ROBERTA J. TONSBERG v. MATTHEW D. LANZA and JEANNETTE S. LANZA, as Trustees of the Lanza Trust.

Summertime, but the living isn't so easy on Country Club Way in Kingston, Massachusetts.

You wouldn't know it from appearances. Defendants Matthew D. and Jeannette S. Lanza, the trustees of the Lanza Trust, own a luxurious home on 162 Country Club Way (the "Lanza Property"). The property abuts the Indian Pond Country Club. The backyard of the Lanza Property empties onto the fairway of the second hole of the Club's eighteen-hole golf course.

Mr. Lanza custom-built his home at a cost of $1.2 million. He began living there in 2002. In 2015, he and his wife added to the rear of their house a 2,500 square-foot, three-season deck, complete with a living room, dining room, bar, kitchen, pizza oven, fireplace, big-screen television and a sunken Jacuzzi. It's a place that the Lanzas, their family and friends enjoy from April 1 to New Year's Eve.

In the spring of 2017, the Lanzas decided that their yard wouldn't be complete unless it had an in-ground pool. The trouble was that in 2001, the Country Club and its developer, Frederick M. Tonsberg, had imposed on 61 of the parcels that encircled the golf course – the "golf course lots," which include the Lanza Property – six restrictions. One restriction states plainly: "No in-ground pools shall be constructed on any lot adjacent to the golf course."

Mr. Lanza knew about the No Pools Restriction when he bought his property, but he begged developer Tonsberg in 2017 to change it. Tonsberg refused. The Lanzas began building the pool anyway. That distressed a neighbor, plaintiff Roberta J. Tonsberg, who happens to be developer Tonsberg's daughter-in-law. Ms. Tonsberg owns a sizeable house (not as expansive or expensive as the Lanza quarters, but a nice home nonetheless) at 144 Country Club Way (the "Tonsberg Property"). Like the Lanza Property, the Tonsberg Property is a golf course lot. Like the Lanza Property, the Tonsberg Property is subject to the No Pools Restriction. Ms. Tonsberg liked the Restriction, and she did not like the Lanza pool.

In October 2017, Ms. Tonsberg sued the Lanzas to enforce the No Pools Restriction and stop the pool's construction. At the start of the case, she sought a temporary restraining order and a preliminary injunction halting further building. This Court (Piper, J.) denied both requests, there being no irreparable harm to Tonsberg from continued work. The Court nevertheless warned the Lanzas that further expenditure came at the risk that the Court could "order the pool to be removed at whatever cost." The Lanzas presumably accepted that risk and completed their project, at a cost exceeding $500,000.

The parties appeared for trial on June 4-6 and 12, 2019. The Court (Vhay, J.) took a view on June 3, 2019 of the area comprising Phase IV of Indian Pond Estates ("Phase IV"), the development that surrounds the Indian Pond Country Club and its nearby residences. On the first day of trial, the Lanzas disputed the scope of Ms. Tonsberg's claims, asserting that she hadn't properly pleaded all of them. Tonsberg moved to amend her complaint. The Court ruled that she could challenge at trial both the Lanzas' pool (the "Pool") and a fence that encloses their backyard (the "Fence"), as the Lanzas had adequate notice of Tonsberg's Pool and Fence issues. The Court refused to allow her to challenge at trial, however, the Lanzas' pool house. Tonsberg hadn't clearly complained about the pool house until after discovery in this case was over.

Having heard the testimony of the parties' witnesses, having reviewed the evidence admitted at trial, having considered the parties' stipulations of fact, having heard the arguments of counsel, and having taken a view of Phase IV, the Court finds the facts noted above as well as these:

1. The plan for Phase IV, entitled "Plan of Land Indian Pond Estates IV, a Subdivision Located in Kingston, Massachusetts," revised July 14, 1998 (the "Phase IV Plan") shows 133 residential lots that encircle a single large lot, Lot 74-4 (sometimes called Lot 4-105). Lot 74-4 is comprised of approximately 141 acres and now contains a golf course and country club owned by Indian Pond Country Club, Inc. (the "Club"). The Phase IV Plan depicts the residential lots as being approximately one acre or greater; the smallest lot shown on the Plan is Lot 4-10, which is 0.92 acres. The Plan depicts the Lanza Property as Lot 4-122, and the Tonsberg Property as Lot 4-119.

2. Frederick M. Tonsberg is the original developer of Indian Pond Estates. (Ms. Tonsberg's husband is Frederick W. Tonsberg, Frederick M. Tonsberg's son. For ease of reference, this decision will refer to them hereafter as "Frederick W." and "Frederick M.") Frederick M. purchased the first property for what became Indian Pond Estates in 1984. He then built Indian Pond Estates Phases I-III over the next decade. He received approvals for Phase IV in 1997-1998.

3. The Phase IV Plan depicts at the northern end of Phase IV a public way, Brook Street. Proceeding south from Brook Street is Phase IV's principal access road, Country Club Way, which has been built. The Phase IV Plan showed Country Club Way initially passing ten residential lots on its west, and five residential lots on its east (plus a spur road and cul-de-sac, called Eagle Drive), before reaching a T-shaped intersection (the "Intersection"). The lot for the golf course, Lot 74-4, abuts the south side of the Intersection; in 1997-1998, Frederick M. envisioned putting the course's clubhouse there, and that's where it is today.

4. The Phase IV Plan depicts Country Club Way branching both east and west from the Intersection and looping around the golf course. The Plan shows 63 residential lots on the "interior" (golf-course-facing side) of Country Club Way, each abutting the golf course. The Plan also shows 53 residential lots on the "exterior" of Country Club Way, opposite the "interior" lots.

5. In 1997-1998, Frederick M. envisioned Phase IV as a "golf course community." He aimed to place the golf course, its clubhouse, its maintenance facilities and its parking on Lot 74-4. He envisioned the clubhouse hosting a variety of functions, such as weddings, business meetings, golf tournaments, fundraisers, parties, wakes, and showers. The Club's clubhouse hosts all of those activities today. It holds 200-225 events each year, and not just for club members. For approximately seven years, the clubhouse also had a restaurant that was open to the general public. The restaurant closed five years ago.

6. Frederick M. also contemplated in 1997-1998 (and received approvals for) using some of the lots that abut the Intersection for a sales, administration and child-care building (on one side of the Intersection), and a community pool, pool house, fitness center, tennis courts and related parking (on the other side of the Intersection). He also contemplated building a business center near the Intersection.

7. Frederick M. began developing Phase IV's residential lots in 1999, before he built the golf course. At the outset of residential construction, Frederick M. and High Pines Corporation, a corporation owned by Frederick M. that owned, in turn, Phase IV's undeveloped parcels, recorded a "Declaration of Protective Covenants and Restrictions, Phase IV," dated January 4, 1999 (the "Covenants and Restrictions"). Frederick M. and High Pines Corporation recorded and filed the Covenants and Restrictions with the Plymouth County Registry of Deeds and the Plymouth County Registry District of the Land Court.

