TOWN OF WINCHENDON, by and through its BOARD OF SELECTMEN v. BRANDYWINE FARMS, INC.

Land may last forever, but many interests in land do not. Restrictions, for example, are often limited to a duration of 30 years. See G.L. c. 184, § 23. Leases by definition grant rights of possession for a fixed or monthly term. See Marchesi v. Brabant, 338 Mass. 790 , 791 (1959). And the rule against perpetuities, the bane of law students and currently codified in G.L. c. 184A, places time limits on the vesting of certain reversionary interests. This case concerns the application of G.L. c. 184A, §7, to such an interest.

In 1958, White Brothers, Inc. (White Brothers) conveyed certain flowage rights of Lake Monomonoc (the Lake), which straddles the Massachusetts-New Hampshire border, and usage rights of the Lake's appurtenant facilities to Monomonoc Lake Shores, Inc. (Monomonoc). These rights were subject to a reversionary interest in favor of White Brothers, its successors, and assigns. If Monomonoc, its successors, or assigns failed to maintain the dams or impound the waters of the Lake as agreed in the 1958 conveyance, White Brothers, its successors, or assigns could, at their option, record written declarations to effectuate their reversionary interest.

In 1972 Monomonoc conveyed its rights to the Town of Winchendon (Town). In 2016, Brandywine Farms, Inc. (Brandywine), the successor in interest to White Brothers, recorded a document entitled "Instrument of Reversal of Quitclaim Deed" which purported to effectuate its reversionary interest in the rights conveyed to Monomonoc in 1958. The Town seeks to quiet its title to the flowage and usage rights it obtained by from Monomonoc in 1972.

For the purposes of this motion the Town concedes that it has not maintained the dams and impounded the waters of the Lake but argues that under G.L. c. 184A, §7, White Brothers or its successors had 30 years—until 1988—to make the necessary recording to effectuate its reversionary interest, after which time the Town's interest became a fee simple absolute. Brandywine argues that the failure of the town to maintain the dams and impound the waters of the Lake gave rise to a right of entry or an appurtenant option, either of which survives beyond the 30-year limitation of G.L. c. 184A, § 7.

As set forth below, the motion for judgment on the pleadings is allowed because White Brothers and its successors, under G.L. c. 184A, § 7, had 30 years from the creation of the reversionary interest in 1958 to effectuate such interest by recording the necessary declaration, and no such declaration was recorded prior to the lapse of the 30 period in 1988.

Procedural History

The Town filed its Complaint (Compl.) in this action on June 14, 2017. The Defendant's Answer to Complaint (Ans.) was filed on July 27, 2017. The Plaintiff's Motion for Judgment on the Pleadings was filed on December 19, 2017. The Opposition of Defendant Brandywine Farms, Inc. to Plaintiff Town of Winchendon's Motion for Judgment on the Pleadings Under Mass. R. Civ. P. 12(c) was filed on January 22, 2018. The Plaintiff's Reply to Defendant's Opposition to Plaintiff's Motion for Judgment on the Pleadings was filed on January 29, 2018. The court heard the Town's motion on January 31, 2018. The Supplemental Opposition of Defendant Brandywine to Plaintiff Town's Motion for Judgment on the Pleadings was filed on February 14, 2018. The Plaintiffs Reply to Defendant's Supplemental Opposition to Plaintiff's Motion for Judgment on the Pleadings was filed on February 28, 2018, at which time the court took the matter under advisement. This Memorandum and Order follows.

