Plaintiff Wildwood Property Owner’s Association, Inc. (the “Association”) filed its unverified Complaint on December 29, 2014, seeking a declaration pursuant to G. L. c. 231A that Defendant, Patricia Pezzillo (“Defendant”), as the owner of property located at 241 Owls Nest Road, [Note 1] Tolland, MA (“Defendant Property”), has an obligation to pay road assessments, lake assessments, and membership dues to the Association, due to the existence of equitable servitudes that burden Defendant Property. The Association also seeks a declaration that Defendant must pay road assessments, lake assessments, and membership dues pursuant to a contract implied-in-fact. Finally, the Association seeks a declaration that Defendant is obligated to pay for her pro rata share of the maintenance costs for the roads and Lake Chamonix, as holder of easement rights to use the roads and lake located within the private community in which Defendant Property is located (“Wildwood”).

Defendant filed her Motion to Dismiss pursuant to Mass. R. Civ. P. 12(b)(6) and Motion for Sanctions pursuant to Mass. R. Civ. P. 11, on April 1, 2015. The Association filed its Opposition to Defendant’s Motion to Dismiss and Defendant’s Motion for Sanctions, and a Cross-Motion for Attorney’s Fees pursuant to G. L. c. 231, § 6F, on April 29, 2015. A hearing was held on July 16, 2015, at which time the matter was taken under advisement.

The following facts taken from the Complaint and documents referenced therein are accepted as true for purposes of this Motion to Dismiss and all reasonable inferences to be drawn therefrom are drawn in favor of Plaintiff, the non-moving party. [Note 2]

1. The Association is a non-profit property owners’ association duly incorporated on May 12, 1972, under the laws of the Commonwealth of Massachusetts with a usual place of business located at 254 Beetle Road, Tolland, MA. [Note 3]

2. Defendant is the record owner of property located at 241 Owls Nest Road, Tolland, MA (Defendant Property) pursuant to a deed from Jeffrey D. Brown and Peggy G. Brown dated November 9, 2000, and recorded with the Hampden County Registry of Deeds (the “Registry”) at Book 11403, Page 314 (“Defendant Deed”). Defendant Property is comprised of two parcels, Lot O-N-37 and Lot O-N-39, as shown on “Plan of Land in Tolland, Mass. Belonging to Chamonix Chalet Properties, Inc.” (“Chamonix”) dated October 6, 1969, prepared by Almer Huntley, Jr. & Associates, Inc. and recorded with the Registry at Plan Book 120, Page 22 (the “1969 Plan”). [Note 4], [Note 5]

3. Defendant Deed contains the following pertinent provisions:

Together with a right-of-way over the roads as shown on [the 1969 Plan] to Beetle Road in said Tolland, together with others lawfully entitled thereto, for all purposes for which highways are commonly used.

Subject to restrictions contained in a deed from [Chamonix] to James L. Warmolts, et ux. Recorded in [the Registry] in Book 3177, Page 360 [the “Warmolts Deed”].

Together with rights, in common with others lawfully entitled thereto, to use Lake Chamonix for the purposes of boating, fishing, and swimming, provided, however, that no power driven boat other than those powered by electric motors of less than five (5) horsepower shall be permitted on said Lake.

4. Chamonix prepared a plan titled “Land in Tolland, Mass. Belonging to Chamonix Chalet Properties, Inc.” dated March 9, 1966 and prepared by Almer Huntley, Jr. & Associates, Inc., recorded with the Registry at Plan Book 102, Page 42 (the “1966 Plan”). The 1966 Plan shows a subdivision of five lots, numbered 1-5, located on Beetle Road, Tolland, Massachusetts.

5. Chamonix conveyed Lot 1 as shown on the 1966 Plan to James Lewis Warmolts and Elizabeth M. Warmolts by deed dated March 23, 1966 and recorded with the Registry at Book 3177, Page 360 (the Warmolts Deed). The Warmolts Deed contained eighteen restrictions related to use of Lot 1 and Lake Chamonix. Restriction 16 provides that “Said lot is conveyed together with rights in common with others lawfully entitled thereto to use Lake Chamonix for purposes of boating, fishing and swimming . . . .” Restriction 18 states “[t]he grantor may vary or amend the above restrictions by instrument duly recorded in [the Registry].” [Note 6]

6. Chamonix recorded the 1969 Plan on October 17, 1969. The 1969 Plan showed fifty-three lots, including Defendant Property. The original deeds out from Chamonix in Defendant’s chain of title for the two lots that comprise Defendant Property (Lots O-N-37 and O-N-39) are as follows:

A. A deed from Chamonix to Walter D. Redin, Norma T. Redin and Mary V. Redin, as joint tenants of Lot O-N-37, dated June 4, 1970 and recorded with the Registry at Book 3510, Page 534 (the “Redin Deed”).