8. The Covenants and Restrictions call Frederick M. and High Pines Corporation the "Developer." The Covenants and Restrictions recite that the Developer intends to develop certain of the Phase IV parcels "for residential use. . . ." The Covenants and Restrictions also state that "the Developer in addition to the creation of a residential community intends to create, operate and maintain a golf course with country club facilities on a portion of the subject premises for the sole and exclusive benefit of the Developer, its assigns, and its members and guests." The Covenants and Restrictions then state that, "to the end that the intended residential subdivision in Indian Pond Estates may become and be maintained as a more enjoyable place to live and for the benefit and general welfare of all, the following covenants, restrictions, conditions and agreements are hereby imposed on each of the following lots" shown on the Phase IV Plan: "Lots 4-44 through 4-71, Lots 4-117 through 4-134, and Lots 4-1 and 4-2. . . ."

(Emphasis added.)

9. Of the lots listed in the Covenants and Restrictions, Lot 4-71 and Lots 4-117 through 4-134 (which include what are now the Tonsberg and Lanza Properties) abutted the proposed golf course. Lots 4-44 through 4-70 and Lots 4-1 and 4-2 lay along the exterior of Country Club Way. The Covenants and Restrictions didn't cover all of the Phase IV residential lots; they encumbered only those lots that the Town of Kingston had released for construction by January 1999.

10. Frederick M. hadn't imposed covenants and restrictions on the lots in Phases I-III of Indian Pond Estates. What made Phase IV unique was its golf course: Frederick M. thought the Covenants and Restrictions were necessary to protect the "integrity" of the golf course. Frederick M. also saw the Covenants and Restrictions as benefiting those purchasing residential lots in Phase IV.

11. The Covenants and Restrictions contain twenty paragraphs. Paragraphs 1-16 impose various restrictions on the style, size, design, and use of residences.

12. Paragraph 1 of the Covenants and Restrictions, "Lot Size and Site Dimensions," provides: "No building or structure shall be erected . . . on any lot that contains an area of less than 40,000 squre feet [or] on any lot, except for corner lots, . . . nearer than thirty (30) feet to any side lot line. . . ."

13. Paragraph 3, "Living Area," provides: "No building or structure shall be erected . . . on any lot unless said dwelling shall not have [sic] less than two thousand five hundred (2,500) square feet of living area, with an attached two car (2) garage, exclusive of basements, garages, decks, patios and porches."

14. Paragraph 4, "Approval of Plans and Specifications," prohibits development of any building "until plans and specifications . . . have been submitted to the Developer" for its approval, "[s]uch approval . . . not [to] be unreasonably withheld."

15. Paragraph 9, "Activities," provides: "No obnoxious or offensive activity shall be carried on upon any lot, nor shall anything be done thereon which may be or become an annoyance or nuisance to the residential neighborhood. No business, trade or profession shall be conducted from any building on any lot without express permission from Developer."

16. Paragraph 16, "Golf Course Lots," originally provided:

Any lot adjacent to or in close proximity to golf course areas shall be subject to a perpetual right and easement for the sole and exclusive use of providing reasonable foot access to golfers to retrieve errant golf balls on unimproved areas of such residential lots. Boundary or peripheral fences or walls on such lots shall be prohibited. For purposes of this section only, the golf course area shall mean Lots 4-105 [sic] as shown on [the Phase IV] Plan.

17. Paragraph 17, "Duration," provides (emphasis added):

The covenants and restrictions of this declaration shall run with and bind with the land, and shall insure [sic] to the benefit of and be enforceable by the owner of any land subject to this declaration and their heirs, successors, and assigns for a term of thirty (30) years from the date of this declaration is recorded, after which time said covenants and restrictions may be extended for further periods not to exceed twenty (20) years at a time as set forth and in accordance with M.G.L.A. Chapter 184, Section 27.

18. Paragraph 18, "Waiver," provides: "A waiver by owner of the covenants and restrictions contained in this declaration shall not constitute a waiver of the right to enforce any such covenants or restrictions by another owner thereafter."

19. Paragraph 20, "Reservation of Rights by Developer," provides in part: "Developer . . . retains and reserves the right to amend this Declaration and record such amendment, provided that no such amendment shall substantially derogate from the original intent and purpose of this Declaration."

20. By January 2001, Frederick M. and High Pines Corporation had built the Club's golf course. They now had a better understanding of how the course should relate to its abutting lots, and vice versa. The Town of Kingston also had released for development the remaining residential lots in Phase IV. Thus, in January 2001, Frederick M., High Pines Corporation, and the Club recorded an "Amendment to Declaration of Protective Covenants and Restrictions, Phase IV," dated January 19, 2001 (the "Amendment"). They recorded the Amendment with the Plymouth County Registry of Deeds, but they did not file it with the Plymouth County Registry District of the Land Court.

21. The Amendment states that the Developer (which the Amendment defines as including the Club) "do hereby amend" the Covenants and Restrictions "by the following":

Paragraph 16. GOLF COURSE LOTS

Those lots described herein as "golf course lots" are those in close proximity to parcel 74-4 as shown on the [Phase IV Plan]. Those lots are shown as Lots 4-71 through 4-103, inclusive and Lots 4-107 through 4- 134, inclusive. . . .

The "golf course lots" are also subject to the following:

a. The developer has the right to reserve or grant easements for the benefit of the owner of the golf course for the reasonable and efficient operation and maintenance of the golf course and its facilities in a customary and usual manner.

b. The developer reserves the right to maintain, replace, remove or add to the vegetation on the golf course lots in those areas in close proximity to the golf course.

c. The perpetual right and easement for the sole and exclusive use of providing reasonable foot access for golfers to retrieve errant golf balls on unimproved areas of such lots.

d. No above ground pools are allowed. No in-ground pools shall be constructed on any lot adjacent to the golf course.

e. No outbuildings, swing sets, play sets or clotheslines shall be allowed on the golf course lots without the express written consent of the developer.

f. Owners of any golf course lots will use their best efforts to minimize any adverse impact to the golf course, including a) working cooperatively with the developer to schedule any work to be done on the golf course lots. [Sic] In addition the owners will not perform any non-emergency work on such lots during (a) weekend playing hours and (b) at other times when such work may unreasonably interfere with the use of the golf course.

All other terms and provisions remain unchanged and in full force and effect.

22. The Amendment's term "golf course lot" includes the Lanza and Tonsberg Properties.

23. The Developer intended for the Amendment's ¶ 16 to replace ¶ 16 of the Covenants and Restrictions in its entirety. Frederick M. hoped that the Amendment's provisions would allow those using the golf course to golf without interruptions. The Amendment still serves that purpose. Frederick M. saw, and continues to see, enforcement of the Covenants and Restrictions, as amended, as helpful to the marketing of unbuilt Phase IV lots and the sale of completed Phase IV homes.