Standard for Motion for Judgment on the Pleadings

A motion for judgment on the pleadings under Mass. R. Civ. P. 12(c) is analyzed under the standard for motions to dismiss. Jarosz v. Palmer, 436 Mass. 526 , 529-530 (2002). The court accepts as true well-pleaded factual allegations and reasonable inferences drawn therefrom, Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43 , 45 (2004), but does not accept "legal conclusions cast in the form of factual allegations." Iannacchino v. Ford Motor Co., 451 Mass. 623 , 633 (2008), quoting Schaer v. Brandeis Univ., 432 Mass. 474 , 477 (2000); see Jarosz, 436 Mass. at 529-530. Generally, if matters outside the pleadings are presented to and not excluded by the court, the motion will be treated as a motion for summary judgment. Mass. R. Civ. P. 12(b), 12(c). The court may, however, take into account matters of public record and documents integral to, referred to, or explicitly relied on in the complaint, whether or not attached, without converting the motion to a motion for summary judgment. Marram, 442 Mass. at 45 n. 4; Schaer, 432 Mass. at 477; Reliance Ins. Co. v. City of Boston, 71 Mass. App. Ct. 550 , 555 (2008); Shuel v. DeIeso, 16 LCR 329 , 329 n.2 (2008). Therefore, the court will accept as true the factual (but not legal) allegations of the Complaint for the purposes of the Motion for Judgment on the Pleadings, and will consider the exhibits attached to the Complaint and the various recorded instruments referenced in the Complaint. [Note 1]

Undisputed Facts

The following facts are undisputed:

1. White Brothers conveyed certain flowage rights of the Lake and usage rights of the Lake's appurtenant facilities to Monomonoc by a deed dated October 2, 1958, and recorded in the Worcester South District Registry of Deeds (Worcester registry) at Book 3975, Page 189 (the 1958 Deed). Compl. ¶ 4 & Exh. A.

2. The 1958 Deed included an agreement that Monomonoc and its successors impound the water of the Lake to certain heights and maintain certain dams. Compl. ¶ 5 & Exh. A.

3. The 1958 Deed contained a reversionary interest in favor of White Brothers, its successors and assigns, as follows:

(p) In the event that the Grantee, its successors or assigns, fails to keep and maintain the Main Dam and the Stump Pond Dam or fails to impound the waters of Lake Monomonoc as agreed [(the conditions)], then in that event the Grantor, its successors and assigns, shall have the right, at its option, to keep and maintain said dams and impound said waters. If the Grantor, its successors and assigns, exercises said option, by recording a written declaration of the same in the proper registries in Worcester County, Massachusetts and in Cheshire County, New Hampshire, then said dams, contiguous areas thereto, and the rights in connection therewith, including all flowage rights, shall revert to the Grantor, its successors and assigns, without further action on the part of the Grantor or its successors and assigns to effectuate this reversionary interest.

Compl. ¶ 6 & Exh. A.

4. The Town is Monomonoc's successor in interest, having acquired Monomonoc's flowage and usage rights by a deed dated August 24, 1972, and recorded in the Worcester registry at Book 5259, Page 501 (the 1972 Deed). Compl. ¶ 7 & Exh. B.

5. Brandywine is White Brothers' successor in interest by a deed from Mill-Winn, Inc. dated January 29, 2014, and recorded in the Worcester registry at book 53547, Page 67. Compl. ¶ 10 & Exh. E.

6. Brandywine purported to effectuate the reversionary interest created in the 1958 Deed by recording a document entitled "Instrument of Reversal of Quitclaim Deed," dated October 11, 2016 (declaration), in the Worcester registry at Book 56114, Page 333, and in the Registry of Deeds for Cheshire County, New Hampshire (Cheshire registry) at Book 2962, Page 812. Compl. ¶¶ 11-12 & Exh. F.

Discussion

In 1958, White Brothers conveyed to Monomonoc certain flowage rights in the Lake and certain usage rights in the Lake's appurtenant facilities subject to a reversionary interest in favor of White Brothers, its successors, or assigns. On the Town's Motion for Judgment on the Pleadings the court must determine the nature of the fee conveyed by the 1958 Deed and, assuming that the Town failed to comply with the conditions on or before 1988, how the statutory rule against perpetuities contained in G.L. c. 184A, § 7, affects the rights Brandywine, as the successor in interest to White Brothers, may have today.