B. A deed from Chamonix to Roger I. Briggs and Joan Briggs of Lot O-N-39 dated April 17, 1970 and recorded with the Registry at Book 3502, Page 597 (the “Briggs Deed”).

Like Defendant Deed, the Briggs Deed and the Redin Deed both have the identical three provisions noted above and also reference the Warmolts Deed.

7. Chamonix prepared a plan titled “Plan of Chamonix Chalet Properties, Inc. in Tolland, Massachusetts – Master Plan” dated February 24, 1971, prepared by Almer Huntley, Jr. & Associates, Inc. and recorded with the Registry at Plan Book 127, Page 10 (the “1971 Plan”). The 1971 Plan showed hundreds of lots, including the fifty-three lot subdivision as shown on the 1969 Plan and the five lot subdivision as shown on the 1966 Plan.

8. The Association was formed on May 12, 1972, pursuant to M.G.L. c. 180 to operate and manage properties held in common at Wildwood, maintain the lakes and dam, maintain the roads and ways, and assess and collect assessments that are used to pay for said amenities and maintenance.

9. Chamonix and the Wildwood Realty Trust [Note 7] conveyed four large parcels referenced as “Wildwood,” including recreational and common areas shown on the 1971 Plan, to the Association by deed dated May 6, 1975 and recorded with the Registryat Book 4126, Page 136 (the “Association Deed”). The Association Deed stated that the Association must maintain the “buildings, structures, dams, lakes, beaches, roadways, drainage, pipes, ducts, cables, playgrounds, lawn areas, parking lots, landscaped areas and structures” that existed on the property transferred to the Association, or that would be constructed or located on the property transferred to the Association. The Association Deed stated

However, upon sale of lots by Chamonix Chalet Properties, Inc., the purchaser shall be required as a condition of said use of Lake Chamonix, Otter Pond and the parking spaces as aforesaid, to be a member in good standing of the Grantee . . . .

. . . .

The above covenants and restrictions, numbered 1 through 9 herein, shall run with and bind the land and shall inure to and benefit of and be enforceable by the owner of any lot in Wildwood who is a member in good standing of the grantee, pursuant to its Bylaws, including having paid to date his membership dues and/or assessments in full, their respective heirs, successors and assigns, for a term of twenty (20) years from the date of this instrument after which said covenants shall be automatically extended for successive periods of ten (10) years, unless an instrument signed by the then owner/members of two-thirds (2/3) of the Lots represented by members has been recorded, agreeing to change said covenants and restrictions in whole or in part.

10. Prior to the Association acquiring its interest in the common elements of Wildwood, Chamonix had conveyed lots to various individuals in over 360 deeds that contained restrictions referencing the Warmolts Deed.

11. Wildwood includes various common elements, including: two lakes (Lake Chamonix and Otter Lake), five beaches, lawns, landscaped areas, parking areas, a clubhouse, bath houses, tennis courts and approximately eleven miles of roadways that provide access to individual lots and the recreational facilities. [Note 8]

12. The Association maintains all areas of Wildwood not owned by individuals. Maintenance of Wildwood includes, but is not limited to, maintaining the lakes, dam, beaches, roads including sanding, plowing and paving, landscaping, and carrying insurance.

13. Wildwood contains signs stating the community’s status as private, has unique roads, and private access to the lakes. The clubhouse and other recreational facilities contain signs indicating the existence of a private association. [Note 9]

14. The Association has promulgated certain policies and By-laws relative to the upkeep of Wildwood and the enforcement of the obligations of property owners to pay membership dues and assessments, including:

A. A document entitled “Wildwood Property Owners Association, Inc. Board of Directors Resolution Collection of Dues” dated September 11, 1990, and recorded with the Registry at Book 7564, Page 449 (the “Association Resolution”); and

B. A document entitled “Bylaws of Wildwood Property Owners Association, Inc.” dated May 18, 1997 and recorded on July 21, 1997 with the Registry at Book 9935, Page 320 (the “Association By-laws”); and

C. A document entitled Declaration of Covenants, Easements Restrictions and Association” dated May 17, 1998, and recorded on June 19, 1998 with the Registry at Book 10331, Page 224 (the “Association Declaration”). [Note 10]

15. Article 1 (Membership), Section 1 of the Association By-laws states:

All owners of property at Wildwood shall be Association members by virtue of a recorded deed and/or land sales contract, and shall include those persons who have or shall in the future purchase property or become owners of property by other conveyances from any previous Association members of record. The acceptance of a Membership or the act of using the properties held in common shall constitute an agreement that these Bylaws, the Rules and Regulations as they are amended from time to time, and the provisions of the Association deed shall be complied with. Each lot owner having a right to membership in the Association and each membership in the Association is subject to a reciprocal obligation to contribute to the dues and assessments for the maintenance and operation of the properties held in common and such other assessments and dues as defined in ARTICLE X.