24. One of the Lanzas' trial witnesses, Nancy Virta, confirmed Frederick M.'s views on the usefulness of the Covenants and Restrictions, as amended. Ms. Virta is an independent Kingston-area real-estate broker who has marketed Phase IV lots and homes since 1998. For many years, she sold unbuilt lots on behalf of High Pines Corporation. She has been involved with 20-25 listings of constructed Phase IV properties since 2007. She's also a golfer who has played at the Club. From 1998 to the present, both while she was working for High Pines and while working on her own, she has marketed Phase IV properties as an opportunity to enjoy "the country club lifestyle," or "a great lifestyle on the golf course."

25. The Club is still in business. It's a for-profit corporation, and Frederick M. still owns it. The Club has over 200 members, including Mr. Lanza. The Lanzas held their wedding at the Club. Mr. Lanza has held several non-romantic functions there as well, including his annual office holiday parties. One of his trial witnesses, Andrew MacInnis, also is a member of the Club. MacInnis paid a $35,000 initiation fee to join the Club, and at the time of trial he was fighting with the Club to retain his membership there. People see the Club as a desirable place to golf.

26. In addition to operating the golf course and clubhouse, the Club has built and now operates near the Intersection a community swimming pool and pool house. The Club hasn't built the fitness center, the child-care facility, or the tennis courts that Frederick M. originally envisioned.

27. Trustees Matthew and Jeannette Lanza received title to the Lanza Property via a recorded and filed quitclaim deed dated May 23, 2013 (the "2013 Deed"). Before May 2013, the Lanzas held title to the Lanza Property individually, pursuant to a recorded and filed quitclaim deed dated December 30, 2004 (the "2004 Deed"). Before December 2004, Mr. Lanza held title to the Lanza Property individually; he obtained title pursuant to a quitclaim deed dated March 25, 2002 (the "2002 Deed").

28. The 2002 and 2004 Deeds state that the Lanza Property is "[s]ubject to" the Covenants and Restrictions and the Amendment. The 2002 and 2004 Deeds also recite verbatim the No Pools Restriction. The 2013 Deed doesn't mention the Covenants and Restrictions or the Amendment, but it provides that the Lanza Property is "SUBJECT TO ALL RIGHTS, RIGHTS-OF-WAY, EASEMENTS, RESTRICTIONS, RESERVATIONS[,] SPECIAL USE PERMITS, COVENANTS AND AGREEMENTS INSOFAR AS THE SAME ARE NOW IN FORCE AND APPLICABLE." (Capitalization in original.) The 2013 Deed also directs the reader to the 2004 Deed as the source of the Lanzas' title. Mr. Lanza admitted he was on notice of the No Pools Restriction by the time of the 2002 closing on his property. Ms. Lanza was on notice of the No Pools Restriction by at least December 2004.

29. Between 1999 and 2007, and from 2011 to the time of trial, scores of large homes, with somewhat diverse architectural styles, were built within Phase IV (the "Golf Course Homes"). All were built on lots that complied with ¶ 1 of the Covenants and Restrictions. All went through the Developer's design-approval process. All had at least 2,500 square feet of living area and an attached two-car (if not larger) garage.

30. In 2006, Frederick M. formed High Pines, LLC (the "LLC"). In 2007, the LLC obtained pursuant to G.L. c. 40B a comprehensive permit (the "Comprehensive Permit") authorizing the construction of 86 units, grouped into five homeowner's associations, on certain lots within Phase IV.

31. The LLC and Stonecroft Properties, an entity controlled by Frederick W., began building some of the Comprehensive Permit developments starting in 2010. In 2012, Frederick W. replaced Frederick M. as Manager of the LLC. The amendment to the LLC's certificate of organization that announced the change in the LLC's Manager listed the LLC's principal office as the Tonsberg Property, which Ms. Tonsberg had purchased in 2010. The Tonsberg Property also is listed, or has been listed, as the principal office of a number of other commercial enterprises, corporations and/or limited liability companies owned or controlled by Frederick W.

32. Recall that ¶ 9 of the Covenants and Restrictions provides, in part, that "[n]o business, trade or profession shall be conducted from any building on any lot without express permission from Developer." No one introduced at trial any evidence that the Tonsbergs obtained permission for anyone to conduct business from the Tonsberg Property. ("Anyone" includes Ms. Tonsberg herself. She's a licensed real-estate broker, and she regularly assists the the LLC and Stonecroft's businesses, including sales of Phase IV homes.) That said, no one introduced at trial any evidence that business activities on the Tonsberg Property are noticeable, or have had any effect upon any of the other properties in Phase IV, including the golf course. Business activities on the Tonsberg Property also have not affected the "country club aesthetic" of the Phase IV lots.

33. Since 2010, the LLC and/or Stonecroft has completed three of the five developments authorized under the Comprehensive Permit. The completed developments are "Fairway Drive," built on Phase IV Lots 4-37 through 4-43 (now identified as Lots 437-1 through 437-23); "Links Way," built on Lot 4-15 (now identified as Lots 100-1 through 100-8); and "Putter's Place," built on Lots 4-110 through 4-112 (now identified as Lots 112-1 through 112-11). The LLC and/or Stonecroft is constructing a fourth development, called "Eagle Drive," on Lots 4-28 through 4-31.

34. The Covenants and Restrictions never applied to the Fairway Drive, Links Way or Eagle Drive lots. The Fairway Drive, Links Way and Eagle Drive lots don't abut the golf course, and the Amendment doesn't define them as golf course lots. On account of Links Way's location and the intervening vegetation and topography, golfers arriving at the Club from Brooks Street can't see any of the houses within Links Way. Arriving golfers likely would see the Fairway Drive and Eagle Drive homes.

35. The Fairway Drive homes are single-family residences aligned on the west side of Fairway Drive, a street that runs west of and parallel to Country Club Way. An open field separates Country Club Way from Fairway Drive, and hence the Fairway Drive homes are set back from Country Club Way much like the Golf Course Homes. Eagle Drive begins at Country Club Way, then forms a loop. The Eagle Drive homes are clustered in and around the loop. Like the Fairway Drive homes, the Eagle Drive homes are single-family residences, set back from Country Club Way much like the Golf Course Homes.

36. The Fairway Drive, Links Way and Eagle Drive homes are architecturally consistent with respect to each other. While they are cottages in comparision to the Golf Course Homes (the Fairway Drive, Links Way and Eagle Drive homes are smaller and denser), the Fairway Drive, Links Way and Eagle Drive homes do not detract from the "country club aesthetic" of Phase IV, including the Club and the Golf Course Homes. The Fairway Drive, Links Way and Eagle Drive homes are well built and well maintained.

37. The eleven Putter's Place lots are on three of the Amendment's golf course lots, but they aren't on lots described in the Covenants and Restrictions. The Putter's Place lots are southeast of a street called Putter's Place, which itself is southeast (but roughly parallel to) Country Club Way. The Putter's Place homes are set back from Country Club Way much like the Golf Course Homes.