"[A] property owner has the right to impose limitations or conditions on an estate that is conveyed to another, such that the conveyance is not one of fee simple absolute. A property owner who imposes such limitations or conditions has conveyed a defeasible estate, one that may last forever, but may also terminate, either automatically or by some affirmative step of the conveyor, on the occurrence of a stated event." Queler v. Skowron, 438 Mass. 304 , 310 (2002) (internal citations omitted). "A defeasible estate may be a fee simple determinable or a fee simple subject to a condition subsequent[,]" also known as a fee simple subject to a right of entry for condition broken. Id.; see G.L. c. 184A, § 7. "'A fee simple determinable is created by a conveyance which contains words effective to create a fee simple and in addition a provision for automatic expiration of the estate on the occurrence of a stated event.'" Board of Selectmen of Provincetown v. Attorney Gen., 15 Mass. App. Ct. 639 , 644-645 (1983), quoting Selectmen of Nahant v. United States, 293 F. Supp. 1076, 1078 (D. Mass. 1968). "A fee simple subject to a condition subsequent differs from a fee simple determinable in that the former is made defeasible upon the occurrence of the condition, entry being necessary to terminate the fee." Id., at 645. However, "'[t]he mere recital…of the purpose for which land conveyed was to be used is not in itself sufficient to impose any limitation or restriction on the estate granted.'" Id., quoting Selectmen of Nahant, 293 F. Supp. at 1078.

The conveyance of a fee simple determinable estate is usually created by "words of limitation, such as 'during,' 'as long as,' 'until,' and the like." Carlson v. Czerpak, 3 LCR 58 , 60 (1995), quoting First Universalist Soc'y of North Adams v. Boland, 155 Mass. 171 , 174 (1892). "Such technical words are not, however, essential for such creation." Id., citing Dyer v. Siano, 298 Mass. 537 , 540 (1937); see Rawson v. Inhabitants of School Dist. No. 5 in Uxbridge, 7 Allen 125 , 128-131 (1863).

The 1958 Deed conveyed a defeasible fee which expressly provided for reversion of the fee to the grantor if (1) the grantee failed to comply with the Conditions and (2) the grantor recorded a declaration effectuating the reversionary interest at the Worcester and Cheshire registries. The defeasible fee created by the 1958 Deed has characteristics which could be attributable to either a fee simple determinable or a fee simple subject to a condition subsequent. On one hand, the language used to describe the reversionary interest provides for the automatic reversion of the fee interest upon the recording of the contemplated declaration by the grantor, its successors, or assigns. The language of the 1958 Deed could be understood as conveying a fee simple determinable interest with two contingencies necessary to trigger the automatic expiration of the estate. On the other hand, the conveyance could be interpreted as a fee simple subject to a condition subsequent with only one contingency and a modified form of entry. The recording requirement could be read as a modification of the entry provision that is characteristic of a fee simple subject to a condition subsequent. Entry has traditionally been "defined in real property law as the 'act of going peaceably upon a piece of land which is claimed as one's own, but is held by another person, with the intention and purpose of taking possession of it.'" Carlson, 3 LCR at 63, quoting Black's Law Dictionary 628 (4th ed. 1968). However, notwithstanding "the requirements of the early common law with respect to the necessity of entry to put an end to an estate upon breach of a condition subsequent…the prevailing modern view as reflected both in decisions and statutes is to dispense with the ceremony of entry, and the grantor may terminate the estate by any appropriate manifestation of his intent." Richmond-Wellington Hotel Co. v. Collins, 336 Mass. 360 , 364 (1957) (internal citations omitted).

Both types of defeasible fee are subject to the statutory rule against perpetuities found in G.L. c. 184A, § 7, which provides in part:

A fee simple determinable in land or a fee simple in land subject to a right of entry for condition broken shall become a fee simple absolute if the specified contingency does not occur within thirty years from the date when such fee simple determinable or such fee simple subject to a right of entry becomes possessory. If such contingency occurs within said thirty years the succeeding interest, which may be an interest in a person other than the person creating the interest or his heirs, shall become possessory or the right of entry exercisable notwithstanding the rule against perpetuities.

