on the westerly side of Main Street, Acton, MA, designed as Lots B-1, C-1, D-1, E-1, F- 1, H-1, I-1, G-2, and G-3 on the 1981 Plan as amended by the 1986 Plan. The Second Amended Covenant did not reference Lot G-4 on the 1981 Plan.
On August 24, 1987, the Acton Planning Board endorsed as Approval Under the Subdivision Control Law Not Required a Plan of Land in Acton, Mass. (Middlesex County) for Spiers prepared by Stamski and McNary, Inc., dated August 10, 1987 and revised August 1987 (the 1987 Plan). App. 16. The 1987 Plan was recorded in the registry at Book 18500, Page 243. The Planning Boards endorsement was not appealed. On October 2, 1987, an Amendment #3 of Protective Covenants and Easements dated August 20, 1987 was recorded in the registry at Book 18597, Page 572 (the Third Amended Covenant). The Third Amended Covenant applied to the land on the westerly side of Main Street, Acton, Massachusetts, designated as Lots B-1, C-1, D-1, E-1, F-1, H-1, G-2, G-3, I-1A, and I-1B on the 1981 Plan as amended by the 1986 and 1987 Plans. App. 17.
In or about April, 1995, the Acton Planning Board endorsed as Approval Under the Subdivision Control Law Not Required a Plan of Land in Acton, Massachusetts for Reeves prepared by Stamski and McNary, Inc., dated March 23, 1995 (the 1995 Plan). The 1995 Plan was recorded in the registry at Book 25770, Page 230. The Planning Boards endorsement was not appealed.
On January 3, 2002, an Amendment #4 of Protective Covenants and Easements (Wyndcliff Drive, Acton, Massachusetts) dated December 7, 2001 was recorded in the registry at Book 34495, Page 025 (the Fourth Amended Covenant). The Fourth Amended Covenant applied to the westerly side of Main Street, Acton, Massachusetts designated as Lots C-1, D-1, E-1, F-1, H-1, G-2, G-3, I-1A, I-1B, 9 and 10 on the 1981 Plan as amended by the 1986, 1987 and 1995 Plans. App. 19. In addition to referencing the 1995 Plan, the Fourth Amended Covenant restated the Original Covenant and amended and added some provisions. In particular, it changed the term of the Original Covenant as follows:
These Protective Covenants and Easements are to run with the land and shall be binding on all of the Lots until March 26, 2010. Thereafter, these Protective Covenants and Easements may be extended for further periods of not more than twenty (20) years at a time by owners of record, at the time of recording of the extension, of two-thirds (2/3) or more of the Lots and also comprising fifty percent (50%) or more of the land area of all of the Lots, if such extension, duly executed by the aforesaid Lot owners, is recorded before the expiration of the aforesaid twenty (20) years or the specified extension term if less than twenty (20) years. Any initial extension must be recorded prior to March 26, 2010 and any subsequent extension(s) must be recorded prior to the expiration of the last previously recorded extension in order to be effective.
Id. It also added a paragraph C-10, entitled No Further Subdivision, which provided that [n]o Lot shall be further subdivided in any manner whatsoever. Id. On July 18, 2002, an Extension of Protective Covenants and Easements was recorded in the registry at Book 35918, Page 194 (the 2002 Extension). App. 20.
On August 21, 2012, the Acton Planning Board endorsed as Approval Under the Subdivision Control Law Not Required a Plan of Land in Acton, Massachusetts Prepared for Lexington Holdings, LLC prepared by Tauper Land Survey, Inc., dated August 2012 (the 2012 Plan). App. 21. The 2012 Plan was recorded in the registry as Plan No. 839 of 2012. The Planning Boards endorsement was not appealed. On March 26, 2013, an Amendment #5 of Protective Covenants and Easements Wyndcliff Drive, Acton, Massachusetts dated November 14, 2012 was recorded in the registry at Book 61469, Page 454 (the Fifth Amended Covenant). The Fifth Amended Covenant applied to the land on the westerly side of Main Street, Acton, Massachusetts, designated as Lots C-1, D-1, E-1, H-1, G-2, G-3, I-1A, I-1B, 9, 10, and 1 on the 1981 Plan as amended by the 1986, 1987, 1995, and 2012 Plans. The Fifth Amended Covenant did not reference Lots 2 and 3 on the 2012 Plan; however, Lot 2 is Lot H-1 as modified by a minor land swap shown on the 2012 Plan. App. 22.