38. The Putter's Place houses are smaller and denser than the Golf Course Homes, but they are consistent in design and construction with the Fairway Drive, Links Way and Eagle Drive homes. The Putter's Place lots range between 6,458 sq. ft. and 11,619 sq. ft. in size. Golfers arriving at the Club from Brooks Street would be able to see the Putter's Place homes from Country Club Way, but owing to the topography of the golf course and its vegetation, golfers can't see the Putter's Place homes from the golf course itself. The Putter's Place homes are well built and well maintained. They are architecturally consistent with respect to each other, and while they are cottages compared to the Golf Course Homes, the Putter's Place homes do not detract from the "country club aesthetic" of Phase IV, including the Club and the Golf Course Homes.

39. The fifth and last development authorized under the Comprehensive Permit, if built, will appear on Phase IV Lots 4-87 through 4-92. The Covenants and Restrictions don't mention those lots, but they are "golf course lots" under the Amendment. Some of Lots 4-87 through 4-92 have been cleared, but as of the time of trial, each was unbuilt.

40. In 2016, Stonecroft Properties built Stonecroft Place, a 2.5-story commercial structure and parking lot on Lot 4-24. Stonecroft Place is next to the Club's community swimming pool (and its related parking lot), both of which are at the Intersection. Stonecroft Place is within the general area that Frederick M. contemplated for various Phase IV "amenity" buildings. In 2017, Ms. Tonsberg opened a hair salon in Stonecroft Place. While golfers arriving at the Club can see Stonecroft Place, it does not abut the golf course, nor does it detract from the "country club aesthetic" of Phase IV. Lot 4-24 is not subject to the Covenants and Restrictions, nor is it a "golf course lot" under the Amendment.

41. Construction and occupation of the developments discussed in ¶¶ 33-40 above had not, at the time of trial, detracted from the "country club aesthetic" of Phase IV, including the Club and the Golf Course Homes. This is in large part a result of the sheer size of Phase IV and the location of the developments described in ¶¶ 33-40 relative to the golf course and the Golf Course Homes.

42. The entrance to Phase IV from Brook Street initially is lined with trees. As one drives up Country Club Way from Brook Street, one climbs the crest of a hill, and then is greeted by a largely open landscape surrounded by trees. The tasteful Fairway Drive development is visible to the right, and the Eagle Drive development (still under construction at the time of trial) is on the left. Ahead is the clubhouse, the community pool and (on the left, past the pool) Stonecroft Place. As one approaches the Intersection, one can glimpse the Putter's Place development. If one takes a right at the Intersection, one passes Putter's Place and its relatively modest but well-kept buildings on the left. Shortly thereafter, one reaches the Golf Course Homes. The houses and lots become noticeably larger and more opulent, but not in a way that is jarring given what one has seen to that point. Once one enters the neighborhood of the Golf Course Homes, one drives for what seems like miles on Country Club Way as it wends past an unbroken gallery (save for unbuilt lots) of expensive homes. Things don't change until one reaches the other side of the course from the Tonsberg and Lanza Properties, at Links Way. The transition to Links Way isn't jarring or uncomplimentary to the Golf Course Homes; as is the case with Putter's Place, in a car one passes the Links Way development quickly.

43. Construction and occupation of the developments discussed in ¶¶ 33-40 above has not reduced the value of the Golf Course Homes. Any reduction in value that those homes may have experienced from the time of construction through the time of trial was a result of market forces affecting the Kingston area generally. As Ms. Virta and Frederick M. testified, starting in 2007, prices of real estate throughout southeastern Massachusetts crashed. That crash predated by several years construction of the developments discussed in ¶¶ 33-40 above. Sometime after 2011, Virta resumed advertising homes in Phase IV as having "a great lifestyle on the golf course," something that the construction described in ¶¶ 33-40 above hadn't changed. At the time of trial, prices of some of the Golf Course Homes had returned to the range of $1.3-1.4 million.

44. In April 2017, Mr. Lanza asked Frederick M. to change the No Pools Restriction so as to allow the Lanzas to build an in-ground pool on the rear (golf course-facing side) of the Lanza Property. Frederick M. refused. At the time Lanza made his request, only one other golf-course lot had a pool, but that pool predated the No Pools Restriction. Prior to April 2017, Frederick M. had received two other requests for waivers of the No Pools Restriction; he had declined both.

45. On May 8, 2017, the Lanzas obtained a building permit for the construction of an 18' x 40' gunite rectangular in-ground pool. The Lanzas didn't tell Frederick M. that they had decided to proceed with pool construction. Frederick M. didn't learn that until he saw pool- company trucks at the Lanza Property. Frederick M. also heard around that time that Ms. Tonsberg had filed this lawsuit. Frederick M. considered taking enforcement action against the Lanzas, but decided to let this lawsuit take its course first.

46. One cannot see the Pool from the Tonsberg Property, but once the Lanzas started using it (in the summer of 2018), Ms. Tonsberg occasionally heard Pool activities from her backyard as well as her second-floor bedroom. She's also heard the Lanza children playing when they weren't in the Pool, and has heard the Lanzas entertaining in their backyard.

47. No one submitted evidence that the backyard of the Lanza Property was unimproved at the time they began building their three-season entertainment area (or later, when they installed the Pool and the Fence).

48. While there are no unauthorized pools on golf course lots except for the Lanza Pool, there are a few "outbuildings, swing sets [and] play sets" on golf course lots that violate the Amendment. Mr. Lanza identified the violators of the outbuilding/swing set/play set restrictions as owning lots in the vicinity of Lots 4-72 through 4-76, 4-80 through 4-82, and Lot 97. These lots are considerably distant from the Tonsberg and Lanza Properties. Frederick M. has sent those violators copies of the Covenants and Restrictions and the Amendment, and has challenged the owner of one swing set to remove it. Frederick M. hasn't sued anyone for violating the Amendment. Some of the golf course lots also have fences in their back (that is, golf course-facing) yards, but no one provided evidence at trial that such fences enclosed "unimproved areas" on such lots (see Amendment, ¶ 16(c)).

49. There is a pool at 131 Country Club Way. That pool is closer to the Tonsberg Property than the Lanza Pool. 131 Country Club Way is not, however, a golf course lot, and its pool doesn't violate the Covenants and Restrictions or the Amendment.

50. During discovery, the Lanzas asked Ms. Tonsberg to produce all documents relating to whether the Lanza Pool was "viewable from the Tonsberg Property. . . ." In response to that request, Tonsberg produced three photographs, Trial Exhibits 83, 84 and 85.

51. In June 2018, Ms. Tonsberg moved for summary judgment. In support of that motion, she submitted an affidavit dated June 13, 2018, in which she stated: "I can see portions of the pool project that defendants Matthew and Jeannette Lanza are building from my property." She attached to her affidavit two photographs, Trial Exhibits 83 and 84. Tonsberg stated that they were "taken from my property in April 2018" and showed "the view from my yard at that time." In fact, what Trial Exhibits 83 and 84 depict can be seen only if one enters the back yard of one of Tonsberg's next door neighbors, the Mastrogiovannis (who live closer to the Lanza Property), or if one uses a zoom lens. Tonsberg did the latter in December 2018, resulting in two other photographs admitted as Trial Exhibits 94 and 95.