G.L. c. 184A, § 7, as amended through St. 1954, c. 641, § 2 (Chapter 184A). Prior to the enactment of Chapter 184A in 1954, "[t]he unexercised possibility or right to re-entry for condition broken could pass from the original grantors by descent or devise. But it could not pass from the original grantors to a third person by conveyance intervivos. An attempt to pass it, either before or after breach, would merely discharge the condition, and make unconditional the title of the original grantee." Dyer, 298 Mass. at 539 (internal citations omitted). Chapter 184A "had the effect of validating executory interests of the type described, which would otherwise be held void under the rule against perpetuities, but limited them to thirty years duration; while as to rights of entry and possibilities of reverter, traditionally exempt from the application of the rule, the new statute had the effect of limiting their possible duration, in effect leaving them indistinguishable in operation from executory interests created by analogous language." Oak's Oil Service, Inc. v. Massachusetts Bay Transp. Auth., 15 Mass. App. Ct. 593 , 597-598 (1983) (internal citations omitted). Whether the interest retained by White Brothers was a possibility of reverter or a right of entry, such right was transferrable to its successors and assigns under Chapter 184A.

Under Chapter 184A, the reversionary rights retained by White Brothers in the 1958 Deed were limited to a duration of 30 years. Construing the 1958 Deed as conveying a fee simple determinable would mean that the possibility of reverter expired, 30 years after 1958, on October 2, 1988, because even if the Town had at that time failed to comply with the Conditions, no declaration had been recorded by White Brothers or their successors by that date. Alternatively, construing the 1958 Deed as conveying a fee simple subject to a condition subsequent would mean that upon failure of the Town to comply with the Conditions, White Brothers or their successors possessed a right of entry that was exercisable until October 2, 1988. Accepting that Brandywine intended the recording of the declaration in the Worcester and Cheshire registries to be a substitute for physical entry as a means of effectuating the reversionary interest, that right of entry expired in 1988, as no such declaration had been recorded at that time. Under either theory of fee ownership, Brandywine's reversionary interest terminated in 1988 and the Town's interest in the rights conveyed in the 1958 Deed became a fee simple absolute.

Brandywine argues that the language of Chapter 184A only requires the contingency giving rise to the right of entry to occur within 30 years, and that a right of entry survives beyond that window if the contingency occurs before the running of 30 years. The suggestion that the right of entry survives beyond the statutory period defeats the purpose of Chapter 184A. The Legislature enacted Chapter 184A in order to limit the duration of possibilities of reverter or rights of entry created after January 1, 1955, with certain exceptions, to a maximum of thirty years. Town of Brookline v. Carey, 355 Mass. 424 , 426-427 (1969). The intent of Chapter 184A was "to clear titles, frequently in churches, where a fee is encumbered by a right of entry for condition broken or possibility of reverter." Leach, Perpetuities Legislation, Massachusetts Style, 67 Harv. L. Rev. 1349, 1362 (1954). Further, "[t]he period of 30 years is chosen because that is the duration permitted by the Massachusetts statute as to restrictions on land where the period is not otherwise specified." Id. at 1363. Chapter 184A, which seeks to clear titles, cannot be interpreted to leave open a window which would allow a right of entry that has become exercisable within 30 years to remain exercisable forever. That is precisely the kind of cloud on title that Chapter 184A was intended to forestall.

Even if, as Brandywine argues, a right of entry could exist beyond the 30-year period prescribed by Chapter 184A, that right of entry must be exercised within 20 years from the date it accrues pursuant to G.L. c. 260, § 21 (Chapter 260). Chapter 260 provides:

An action for the recovery of land shall be commenced, or an entry made thereon, only within twenty years after the right of action or of entry first accrued, or within twenty years after the demandant or the person making the entry, or those under whom they claim, have been seized or possessed of the premises; provided, however, that this section shall not bar an action by or on behalf of a nonprofit land conservation corporation or trust for the recovery of land or interests in land held for conservation, parks, recreation, water protection or wildlife protection purposes.