The Owners and the Neighbors, with the exception of Melissa Berger, are the owners of lots referenced in the Original Covenant as amended, as described above.
Discussion
The cross-motions for summary judgment present three questions: (1) whether the Neighbors have the authority to enforce the Original Covenant, as amended; (2) if the Neighbors do have standing to enforce the Original Covenant, as amended, whether the Fourth Amended Covenants adjustment to the Original Covenants term limit, allowing for extensions, was proper or effective; and (3) whether the Original Covenant, as amended, created an equitable servitude that survives expiration of the restrictions of the Original Covenant and may be used to enforce the restriction on subdivision even if the Original Covenant has expired.
I. Neighbors Standing
Restrictions that were imposed after December 31, 1961, such as the Original Covenant, are governed by G.L. c. 184, § 27. Section 27 establishes very specific criteria for drafting restrictions. Section § 27(a) provides that an individual may only seek enforcement of a restriction if the person (1) is a party to the instrument imposing the restrictions and it is stated to be for his benefit or is entitled to such benefit as a successor to such a party, or (2) is an owner of an interest in benefited 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 benefited. G.L. c. 184, § 27(a) (emphasis added). Courts have construed the language of G.L. c. 184, § 27 strictly. The intent of the legislature in enacting G.L. c. 184, § 27, was to remove obstacles to the optimal use of land by providing clearer and more definitive rules for the enforcement of restrictions. Brear v. Fagan, 447 Mass. 68 , 73-74 (2006); Stop & Shop Supermarket Co. v. Urstadt Biddle Props. Inc., 433 Mass. 285 , 290 (2001). It is for these reasons that the SJC in Brear held that § 27(a)(1) was to be interpreted according to its terms: the only parties to the restriction who may enforce it are ones who are expressly named in the restriction as beneficiaries. No one, not even the grantor of the restriction, can be inferred to be a beneficiary. Brear, 447 Mass. at 73. No party was eligible to enforce the subject restriction because the original document failed to clearly define any benefiting parties. 447 Mass. at 75-76.
The court in Brear left open the interpretation of § 27(a)(2). Id. at 73 n.5. In Rosenfeld v. Zoning Bd. of Appeals of Mendon, 78 Mass. App. Ct. 677 (2011), the Appeals Court resolved this open question. In Rosenfeld, the court held that § 27(a)(2) should be interpreted to mean that an owner of land that adjoins the restricted land is entitled to enforce a deed restriction, whether or not the instrument imposing the restriction contains an express statement that the adjoining land is intended to benefit from the restriction. Id. at 682. Whether a parcel adjoins the restricted land at the time enforcement is sought is a factual issue. Id. at 683. Applying Rosenfeld, the Neighbors who own property currently abutting the land subject to the restrictions of the Original Covenant, as amended, are within their right to enforce the restrictions even if the Original Covenant, as amended, failed to explicitly name them as beneficiaries. This theory of standing only applies to those properties that directly abut the subject properties. It appears that Mary Ann and Frank Foley who own lots 10, 10A and 10B, Mark and Kathryn Lagunowich who own lot E-1, and Amaro Laria and Katharine Larsson who own lot G-2 may own property that directly abuts the subject land and therefore have standing to enforce the restriction regardless of whether they had been named as benefited parties. The record is not clear enough, however, to find as an undisputed fact that these Neighbors are currently abutters.
Nevertheless, all of the Neighbors can establish their standing under the holding in Brear: they or their properties are named as beneficiaries in the Original Covenant or its amendments. The Original Covenant, as amended, does not explicitly name any person or any property as a beneficiary of its restrictions. The Original Covenant does, however, set forth who is entitled to enforce its restrictions: Enforcement shall be by proceedings at law or in equity by any owner against any person or persons violating or attempting to violate any covenant either to restrain violation or to recover damages. (emphasis added). App. 10, ¶ C-9. The Enforcement section of the Original Covenant is effective to identify intended beneficiaries of its restrictions. Although a restriction must explicitly identify its beneficiaries, [n]o particular formula of words is required by the statute to do so. Atwood v. Walter, 47 Mass. App. Ct. 508 , 512 (1999) (where the requirements in § 27(a)(1) were satisfied by language in a restriction that stated that it shall be enforceable by certain parties). Parties that are explicitly given the authority to enforce a restriction are the same parties who were intended to benefit from a restriction. Id.; see Brear, 447 Mass. at 75 (citing Atwood).