52. In February 2019, the Tonsbergs removed from their property, near their boundary line with the Mastrogiovannis, a sizeable pine tree. Cutting down the tree made it easier to see the Lanza Property from the Tonsberg Property.

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On the second day of trial, the Court held that Ms. Tonsberg could challenge both the Pool and the Fence. After trial, it's clear that the Fence doesn't violate the Covenants and Restrictions as amended. It's true that ¶ 16 of the original Covenants and Restrictions prohibited the owners of golf course lots from installing "[b]oundary or peripheral fences or walls." But the Amendment replaced ¶ 16 in its entirety, and it no longer mentions fences. Amended ¶ 16(c) does grant golfers "[t]he perpetual right and easement for the sole and exclusive use of providing reasonable foot access for golfers to retrieve errant golf balls on unimproved areas of such lots," but Tonsberg introduced no evidence of "unimproved areas" on the Lanza Property or, if there are any, that the Fence blocks golfers from reaching them on foot. The Court thus will enter judgment in FAVOR of the Lanzas, and AGAINST Ms. Tonsberg, on her Fence claims.

Ms. Tonsberg faces no similar problem with the Pool: the No Pools Restriction means what it says. The question is whether the Court may, or should, enforce the Restriction.

The Supreme Judicial Court observed in Stop & Shop Supermarket Co. v. Urstadt Biddle Properties, Inc., 433 Mass. 285 , 290 (2001) that "restrictions on land are disfavored. . . ." A handful of subsequent appellate cases have run with that theme. See, for example, Jones v. Murphy, 60 Mass. App. Ct. 1 , 4 (2003); Apfel v. Miller, 85 Mass. App. Ct. 450 , 454 (2014); Perry v. Aiello, 92 Mass. App. Ct. 255 , 258-259 (2017). But Stop & Shop doesn't hold that one can't enforce a restrictive covenant. The decision acknowledges that the Legislature "has not precluded landowners (who otherwise comply with the requirements of [G.L. c. 184,] §§ 26-30) from bargaining for, and enforcing, beneficial land use restrictions. . . . Such restrictions, as with any other contractually bargained-for agreements, are often beneficial and valuable." Stop & Shop, 433 Mass. at 290 (footnote omitted). See also American Law Institute, Restatement (Third) of Property (Servitudes) § 3.1, comment a (2000) (noting beneficial role of certain restrictions in modern land development); Richard A. Posner, Economic Analysis of Law § 3.8 (3d ed. 1986) (restrictive covenants useful for maximizing the value of large parcel of land, for both the parcel's original owner and the buyers of subdivided tracts).

A more accurate description of where Stop & Shop leaves Massachusetts law concerning restrictive covenants is found later in the decision, after the court's comments about what's disfavored. There the court observed: "There is no superseding public policy between the somewhat differing general principles that, on the one hand, disfavor land use restrictions, and, on the other hand, uphold contractually bargained for restrictions that permit landowners to use their land in certain ways." Stop & Shop, 433 Mass. at 292.

This Court thus starts, by agreement of the parties, with G.L. c. 184, § 30. The General Court adopted § 30 "to promote the 'reasonable use of land for purposes for which it is most suitable,' c. 184, § 30 (4), as well as to increase the marketability of real estate which may be impaired by obsolete restrictions." Blakely v. Gorin, 365 Mass. 590 , 599 (1974). The statute codifies various long-standing equitable limitations on a party's right to enforce restrictions on real property. See id. at 595-598. It does so in two ways; the Lanzas try to use both in an effort to avoid obeying the No Pools Restriction.

The first way in which § 30 limits restrictions is by narrowing the class of persons who may seek enforcement of restrictions. That limitation appears in the first two sentences of § 30 (chiefly the first; the second is a later-added riff):

No restriction shall in any proceeding be enforced or declared to be enforceable . . . unless it is determined that the restriction is at the time of the proceeding of actual and substantial benefit to a person claiming rights of enforcement. There shall be a presumption that no restriction shall be of such actual and substantial benefit except in cases of gifts or devises for public, charitable or religious purposes, if any part of the subject land lies within a city or town having a population greater than one hundred thousand persons unless (1) such restriction at the time it was imposed is not more burdensome as to requirements for lot size, density, building height, set back, or other yard dimensions than such requirements established by restriction or restrictions applicable to the land of the persons for whose benefit rights of enforcement are claimed; or (2) such restriction is part of a common scheme applicable to four or more parcels contiguous except for any intervening streets or ways to land of the grantor or other premises purported to be benefited thereby; or (3) unless such restriction is in favor of contiguous land of the grantor.

An "actual benefit" under § 30 is different from a "substantial benefit" under the same statute. An "actual benefit" is one that arises "from the existence and enforceability of the restriction." Garland v. Rosenshein, 420 Mass. 319 , 321 (1995). Garland distinguishes that sort of benefit from one associated with the "hold-up price" of the restriction (that is, the price the holder of the restriction could wangle from the person who's subject to the restriction as compensation for ignoring or waiving the restriction) or an advantage not otherwise associated with land that expressly benefits from the restriction. See id.; see also Inniss v. Toth, 15 LCR 153 , 154 (2007) (Scheier, J.) (developer of neighborhood who no longer owned land in that neighborhood lacked an "actual benefit" from enforcement of restrictions on neighborhood lots; alleged damage to developer's reputation doesn't suffice).

Ms. Tonsberg will realize an "actual benefit" from enforcement of the No Pools Restriction. She, like the Lanzas, owns a golf course lot. Frederick M. testified that the Covenants and Restrictions, and the Amendment, were intended to benefit the owners of the golf course lots as well as the Club; the Court believes Ms. Tonsberg's testimony that her aim in this case is to stop construction of in-ground pools on golf course lots. Paragraph 17 of the Covenants and Restrictions further reinforces Tonsberg's claim to an actual benefit from enforcement of the No Pools Restriction. Paragraph 17 declares that "[t]he covenants and restrictions of this declaration shall run with and bind with the land, and shall insure [sic] to the benefit of and be enforceable by the owner of any land subject to this declaration and their heirs." (Emphasis added.)

The Lanzas attempt to recast this case as one, like Garland, that involves a hold up. They cite statements by Frederick W. that his wife would dismiss her lawsuit if the Lanzas supported some of Frederick W.'s development objectives in Phase IV. The Lanzas stretch Garland's holding too far. Garland and its progeny don't hold that a person seeking enforcement of a restriction under c. 184, § 30 must have pure intentions. See also Gulf Oil Corp. v. Fall River Housing Authority, 364 Mass. 492 , 500 (1974) ("[A] landowner's motive does not affect his right to enforce a restriction."). Instead, Garland creates only a threshold for enforcement claims: prospective enforcers must have, at the very least, an interest that's rooted in the enforcer's continued ownership of benefited land. That isn't to say that misconduct or bad acts play no role under § 30: they can, as one will see when this Court reaches the third sentence of § 30. But bad acts aren't a factor in assessing whether a party who seeks enforcement of a restriction meets § 30's requirement that he or she will receive an "actual benefit" from enforcement.