16. The Association Declaration states that it is made by the Association and by “divers owners of lots . . . who have submitted their lots to the terms and provisions of this Declaration by the executionof Declarationsof Joinder recorded simultaneouslyherewithand/or subsequent hereto.” The Association Declaration enumerates several restrictions on lots and community areas and facilities, that are made to run with the land to successors and assigns of the owners who execute a Declaration of Joinder (termed “Member Lot Owners”). Article V of the Association Declaration, entitled “Road and Lake Expenses of Non-Sublet Lots,” states:

In such event as all Lots in Wildwood are not subject hereto, the Association shall act on behalf of and as attorney-in-fact for all Member Lot Owners and Lots subject hereto in seeking contribution from such Lots and Lot Owners as are not subject hereto upon the obligations flowing from such non-member Lots and Lot Owners’ rights validly reserved in their deeds or implied at law, including representing the Member Lot Owners and their Lots in any proceeding under Massachusetts General Laws, Chapter 84, Section 12, its equivalent, or similar law. Any sums obtained from such Non-member Lot Owners shall be added to the revenues of the Association and utilized for the operation and maintenance of the Community Areas and Facilities.

17. The Association derives its primary income to pay for the expenses of the maintenance of Wildwood from Association membership dues, road assessments, and lake assessments, which are assessed to property owners within Wildwood on January 1st of each year. The Association levies two separate types of dues and assessments against lot owners within Wildwood:

A. An assessment charged to every lot owner within Wildwood for the maintenance of the roads and Lake Chamonix, which all lot owners have a right to use by their respective deeds; and

B. Membership dues charged to those lot owners who elect to be members of the Association, and thus have the right to use common facilities maintained by the Association, such as the clubhouse, beach, tennis courts, etc.

18. There is no allegation in the Complaint that Defendant (or her predecessor(s) in interest) has ever executed a Declaration of Joinder pursuant to the Association Declaration. Defendant also never informed the Association that she does not want to be a member. Since acquiring Defendant Property in 2000, Defendant has made payments for the road assessments, lake assessments, and membership dues assessed by the Association, but has not always paid in full. [Note 11] Defendant has also attended events held exclusively for members of the Association, and used the roads, both lakes, and other common facilities and amenities located within Wildwood since taking title to Defendant Property.

19. As of December 19, 2014, Defendant is in arrears on road assessments, lake assessments, membership dues, and interest in the amount of $13,962.47.

20. The Association previously brought a similar case in the Land Court to the one at bar. In Wildwood Property Owners Assoc., Inc. v. Frank, 3 LCR 227 (1995) (Misc. Case No. 179026) (Kilborn, J.), 43 Mass. App. Ct. 1102 , 96-P-460 (1997) (Rule 1:28 Decision) (the “Frank Decision”), the Association sought to collect road assessments, lake assessments, and membership dues from Mr. Frank, a different owner of certain lots within Wildwood. Mr. Frank had purchased lots within Wildwood in 1986, over a dozen years after the creation of the Association in 1972. However, Mr. Frank’s chain of title, like Defendant’s, did not originate within the same chain as the Association’s and his root deed preceded the creation of the Association. Like Defendant’s root deed in this case, Mr. Frank’s root deed gave appurtenant rights to use the roads and Lake Chamonix, and referenced restrictions in an earlier deed (the Warmolts Deed).

The Land Court (Kilborn, J.) had ruled on cross-motions for summary judgment that Mr. Frank’s chain of title did not put him on actual or constructive notice of the obligations to pay road assessments, lake assessments, and membership dues. Frank, 3 LCR at 227, 229. A trial was held on the remaining issues. Turning to whether Mr. Frank had actual notice of the obligation to pay assessments and dues, the Land Court found that:

The Association has not established that the physical situation of Wildwood when the Franks purchased their lots was such that an implied contract arose binding Mr. Frank to the assessment scheme set forth in the Association’s documents, and in particular binding him to the expenses beyond those associated with roads and lakes. It was apparent from the physical indicia in 1986 that Wildwood was a separate, private, community, but the physical indicia were not such as to establish the implied contract suggested by the Association.

Id. at 229. Moreover, although Mr. Frank received some version of the Association By-laws prior to purchasing his Wildwood lots, the Association failed to prove the contents of those by-laws, other than that Mr. Frank had notice of the first sentence. [Note 12] The Land Court (Kilborn, J.) thus concluded:

Mr. Frank is chargeable with the first sentence of Article I, Section 1 of the by-laws whether he read them or not (he points out there is no evidence he did). However, that first sentence is not enough to impose on him the liabilities urged by the Association.