The Original Covenant gives any owner the right to enforce its restrictions. App. 10, ¶ C-9. It defines owners as Mabel Jenks McNiff or the future mortgagees, buyers, and owners of the premises hereinafter described. Id. at Part A. The Neighbors are such owners, and are entitled to enforce the restrictions of the Original Covenant, as amended. They are therefore beneficiaries under § 27(a)(1).
II. Fourth Amended Covenants Amendment of Original Covenant to Allow For Extensions
While the Neighbors are entitled to enforce the restrictions of the Original Covenant, as amended, those restrictions cannot be enforced because, notwithstanding the Fourth Amended Covenants amendment to allow for their extension, they expired by their terms on March 26, 2010, thirty years after the date the Original Covenant was recorded. App. 10, ¶ C-8; App. 19, ¶ C-8. [Note 1] The Owners argue that the Fourth Amended Covenant that allowed for extensions of the Original Covenant could not appropriately extend the Original Covenants term, because extensions were not provided for in the Original Covenant. General Laws c. 184, § 27(b)(1) provides, in part, that no restriction imposed after December thirty-first, nineteen hundred and sixty-one shall be enforceable
after thirty years from the imposition of the restriction, unless (1) the restriction is imposed as part of a common scheme applicable to four or more parcels contiguous except for any intervening streets or ways, and provision is made in the instrument or instruments imposing it for extension for further periods of not more than twenty years at a time by owners of record. Id. (emphasis added). [Note 2] The Owners argue that this language means that a restriction must provide for extensions in its original instrument, and because the Original Covenant does not do so, it cannot be extended no matter what the any subsequent amendment might provide. The Neighbors argue that this provision applies to a restriction as amended, and the Fourth Amended Covenant amended the Original Covenant to allow for extensions.
[O]ne of the purposes of the reforms enacted as G.L. c. 184, §§ 26-30, was to enable landowners to rid their land of obsolete restrictions, and to provide definitive endpoints to the term of such restrictions. Brear, 447 Mass. at 77. Therefore, the statute is to be construed as written, in keeping with its plain meaning, see Massachusetts Community College Council v. Labor Relations Commn, 402 Mass. 352 , 354 (1988), so as to give effect to each word, see Bankers Life & Cas. Co. v. Commissioner of Ins., 427 Mass. 136 , 140 (1998). Stop & Shop Supermarket Co., 433 Mass. at 289. As written, § 27(b)(1) requires that provision for extending a restriction must be made in the instrument . . . imposing it. G.L. c. 184, § 27(b)(1). This could be interpreted to mean that provision for extensions must be made in the original restriction, not in any subsequent amendment. The instrument imposing the restriction at issue here is the Original Covenant, which does not provide for extension of its 30-year term. On the other hand, the SJC in Stop and Shop Supermarket Co. noted that the Legislature, however, has not precluded landowners (who otherwise comply with the requirements of §§ 26-30) from bargaining for, and enforcing, beneficial land use restrictions that contain a lengthy, but definite term of duration. Stop and Shop Supermarket Co., 433 Mass. at 285. The court accepted without discussion that the parties to the subject restriction could amend it to change its term. Id. at 287- 289.