Ms. Tonsberg also will gain a "substantial benefit" from the enforcement of the No Pools Restriction. The substantial benefit requirement is a quantitative one: will the person seeking enforcement realize more than a trivial benefit if the restriction is enforced? See Blakely, 365 Mass. at 603 (restriction against bridging an alleyway was of "substantial benefit" to abutter, who showed that shadows from proposed bridge would have more than a "de minimis effect" on abutter's property); Connaughton v. Payne, 56 Mass. App. Ct. 652 , 657 (2002) (plaintiff "substantially benefited" from limit on number of nearby houses where evidence showed that development could affect wildlife on plaintiff's property). It's a requirement that "common scheme" and other restrictions imposed in connection with large real-estate developments pass easily. See Gulf Oil Corp., 364 Mass. at 497-498, 500-501 (discussing origins of Massachusetts common-law rule allowing owners of properties within common scheme to enforce scheme's restrictions; such restrictions are "of actual and substantial benefit" to each owner under § 30); Kline v. Shearwater Association, Inc., 63 Mass. App. Ct. 825 , 832-833 (2005). The second sentence of § 30 underscores the point. It declares that all kinds of private restrictions affecting properties in larger municipalities don't have "actual and substantial benefit" unless the restriction is one of three types. The second type of "unless" restrictions is those that are "part of a common scheme applicable to four or more parcels contiguous except for any intervening streets or ways to land of the grantor or other premises purported to be benefited thereby. . . ."

It shouldn't be surprising that common-scheme restrictions pop up in connection with golf-course developments. See, for example, Lovell v. Hartness, 251 Ga. App. 307, 554 S.E.2d 283 (2001); Smith v. Sheppard, 754 N.Y.S.2d 122, 301 A.D.2d 913 (2003) (restrictions include no-pools restriction); Gleneagle Civic Ass'n v. Hardin, 205 P.3d 462 (Colo. App. 2008); Fairfield Harbour Property Owners Ass'n, Inc. v. Midsouth Golf, LLC, 215 N.C. App. 66, 715 S.E.2d 273 (2011). True, there's debate over whether golf-course communities truly offer special value. Contrast Robert D. Feder, et al., Valuing Specific Assets in Divorce, § 13.06 (CCH Inc. 2019) (noting studies suggesting a premium exists) with Lior J. Strahilevitz, Exclusionary Amenities in Residential Communities, 92 Va. L. Rev. 437, 471 (2006) (noting studies that question premium). And Fenton v. Quaboag Country Club, Inc., 353 Mass. 534 (1968), recounts archly the disadvantages of golf-course residences (to wit, bad golfers); Amaral v. Cuppels, 64 Mass. App. Ct. 85 (2005), demonstrates that the skills of the average Massachusetts duffer haven't improved over the decades. Yet the evidence at trial showed that Phase IV of Indian Ponds Estates still has cachet as a golf-course community, and it's undisputed that Ms. Tonsberg owns a golf-course lot (as do scores of other people). Retaining the common scheme she and others bought into gives Tonsberg a substantial benefit, which gives her in turn the ability under the first sentence of § 30 to seek enforcement of the restrictions governing that common scheme, including the No Pools Restriction.

The Court now turns to the second way in which § 30 limits real-property restrictions.

That limitation appears in § 30's lengthy third sentence:

No restriction determined to be of [actual and substantial] benefit shall be enforced or declared to be enforceable, except in appropriate cases by award of money damages, if (1) changes in the character of the properties affected or their neighborhood, in available construction materials or techniques, in access, services or facilities, in applicable public controls of land use or construction, or in any other conditions or circumstances, reduce materially the need for the restriction or the likelihood of the restriction accomplishing its original purposes or render it obsolete or inequitable to enforce except by award of money damages, or (2) conduct of persons from time to time entitled to enforce the restriction has rendered it inequitable to enforce except by award of money damages, or (3) in case of a common scheme the land of the person claiming rights of enforcement is for any reason no longer subject to the restriction or the parcel against which rights of enforcement are claimed is not in a group of parcels still subject to the restriction and appropriate for accomplishment of its purposes, or (4) continuation of the restriction on the parcel against which enforcement is claimed or on parcels remaining in a common scheme with it or subject to like restrictions would impede reasonable use of land for purposes for which it is most suitable, and would tend to impair the growth of the neighborhood or municipality in a manner inconsistent with the public interest or to contribute to deterioration of properties or to result in decadent or substandard areas or blighted open areas, or (5) enforcement, except by award of money damages, is for any other reason inequitable or not in the public interest.

A party who seeks under the third sentence of § 30 to avoid a restriction's bite has the burden of proving that the sentence applies. See Cogliano v. Lyman, 370 Mass. 508 , 512 (1976); Walker v. Sanderson, 348 Mass. 409 , 414 (1965). The Lanzas argue that enforcement of the No Pools Restriction isn't appropriate owing to clauses (1) (changes in character of Indian Pond Estates), (2) (Ms. Tonsberg's inequitable conduct), and (5) (the general equities of this case).

The Court addresses each in turn.

Clause 1. 135 Wells Avenue, LLC v. Housing Appeals Committee, 478 Mass. 346 (2017), presents the Supreme Judicial Court's most recent discussion of when changes in a neighborhood may render restrictions binding that neighborhood inequitable to enforce. Quoting Cogliano, 370 Mass. at 512, the 135 Wells Avenue Court observed:

A restrictive covenant may no longer be valid where a "neighborhood [has] deteriorated or changed its character to such an extent, from the time the restriction was laid on to the time of trial, that enforcing the restriction according to its terms would be merely quixotic – failing to serve the grantor's original purpose and impeding present desirable and feasible uses." On the other hand, if "the neighborhood [is] still maintaining its essential character, although against some odds, with the restriction serving, as it was intended to serve, to reduce those odds or prevent their getting longer," then the restriction remains valid.

135 Wells Avenue, 478 Mass. at 359 (brackets in original).

With these principles in mind, the 135 Wells Avenue Court upheld enforcement in 2015 of a covenant imposed by a city in 1962 that confined 153 acres of private land to specific non-residential uses. The covenant's original aim was to promote development of the restricted parcels as a light-manufacturing district. See id. at 348-349. It was undisputed that, by 2015, the restricted properties supported no manufacturing whatsoever ("and apparently never did"), and that the city had frequently waived the covenant. Id. at 359-360, 349-350. The trial court nevertheless found that the covenant, by restricting

all residential use of the land, . . . maintain[ed] an active economic district, protecting certain areas as open space, and maintaining buffer zones which protect the Charles River from encroaching development. This benefits the city's [abutting] parcel, which itself is restricted to being used for conservation or parkland, as well as the owners of the neighboring parcels. Therefore, we agree that the nature of the district has not changed so much as to invalidate the restrictive covenant.

Id. at 360 (citation omitted).