Id. Accordingly, the Land Court found that Mr. Frank’s liability to the Association was limited to his share of the assessments relating to roads and lakes, which were not in contest because Mr. Frank had offered to pay those particular assessments. Frank, 3 LCR at 229.

21. Mr. Frank later appealed the Land Court’s amended judgment to the Appeals Court solely on the issue of the Land Court’s addition of attorney’s fees and other costs incidental to the roads and lake assessments themselves. Frank, 43 Mass. App. Ct. 1102 , at *1 (“The defendant does not appear to challenge the overall validityof the assessments for the roads and for Chamonix Lake”). The Association did not appeal the Land Court decision.

The Appeals Court found that the Association’s authority to levy interest, attorney’s fees, and costs for unpaid assessments originated from the 1990 Association Resolution, which Mr. Frank had no actual or constructive notice of via his chain of title. The Appeals Court found that

Restriction 18 [found in the Warmoltz Deed, supra] does nothing specific to establish the sort of common scheme that would provide even constructive notice – let alone actual notice – to the defendant of an obligation to pay dues and assessments or to pay interest and attorney’s fees pursuant to the [Association Resolution].

Id. at *3 (alterations in original). To hold otherwise, the Appeals Court reasoned, Mr. Frank “would be forced to engage in a continuous title search of indefinite duration in order to glean what ‘new’ restrictions may have been placed on [his title].” Id.

The Appeals Court also determined not to disturb the Land Court’s factual finding that Mr. Frank had no “actual knowledge of the Association’s by-laws or of any obligation to pay dues and assessments or interest and attorney’s fees on unpaid assessments.” Id. at *4 (“Actual notice is largely a question of fact. The judge’s findings on that point will not be disturbed, unless they are clearly erroneous.” (internal citation omitted)). Applying strict construction to the actual notice requirement, the Appeals Court stated that “[t]he fact that [Mr. Frank], sometime after assuming title, may happily have joined the Association, paid dues to it, and used its common facilities and amenities does not alter the analysis.” Id.

Finally, in addition to the lack of constructive or actual notice, because the Appeals Court found that the Land Court had correctly concluded that no implied-in-fact contract existed, Mr. Frank could not be held liable for the interest, attorney’s fees, and costs as set forth in the Association Resolution. Id. at *5. Instead, the Appeals Court concluded that Mr. Frank was liable for interest on the judgment according to G.L. c. 231 § 6 and that “any interest – together with the underlying assessments – is based on [Mr. Frank’s] common law obligation to share in the upkeep and maintenance cost of deeded or implied easement rights he holds in common with fellow Wildwood property owners.” Id. at *5-6 (citing Shapiro v. Burton, 23 Mass. App. Ct. 327 , 334-35 (1987)). [Note 13]

********************

I. Motion to Dismiss

In order to withstand a motion to dismiss, the complaint must include “factual allegations plausibly suggesting (not merely consistent with) an entitlement to relief.” Iannacchino v. Ford Motor Co., 451 Mass. 623 , 636 (2008) (quoting Bell Atl. Corp v. Twombly, 127 S. Ct. 1955, 1959 (2007)). In reviewing a motion to dismiss under Mass. R. Civ. P. 12(b)(6), the court accepts as true the facts in the complaint and any favorable inferences draw from those facts. Sullivan v. Chief Justice for Admin. & Mgmt. of Trial Court, 448 Mass. 15 , 20-21 (2006) (quoting Ginther v. Commissioner of Ins., 427 Mass. 319 , 322 (1998)).

The Association seeks: 1) in Count I, a declaratory judgment that the obligation to pay road assessments, lake assessments, and membership dues functions as an equitable servitude [Note 14] that obligates Defendant to pay such assessments and dues based on (a) Defendant’s chain of title, (b) Defendant’s actual knowledge of the encumbrance, and/or (c) a common scheme of development that binds Defendant Property; 2) in Count II, a judgment that Defendant breached an implied-in-fact contract with the Association by failing to pay road assessments, lake assessments, and membership dues; and 3) in Count III, a judgment that Defendant, as holder of easement rights to use the roads and Lake Chamonix via Defendant Deed, is required to pay her pro-rata share of the maintenance costs of the roads and lake.

Defendant moves to dismiss all three counts of the Complaint pursuant to Mass. R. Civ. P. 12(b)(6), arguing that the equitable servitude that the Association is attempting to enforce falls outside of Defendant’s chain of title, and that Defendant therefore did not have actual or constructive notice of an obligation to pay road assessments, lake assessments, and membership dues. Defendant further argues that an implied-in-fact contract does not exist between herself and the Association. For support, Defendant relies almost exclusively on the Frank Decision.