Id. Under Brandywine's theory, its right of entry had accrued by October 2, 1988, at the latest. This means that White Brothers or its successors had until October 2, 2008, to make such entry before it became barred by Chapter 260. Thus, even accepting that (1) the Town failed to comply with the Condition of the 1958 Deed prior to October 2, 1988; (2) the 1958 Deed conveyed a fee simple subject to a condition subsequent rather than a fee simple determinable; (3) the right of entry may be exercised by recording the declaration described in the 1958 Deed alone; and (4) a right of entry subject to Chapter 184A is exercisable beyond 30 years as long as the contingency it is dependent on occurs within that time; Brandywine cannot overcome the fact that it did not record the declaration to effectuate its reversionary interest until October 11, 2016, more than eight years after its right of entry would have expired pursuant to Chapter 260.

Moreover, as the Town argues, its possession and maintenance of the subject dams was uninterrupted and uncontested from 1972 to 2016—approximately 44 years. Even assuming that on October 2, 1988, the Town's interest reverted to Brandywine's predecessor, the successive 28 years of uninterrupted possession and maintenance before the recording of the declaration exceeds the time requirements of the prescriptive period for adverse possession, as set forth in G.L. c. 260, § 21. Ryan v. Stavros, 348 Mass. 251 , 262 (1964) ("Title by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years."); Sea Pines Condominium III Ass'n v. Steffens, 61 Mass. App. Ct. 838 , 847-848 (2004). Even under Brandywine's interpretation of the rights conveyed by the 1958 Deed, the Town is able to clear its title to those rights by its having shown a 20 continuous years of open, notorious, adverse, and exclusive use running from 1988 to 2008.

Brandywine's final argument is that the reversionary interest is actually some form of option contract that is not subject to the rule against perpetuities. Whether or not an option is subject to the rule against perpetuities is of no relevance because the reversionary interest, while exercisable at the option of the grantor in the literal sense, is not an option to purchase real estate. Missing from the 1958 Deed is any contemplation of a contract for the reconveyance of the rights discussed therein. An option of the type suggested by Brandywine gives the holder the right to engage in a subsequent contract. See Roberts-Neustadter Furs, Inc. v. Simon, 17 Mass. App. Ct. 262 , 264-265 (1983). The 1958 Deed does not provide for any future contractual relationship between the grantor and the grantee. Further, as written in the 1958 Deed, the alleged "option" would provide for a contractual relationship without consideration. See Vasconcellos v. Arbella Mut. Ins. Co., 67 Mass. App. Ct. 277 , 280 (2006). The reversionary interest, whether it is best characterized as a right of entry or a possibility of reverter, is not an option.

The Town has established that it holds title to the interests conveyed in the 1958 Deed in fee simple absolute. In each of the interpretations of the 1958 Deed and the applicable statutes discussed above, the reversionary interest claimed by Brandywine has expired, likely in 1988, but by 2008 at the latest. Brandywine, having taken no action to effectuate the reversionary interest prior to 2008 was barred from doing so thereafter by the statutory rule against perpetuities in Chapter 184A and the statute of limitations in Chapter 260. As such, the declaration recorded in 2016 by Brandywine had no effect on the Town's title.

Conclusion

For the foregoing reasons, the Plaintiff's Motion for Judgment on the Pleadings is ALLOWED. Judgment shall enter declaring that the document entitled "Instrument of Reversal of Quitclaim Deed," dated October 11, 2016, and recorded in the Worcester registry at Book 56114, Page 333 is invalid, and that the Town holds title to the rights conveyed in the 1958 Deed in fee simple absolute.

SO ORDERED