The court need not decide this issue. Assuming that the Fourth Amended Covenant validly amended the Original Covenant to provide for extensions, that provision is invalid and the Original Covenant, as amended, expired on March 26, 2010. The Fourth Amended Covenant purports to amend and restate the Original Covenant, as amended. It changes the Original Covenant to provide that it expires on March 26, 2010, but that it may be extended for further periods of not more than twenty (20) years at a time by owners of record . . . , if such extension . . . is recorded before the expiration of the aforesaid twenty (20) years or the specified extension term if less than twenty (20) years. App. 19, ¶ C-8. This extension provision is ineffective. General Laws c. 184, § 27, allowing for extensions, must be read in harmony with G.L. c. 184, § 23, limiting restrictions without a term to thirty years. Permitting restrictions to be extended for successive periods of twenty (20) years at a time, ad infinitum, creates a permanent restriction. It would be anomalous to restrict to thirty years a restriction that the parties intended to last permanently, while allowing one party to create a permanent restriction when the parties originally agreed that the restriction would last only thirty years. Brear, 447 Mass. at 77. Therefore, a restriction can only allow for extensions if it states an outside term of the restriction, even if greater than thirty years, and requires the first extension to be filed before the expiration of an original thirty year term. Id. at 76-77; Jones v. Murphy, 60 Mass. App. Ct. 1 , 6 (2003); see E.C. Mendler, Massachusetts Conveyancers Handbook § 15:14, at 377-378 (4th ed. 2008).
Assuming the Fourth Amended Covenant amended the Original Covenant to allow for extensions, it did not define an explicit term beyond thirty years from its inception; indeed, it defined its term as March 26, 2010. App. 19. Without an explicit term during which extensions could be filed, the extension that was filed under the Fourth Amended Covenant was ineffective. That left the Original Covenant, as amended by the Fourth Amended Covenant, with an expiration date of March 26, 2010. It expired by its terms on March 26, 2010.
III. Restriction Enforceable as an Equitable Servitude
The Neighbors argue that even if the Original Covenant, as amended, is found to have expired they still maintain the authority to enforce the restriction on subdivision and the obligation of all Neighbors and Owners to contribute to the maintenance of Wyndcliff Road under the theory that an equitable servitude has been established. The Neighbors rely primarily on Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85 (1979), and Sullivan v. OConnor, 81 Mass. App. Ct. 200 (2012), as support for this proposition. Whitinsville Plaza is not apposite. That decision concerned only whether covenants not to compete can be held to run with the land.
Whitinsville Plaza, Inc., 378 Mass. at 97. Sullivan, on the other hand, is relevant. In Sullivan, the plaintiffs owned property in a development created in 1929. As part of the development, an unincorporated improvement association was created, by way of a deed of trust recorded in the registry, to hold title to common property and provide and maintain amenities such as playgrounds, parks and roads. Owners in the development were required to pay assessments. Sullivan, 81 Mass. App. Ct. at 201-202. Later, restrictions were recorded on the lots. Id. at 203. The Sullivans bought their property in 1978 with knowledge of the association and the restrictions, and for a while paid their assessment before changing their mind and refusing to pay. Id. at 203-204, 206. In the relevant portion of its opinion, the court held that while the restrictions had expired pursuant to G.L. c. 184, § 28, the obligation to pay assessments was an equitable servitude that ran with the Sullivans property and constituted a continuing obligation. Id. at 213-214.
Applying Sullivan, the restrictions on subdivision of the Original Covenant, as amended, are just thatrestrictions that, as discussed above, have expired. The provisions of the Original Covenant concerning the common driveway easement and the obligation of landowners to contribute to the cost of maintenance, App. 10 at ¶ E-1, on the other hand, may survive as an equitable servitude. The record on summary judgment is insufficient to determine that question one way or the other. The question of an equitable servitude, therefore, must be reserved either for a subsequent summary judgment motion on a better record or for trial.
Conclusion
For the foregoing reasons, the Owners Motion for Summary Judgment is ALLOWED IN PART and the Neighbors Motion for Summary Judgment is DENIED. A status conference is set down for May 7, 2015 at 11:00 am to discuss the next proceedings in this action.
SO ORDERED
RALF BERGER, MELISSA BERGER, MARY ANN FOLEY, FRANK FOLEY, KEVIN DONOHOE, MARY HALLER, NIJAN DATAR, TERESA DATAR, MARK LAGUNOWICH, KATHRYN LAGUNOWICH, KATHARINE LARSSON, and AMARO LARIA, v. 2 WYNDCLIFF, LLC and ROBERT H. BATTS, JR., Trustee of the ROBERT H. BATTS, JR. FAMILY TRUST.