However, at this stage of the case, without the benefit of fact discovery, Defendant has not shown that the facts at issue in this case coincide with those found to be controlling in the Frank Decision. The Frank Decision thus does not provide a basis to wholly dismiss the Association’s case at this stage of the proceedings. Accordingly, the motion to dismiss shall be DENIED.

A. Count I - Declaratory Judgment of Obligation to Pay Assessments and Dues

Count I of the Complaint asserts several theories upon which the Association claims that it is entitled to a declaration that the obligation to pay road and lake assessments and membership dues binds Defendant Property. First, the Complaint asserts that an obligation to pay arises from references in Defendant’s record title; second, that an equitable servitude arises from Defendant’s actual knowledge of an obligation to pay at the time she purchased Defendant Property; and third, that an obligation to pay arises from a common scheme of development by Chamonix.

Defendant’s Motion to Dismiss relies on the Frank Decision to argue that her chain of title falls outside of the Association’s chain of title and thus provides no actual or constructive notice to Defendant of the obligation to pay dues and assessments described in the Association’s by-laws and other recorded documents.

The Association responds that the Frank Decision is not precedential, and that more recent and binding case law issued by the Appeals Court in Sullivan v. O’Connor, 81 Mass. App. Ct. 200 (2012), supports that the Association has a plausible claim to such declaratory relief in its favor under all three theories discussed therein. The Association’s theories of recovery are analyzed below.

1. Title-based Theory – Constructive Notice

Despite its claim in the Complaint, the Association conceded at the Motion to Dismiss hearing that the obligation to pay assessments and membership dues found in the Association’s By-laws and other recorded documents do not appear in Defendant’s chain of title. Thus, the Association has not pressed its title-based theory before this court on the basis of Defendant’s notice or knowledge from her chain of title.

However, the Association asserts that fact does not preclude its claim to relief because Sullivan recognized that a homeowner’s association may recover on such assessments and dues under a title-based theory, not only (1) where the chain of title references “‘prior documents, plans, restrictions, rights, and reservations [in a way that] would prompt a reasonable purchaser to investigate further the referenced documents,’” but also (2) where “‘the purchaser has actual knowledge of the encumbrance.’” 81 Mass. App. Ct. at 205 (quoting Popponesset Beach Ass’n v. Marchillo, 39 Mass. App. Ct. 586 , 588 (1996)). Thus, the Association highlights that “actual knowledge” is a separate and distinct exception to the general rule that land is free of encumbrances that are not noted in the chain of title.

2. Title-based Theory – Actual Knowledge

In Sullivan, plaintiff lot-owners within a community sought a judgment declaring that they were not required to pay a semi-annual assessment levied by the homeowner’s association to provide services and amenities to the community. The plaintiffs’ deeds did not contain an explicit provision requiring membership in the association or the payment of assessments. However, the plaintiffs’ deeds made several references to the association in connection with restrictive covenants, and the court found that plaintiffs had actual knowledge of the obligation to pay assessments to the association. On this basis, the Appeals Court (affirming, in relevant part, a summary judgment decision issued by the Land Court (Trombly, J.)) found that the plaintiff-lot owners fell into both exceptions under the association’s title-based theory of recovery—that is, the lot owners were on sufficient constructive notice from the references in the chain of title to prompt them to investigate further and discover the restrictions; but further, that the purchasers had “actual knowledge>/em> of the obligation to pay assessments to the association.” Sullivan, 81 Mass. App. Ct. at 206 (emphasis added). In particular, the Appeals Court found:

In light of the obvious nature of the private services and amenities, the substantial duration in which the Sullivans received the benefit of such services, and the explicit reference to other restrictions imposed for the benefit of the community and regulated by the association, the Sullivans obtained sufficient knowledge of the duty to pay assessments to the association, which they paid for six years.

Id. at 206-07.

Contrary to Defendant’s urging, the Frank Decision (which is a non-precedential decision issued pursuant to Rule 1:28) does not require dismissal of the Association’s claims. In fact, the Frank Decision is in line with the above legal analysis presented in Sullivan, although the court reached the opposite result based on the specific facts at issue. In Frank, the Land Court (Kilborn, J.) found on the summary judgment record that defendant-lot owner’s chain of title did not sufficiently reference the obligations to pay the assessments and dues that the Association sought to enforce, and thus that Mr. Frank was not put on notice by his chain of title of the duty to pay assessments and dues. Frank, 3 LCR 229 . But the Land Court further found on the summary judgment record that Mr. Frank also had no actual notice of the duty to pay the assessments and dues because he had no actual knowledge of the Association By-laws imposing such obligations prior to purchase. Id. This finding of fact, not being clearly erroneous, was left undisturbed by the Appeals Court. 43 Mass. App. Ct. 1102 , at *4 (“The judge did not find that the defendant had actual knowledge of the Association’s by-laws or of any obligation to pay dues and assessments or interest and attorney’s fees on unpaid assessments. Actual notice is largely a question of fact. Mister Donut of America, Inc. v. Kemp, 368 Mass. 220 , 222 (1975). The Judge’s findings on that point will not be disturbed, unless they are clearly erroneous.” (emphasis in original)).