Phase IV, the Country Club, and the Tonsberg and Lanza Properties have experienced far less change than was present in 135 Wells Avenue:

* The Developer imposed the No Pools Restriction in 2001, merely eighteen years ago. The covenant in 135 Wells Avenue, by contrast, was more than 50 years old at the time of enforcement.

* The original purpose of the 135 Wells Avenue covenant, fostering the creation and operation of a light-manufacturing district, never was achieved. By contrast, the Developer built (and still operates) the Club's golf course, and has sold and promoted the development of nearly all of the Phase IV lots, especially its golf course lots.

* The city waived the covenants in 135 Wells Avenue several times (although the city never waived the key prohibition at issue in the case, one against residential uses). By contrast, the Developer never has waived the Covenants and Restrictions or the Amendment (at worst, the Developer has only under-enforced some of them). Even if one treated the Comprehensive Permit developments as the product of a "waiver" of the Covenants and Restrictions (not true: the Covenants and Restrictions don't apply to them), 135 Wells Avenue teaches that a waiver causes a restriction to become unenforceable only if it causes changes that make "'enforcing the restriction according to its terms . . . merely quixotic – failing to serve the grantor's original purpose and impeding present desirable and feasible uses.'" 135 Wells Avenue, 478 Mass. at 359, quoting Cogliano, 370 Mass. at 512. The Lanzas haven't proven that enforcement of the No Pools Restriction would fail to serve the original purpose of the Amendment, or impede present desirable and feasible uses of lots in Phase IV.

* But like the covenant at issue in 135 Wells Avenue, the No Pools Restriction continues to provide some benefit to all of the parcels that are subject to the restriction: it protects the golf course, which in turn enhances the surrounding golf-course community.

This Court discerns no fact or combination of facts relating to the condition of the office park in 135 Wells Avenue and the condition of the Phase IV properties that would allow enforcement of the covenant at issue in the former case, but deny enforcement of the Amendment in the latter. The Court thus rejects the Lanzas' Clause 1 challenge to enforcement of the No Pools Restriction.

Clause 2. This clause prevents enforcement of a restriction if "conduct of persons from time to time entitled to enforce the restriction has rendered it inequitable to enforce except by award of money damages." The appellate courts haven't said much about Clause 2. Without mentioning the clause, both Weinstein v. Tariff, 356 Mass. 738 (1970) (rescript), and Exit 1 Properties Limited Partnership v. Mobil Oil Corporation, 44 Mass. App. Ct. 571 , 577 (1998), suggest that laches is an equitable defense to enforcement of a restriction (see also Moritz v. Rogatkin, 14 LCR 32 , 37-38 (2006) (Scheier, J., denying enforcement under Clause 2 on grounds of laches)), but the Lanzas don't argue that Ms. Tonsberg slept on her rights or did anything to indicate she was fine with the Lanza Pool. The court in Kline, 63 Mass. App. Ct. at 833, likewise suggests that waiver may be an equitable defense to enforcement under Clause 2. See also Stepanian v. Saraceno, 24 LCR 8 , 12-13 (2016) (Speicher, J., denying enforcement on grounds of waiver). But the Lanzas don't make a waiver argument either.

Atwood v. Walter, 47 Mass. App. Ct. 508 (1999), comes closest to addressing what the Lanzas contend is Ms. Tonsberg's inequitable conduct here. The Atwood Court made plaintiff Jacob Atwood's enforcement of a restriction that required all homes in a common-scheme development to have wood shingles contingent on his replacing his own roof, which didn't comply with the shingle requirement either. Atwood viewed the shingle restriction as reflecting corresponding promises among owners within a common scheme, and held that § 30 doesn't allow a person who breaches a restriction to obtain enforcement of the identical restriction. See Atwood, 47 Mass. App. Ct. at 516-518.

The Lanzas concede that Ms. Tonsberg hasn't violated the No Pools Restriction. They nevertheless claim that she has violated ¶ 9 of the Covenants and Restrictions ("[n]o business, trade or profession shall be conducted from any building on any lot without express permission from Developer") by (a) providing real-estate brokerage services while on the Tonsberg Property and (b) assisting those businesses of Frederick W. that list the Tonsberg Property as their principal place of business. (The Lanzas also point out that Ms. Tonsberg operates a hair salon from Lot 4-24, but that lot isn't subject to the Covenants and Restrictions.) The Lanzas further contend that Ms. Tonsberg facilitated the creation of the Comprehensive Permit developments, which the Lanzas believe have lessened the value of the neighborhood.

Ms. Tonsberg and Frederick W. haven't violated ¶ 9 of the Covenants and Restrictions.

The interpretation of a restriction on real property is a question of law. The court's task in interpreting a restriction

"is to ascertain the intention of the parties in executing and accepting the [documents of conveyance]. That intention is to be found in the words used interpreted in light of all the material circumstances and the pertinent facts known to the parties." A restrictive covenant must, however, "be strictly interpreted in favor of limiting the restraint on use of the granted premises."

Well-Built Homes, Inc. v. Shuster, 64 Mass. App. Ct. 619 , 634-35 (2005) (citations omitted, brackets in original, quoting Allen v. Massachusetts Bonding & Ins. Co., 248 Mass. 378 , 383 (1924), and Brennan v. Kos, 15 Mass. App. Ct. 513 , 514 (1983)). Paragraph 9 reads in full (bold in original; italics added):

9. ACTIVITIES

No obnoxious or offensive activity shall be carried on upon any lot, nor shall anything be done thereon which may be or become an annoyance or nuisance to the residential neighborhood. No business, trade or profession shall be conducted from any building on any lot without express permission from Developer.

The text of ¶ 9 makes clear that it aims to limit activities "which may be or become an annoyance or nuisance to the neighborhood." It's also important to remember that the Developer imposed the Covenants and Restrictions as part of a common scheme. Those two facts put the second sentence of ¶ 9 in proper context. The sentence doesn't state, for example, that "no business, trade or profession shall be conducted on any lot": after all, the Developer was building a quintessential place to "conduct" business, an American golf course. See, for example, Borne v. Haverhill Golf & Country Club, Inc., 58 Mass. App. Ct. 306 , 320 (2003). Instead of prohibiting commerce on restricted lots, the second sentence of ¶ 9 phrases its prohibition in terms of business, trade or professions being "conducted from any building on any lot. . . ."

Inserting "from any building" into the second sentence of ¶ 9 eliminates the doing-business-while-golfing problem. But it introduces an ambiguity, as "from" has two different meanings. According to The American Heritage Dictionary of the English Language (1976), "from" can mean "[w]ith a person, place, or things as the source, cause or instrument: a note from the teacher." (Emphasis in original.) But "from" also can mean "[o]ut of: take a book from the shelf." (Emphasis again in original.) If ¶ 9 uses "from" in the former sense, ¶ 9 would prohibit commerce solely because something within a building on a restricted lot was its source or cause. That reading would prohibit a lot owner from having an inconspicuous home office. It would outlaw making business calls from a restricted dwelling, or getting unremarkable business mail at a restricted home, or preparing for an important meeting in the privacy of one's restricted den, or trading stocks over the internet while sitting at a restricted breakfast table. But if ¶ 9 uses "from" in the latter sense, it would prohibit only that commerce that physically leaves a restricted building – in other words, commerce that's noticeable.