Here, like in Sullivan and distinguishable from the Frank Decision, the Association has asserted facts plausibly suggesting that Defendant had actual knowledge of a duty to pay the Association’s assessments and dues. In particular, the Association has plead that (1) the existence of the Association at Wildwood prior to Defendant Deed and the apparent benefits to property owners conveyed by the Association are obvious; (2) the unique roads, signs stating the community’s status as private, and signs on Association-provided recreational facilities indicating the existence of a private Association are evident; (3) Defendant actually paid the assessments and dues to the Association for several years after purchasing Defendant Property, evidencing her actual knowledge of an obligation pay; and, (4) Defendant openly exhibited behavior of an Association member by accepting the benefits provided bythe Association, including by using the roads, both lakes, and other amenities and common facilities furnished by the Association, along with attending events held exclusively for members of the Association. Compare, e.g., Sullivan, 81 Mass. App. Ct. at 206-07 (obvious nature of private services and amenities provided by association, the plaintiffs’ receipt of the benefit of such services and amenities, and fact that plaintiffs paid the association assessments and dues for six years demonstrated plaintiffs’ actual knowledge of the obligation to pay assessments and dues), [Note 15] with Popponesset Beach Ass’n, 39 Mass. App. Ct. at 589-90, 592 (signs indicating a private community and obvious presence of private beach association alone are not enough to put owners on notice of an obligation to pay assessments and dues because “for all they knew it was a voluntary association, and, if they chose not to participate in communal activities, they were free not to join” the beach association, and “t]here was no evidence . . . that the defendants had chosen to avail themselves of the recreational facilities and services of the Association”).

Although the Association’s allegations at this stage of the case lack detail, and the Association’s burden at later stages of these proceedings will require evidence that Defendant actually knew of an obligation to pay assessments and dues and not just that an Association existed at Wildwood, see Frank, 3 LCR at 229; Popponesset Beach Ass’n, 39 Mass. App. Ct. at 589-90, the standard at this stage of the proceedings – to allege facts that plausibly suggest an entitlement to relief – is met by the Association’s Complaint. Moreover, because Defendant’s actual knowledge is a question of fact, the result reached in Frank after full factual development through discovery, does not compel the dismissal of this Count I. [Note 16]

3. Common-Scheme Theory

Because at least one of the Association’s theories of recovery under Count I (the Defendant’s actual knowledge, discussed above) asserts a plausible claim for relief, Defendant’s Motion to Dismiss is rejected. However, I note that the case law does not appear to support the Association’s contention that an obligation to pay assessments and dues arose from a common scheme in this case.

The traditional view of a common scheme provides that

if a developer conveys enough lots on a subdivision plan by deeds including uniform restrictions which prove the existence of a uniform or common scheme for the development but without expressly agreeing to insert the same restrictions on later conveyances of other lots on the plan, an agreement to do so may nevertheless be implied and enforced in equity . . . .

Sullivan, 81 Mass. App. Ct. At 208 (quoting Houghton v. Rizzo, 361 Mass. 635 , 642 (1972)). While it is true that a common scheme obligating lot owners to pay homeowners association assessments and dues may arise whether or not such obligations appear explicitly in a lot owner’s chain of title, the common scheme itself must arise and be apparent from the root deed(s) from the grantor that precede(s) the root deed of the lot owner in question. [Note 17] See, e.g., Guillette v. Daly Dry Wall, Inc., 367 Mass. 355 , 359 (1975) (lot owner with no express restrictions in deed or chain of title from grantor is bound by prior deeds from grantor to other lot owners that contained such restrictions and one that contained a provision restricting lots retained by the seller, which demonstrated a common scheme development); Popponesset Beach Ass’n, 39 Mass. App. Ct. at 590- 91 [Note 18] (lot owner with no express restrictions in deed or chain of title is not bound by a later deed, or restrictions enacted by a later-incorporated homeowners association, because “the common scheme burden arises only when a seller of land binds that vendor’s remaining land with restrictions by means of a writing” (emphasis added)); Sullivan, 81 Mass. App. Ct. at 208 (“‘if a developer conveys enough lots on a subdivision plan by deeds including uniform restrictions which prove the existence of a uniform or common scheme for the development but without expressly agreeing to insert the same restrictions on later conveyances of other lots on the plan, an agreement to do so may nevertheless be implied and enforced in equity . . . .’” (quoting Houghton v. Rizzo, 361 Mass. at 642).

Here, Defendant’s root deed made no mention of restrictions in connection with an Association. In fact, the root deed preceded the creation of the Association by two years. It appears that Defendant is not alone in this posture, as Chamonix conveyed over 360 deeds (referencing only the same restrictions contained in the Warmolts Deed) before the Association acquired any title or interest in the common facilities. Thus, it appears clear in the allegations of the Association’s Complaint that any obligations to pay assessments and dues to the Association arose only after the grantor conveyed the root deeds out to Defendant Property (as well as several hundred other lots). In these factual circumstances, no developer common scheme can be proven.

B. Count II - Breach of an Implied-in-Fact Contract

In Count II of the Complaint, the Association asserts that it entered into an implied-in-fact contract with Defendant that requires Defendant to pay road assessments, lake assessments, and membership dues to the Association. “In the absence of an express agreement, a contract implied in fact may be found to exist from the conduct and relation of the parties.” Sullivan, 81 Mass. App. Ct. at 212 (quoting LiDonni, Inc. v. Hart, 355 Mass. 580 , 583 (1969)). The law implies an obligation to pay for services and benefits that a person knowingly receives, so long as there is no evidence that those services were being provided gratuitously. Popponesset Beach Ass’n, 39 Mass. App. Ct. at 592. Moreover, the court looks to whether a lot owner actually avails themselves of such services and amenities, and/or pays for such through a homeowners associations’s assessments and dues, in determining whether she “manifested acceptance of the obligation to pay for the services provided by the Association.” Sullivan, 81 Mass. App. Ct. at 212-13 (internal quotation marks omitted); Popponesset Beach Ass’n, 39 Mass. App. Ct. at 592 (“There was no evidence, however, that the defendants had chosen to avail themselves of the recreational facilities and services of the Association.”)

The Association asserts that Defendant impliedly assented to and accepted the implied-in-fact contract by purchasing a property in a community with perceptible services, knowing such services were provided by the Association; paying the Association membership dues and assessed maintenance fees for a considerable time after purchasing Defendant Property in 2000; and availing herself of the services and amenities provided or maintained by the Association exclusively for members. For her part, Defendant again relies on the Frank Decision, which found that Mr. Frank “was not bound to the collection procedures through any implied in-fact contract with the Association.” 43 Mass. App. Ct. 1102 , at *5. Relying on the Land Court decision, Defendant highlights that although “[i]t was apparent from the physical indicia in 1986 that Wildwood was a separate, private, community . . . the physical indicia were not such as to establish the implied contract suggested by the Association.” Frank, 3 LCR 229 .

Although the Frank Decision rejected the Association’s implied-in-fact contract theory, the Land Court did so as a factual finding on a summary judgment record. The finding of fact expressly stated that “the physical indicia in 1986 . . . were not such as to establish the implied contract suggested by the Association.” Frank, 3 LCR 229 . Defendant bought Defendant Property in 2000. Defendant makes no argument in her Motion to Dismiss that the physical indicia within Wildwood had not changed in those intervening 14 years. She also does not dispute (at this stage) that she has availed herself of the services and amenities, nor has she made any argument “that those services and benefits were being furnished gratuitously.” See Popponesset Beach Ass’n, 39 Mass. App. Ct. at 592.

Under the case law, the Association has set forth factual allegations plausibly suggesting (not merely consistent with) an entitlement to relief for breach of an implied-in-fact contract with Defendant that required her to pay road assessments, lake assessments, and membership dues. As a result of the forgoing, I find that the Association has asserted a plausible claim for breach of an implied-in-fact contract and, consequently, I DENY Defendant’s Motion to Dismiss Count II of the Complaint.

C. Count III - Contribution for Shared Easement

Although Defendant moves to dismiss all counts of the Association’s Complaint, she makes no argument that the Association does not assert a plausible claim that Defendant is obligated to pay for her pro-rata share of the maintenance costs for the roads and Lake Chamonix as a result of Defendant’s deeded easement rights. In the Frank Decision, the primary case upon which Defendant relies, the Land Court (Kilborn, J.) noted that Mr. Frank had offered to pay his share of the Association’s assessments for road and lake expenses, and the Appeals Court noted that Mr. Frank did not challenge the overall validity of the road and lake assessments. Frank, 3 LCR at 229, 43 Mass. App. Ct. 1102 , 96-P-460 at *1. Thus, the Frank Decision provides no basis (one way or the other) to find that Plaintiff is not plausibly entitled to the relief requested, because neither court reached the issue.

“The duty of maintaining an easement in such condition and repair as may be necessary to its exercise normally rests upon the holder of the easement.” Shapiro v. Burton, 23 Mass. App. Ct. 327 , 333 (1987); see also Frank, 43 Mass. App. Ct. 1102 , at *5-6 (“[A]ny interest – together with the underlying assessments – is based on [Mr. Frank’s] common law obligation to share in the upkeep and maintenance cost of deeded or implied easement rights he holds in common with fellow Wildwood property owners.”); Popponesset Beach Ass’n, 39 Mass. App. Ct. at 592 (“[I]f a person knowingly receives services and other benefits, and there is no evidence that those services and benefits were being furnished gratuitously, the law implies a promise to pay the value of those services and benefits.”).

Defendant Deed contains a right to use the roadways located within Wildwood and to use Lake Chamonix for recreational activities. The Association currently maintains all of the roads located within Wildwood and Lake Chamonix. Although Defendant Deed does not reference a requirement to pay maintenance fees for the upkeep of the roads and Lake Chamonix, based on Defendant’s “common law obligation to share in the upkeep and maintenance cost of deeded or implied easement rights,” Frank, 43 Mass. App. Ct. 1102 , at *5-6, the Association has a plausible claim that Defendant is required to pay the Association for the pro rata cost of maintenance for the roads and Lake Chamonix. The Frank Decision is in accord and does not support Defendant’s Motion to Dismiss. Accordingly, I DENY Defendant’s Motion to Dismiss Count III of the Complaint.

Based on the forgoing, Defendant’s Motion to Dismiss all three Counts of the Complaint is DENIED in whole.

II. Rule 11 Sanctions

Defendant requests that this court impose sanctions against the Association pursuant to Mass. R. Civ. P. 11(a) because the Association previously brought a similar case before this court against another lot owner in Wildwood, as discussed supra, that Defendant contends is “identical” to the case at bar. Mass. R. Civ. P. 11(a) states, in pertinent part:

The signature of an attorney to a pleading constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is a good ground to support it; and that it is not interposed for delay. If a pleading is not signed, or is signed with intent to defeat the purpose of this Rule, it may be stricken and the action may proceed as though the pleading had not been filed. For a wilful violation of this rule an attorney may be subjected to appropriate disciplinary action.

The court may impose sanctions when an attorney fails to show a “subjective good faith belief” that the pleading was supported in fact and law. Van Christo Adver., Inc. v. M/A-COM/LCS, 426 Mass. 410 , 416 (1998); Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627 , 651 (2010).

As noted supra, this case is not factually “identical” with Frank, nor does the Frank Decision serve as a controlling precedent in this court. It is true that Defendant’s and Mr. Frank’s chain of title both reference back to the Warmolts Deed and do not include or reference any of the recorded documents in the Association’s chain of title (which may negate certain aspects of the Association’s title-based theory of recovery in Count I, discussed supra). However, whether or not Defendant had actual knowledge of an encumbrance, or entered into an implied-in-fact contract with the Association, etc., are factual matters that may (and likely will) differ from the facts at issue in the summary judgment record underlying the Frank Decision. Moreover, the Association prevailed on recovering (and Mr. Frank agreed to pay) Mr. Frank’s share of assessments relating to the Wildwood roads and Lake Chamonix, which the Association similarly seeks to recover from Defendant in the case at bar.

At bottom, Defendant provided this court with case law that is persuasive only, and not binding precedent (the Frank Decision), and may be factually distinguishable from the case at bar. Furthermore Defendant has not argued that the Association lacks good faith with regard to the factual allegations made in its Complaint. The Association buttressed its factual allegations with applicable case law. Thus, I find no evidence that the Association lacked a subjective good faith belief that its Complaint was supported in fact and law. As a result, Defendant’s Motion for Sanctions pursuant to Mass. R. Civ. P. 11 is DENIED.

III. Attorney’s Fees

The Association requests attorney’s fees and costs incurred in opposing Defendant’s Motion to Dismiss and Motion for Sanctions pursuant to G. L. c. 231, § 6F. G. L. c. 231, § 6F grants the court the authority to award reasonable counsel fees and other expenses to a party in an action if the court finds that the opposing party’s claims or defenses are “wholly insubstantial, frivolous and not advanced in good faith.”

Defendant cites to both binding and persuasive case law in its Motion to Dismiss, and makes good faith arguments in her attempt to dismiss the claims set forth in the Complaint. Defendant argues that her chain of title does not reference the Association or any obligation to pay the Association dues, and that Defendant did not have actual notice of the requirement to pay the Association road assessments, lake assessments, and membership dues. Although Defendant’s arguments do not carry the day, they cannot be characterized as frivolous or advanced in bad faith. As a result, the Association’s request for attorney’s fees and costs pursuant to G. L. c. 231, § 6F is DENIED.

The parties shall appear at a Status Conference on Thursday, December 17, 2015 at 10:00 A.M. to determine how to proceed with this case. Judgment shall enter after all remaining issues in the case are resolved.