The latter interpretation of "conducted from any building" is the better reading, one that's more consistent with the purposes and background of ¶ 9. The latter interpretation also resolves "'in favor of freedom of the land from servitude'" the doubt over the meaning of "from" as it appears in the second sentence of 9. Well-Built Homes, 64 Mass. App. Ct. at 636, quoting Boston & Maine R.R. v. Construction Mach. Corp., 346 Mass. 513 , 518 (1963). The Court thus reads ¶ 9 as prohibiting only those business, trade or professional activities that a person, outside of a building on a restricted lot, could detect as the operation of a business, trade or profession. Those are the only activities that could affect Phase IV's common scheme. The Lanzas offered no proof at trial that anyone standing outside of the Tonsberg Property could sense that the Tonsbergs were conducting business there. Hence, under the Court's reading of ¶ 9, the Tonsbergs haven't violated it.

The Tonsbergs likewise haven't acted inequitably, for purposes of Clause 2, by promoting the Comprehensive Permit developments. That's because none of the Comprehensive Permit developments is subject to the Covenants and Restrictions. Some of the Putter's Place lots are subject to the Amendment, but the Lanzas didn't prove that anything on those lots violates the Amendment. (The Lanzas argue that one Putter's Place lot has a fence; for the reasons explained earlier in this decision, the Amendment doesn't specifically prohibit fences.) There also isn't anything inequitable about Frederick W. proposing that his wife would drop her objections to the Lanza Pool if the Lanzas agreed to support Frederick W.'s development objectives. Public policy favors settlement of lawsuits. See Cabot Corp. v. AVX Corp., 448 Mass. 629 , 638 (2007). The Lanzas thus can't escape enforcement of the No Pools Restriction under Clause 2.

Clause 5. Clause 5 prohibits enforcement of a restriction (except, perhaps, through money damages) if "enforcement . . . is for any other reason inequitable or not in the public interest." While the Lanzas correctly characterize Clause 5 as a "catch all," it's not one that derogates from Clauses 1-4: Clause 5 applies only if one can show that enforcement is "for any other reason" (emphasis added) inequitable or not in the public interest. "Other reason" means a reason not appearing in Clauses 1-4. See Kline, 63 Mass. App. Ct. at 833-834 (assessing under Clause 5 a claim, separate from plaintiff's "Clause 2" waiver claim, that a restriction was too vague, thereby making enforcement inequitable). The Court thus rejects the Lanzas' argument that the Court can take their unsuccessful proofs pertaining to Clauses 1 and 2, combine that evidence, and declare the Lanzas victors under Clause 5.

That leaves the Lanzas with two "other" arguments (that is, contentions not raised in connection with Clauses 1 and 2) for why the Court shouldn't enforce the No Pools Restriction. The first is the presence of an in-ground pool on 131 Country Club Way. Yes, there is a pool at 131 Country Club Way, and that pool is closer to the Tonsberg Property than the Lanza Pool. But 131 Country Club Way isn't subject to the Amendment, and it's not a golf course lot. The Lanzas don't explain why a third party's activities on an unrestricted lot make it inequitable for Ms. Tonsberg to enforce the No Pools Restriction against a restricted lot such as the Lanza Property.

The Lanzas' second argument is that Ms. Tonsberg falsely claimed in a June 2018 affidavit, in support of an unsuccessful motion for summary judgment, that she took from her property two photographs, Trial Exhibits 83 and 84. The Lanzas contend that Tonsberg's conduct constitutes fraud on the court, and that it would be inequitable under Clause 5 to reward Tonsberg with enforcement of the No Pools Restriction. The Lanzas also weave into their "fraud" argument the Tonsbergs' February 2019 removal of a pine tree from their property, supposedly to make it easier for them to prove that they can see the Lanza Property from the Tonsberg Property.

The Lanzas haven't provided any authority that Clause 5 addresses litigation misconduct, but then again, the Clause is a catch-all. One could envision cases where conduct amounting to a fraud on the court would make it inequitable under Clause 5 for that court to enforce a restriction. But what happened in this case doesn't amount to a fraud on the court. The test for that

is stringent, and a party general will not be liable for fraud on the court unless "it can be demonstrated, clearly and convincingly, that [the] party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense."

In the Matter of the Trusts Under the Will of Crabtree, 449 Mass. 128 , 148-149 (2007) (citation omitted, brackets in original, quoting Rockdale Mgt. Co. v. Shawmut Bank, N.A., 418 Mass. 596 , 598 (1994)).

The Lanzas' fraud-on-the-court argument fails on three levels. First, they haven't proven that Ms. Tonsberg lied. It's possible that she dissembled in her June 2018 affidavit about where she took Trial Exhibits 83 and 84, but it's equally possible (at least on the current record) that her affidavit is truthful: she took the photographs from her property, albeit with an undisclosed boost from a zoom lens. Second, the Tonsbergs' conduct didn't thwart the Lanzas from challenging at trial Ms. Tonsberg's assertions about her view of the pool. The facts recited in the Lanzas' November 2018 motion to dismiss for fraud on the court show that they were able to investigate the circumstances surrounding Trial Exhibits 83 and 84 thoroughly. That investigation included entering the Tonsberg and Mastrogiovanni properties so as to recreate Tonsberg's photographs. Mr. Lanza introduced the result of those recreations at trial. He also testified about the removal of the tree, and led the Court during its view to the very spot the tree once occupied. And his attorneys thoroughly cross-examined Ms. Tonsberg at trial about her photographs. If a party is able to counter his or her opponent's misconduct using the ordinary tools of litigation, fraud on the court hasn't occurred. See Wojcicki v. Caragher, 447 Mass. 200 , 210-211 (2006) (citations omitted, quoting Lockwood v. Bowles, 46 F.R.D. 625, 628, 632-633 (D.D.C. 1969): "[E]ven '[p]erjury does not constitute "fraud upon the court"' when there is no evidence that the judicial process itself was corrupted. 'The possibility of a witness testifying falsely is always a risk in our judicial process, but there are safeguards within the system to guard against such risks. The most basic of these is cross-examination. . . .'").

Third, and perhaps most importantly, the issue of whether anyone can see the Lanza Pool from the Tonsberg Property is immaterial to the § 30 issues in this case, aside from the Lanzas' Clause 5 argument. Before trial, Ms. Tonsberg stipulated that she wasn't claiming any "actual and substantial benefit" from the No Pools Restriction that depends on her ability to (not) see the Lanza Pool. Whether Tonsberg can view the pool also has no bearing on the Lanzas' Clause 1 and Clause 2 arguments. The Lanzas' Clause 5 arguments thus fail.

For these reasons, the Court will enter judgment in FAVOR of Ms. Tonsberg, and AGAINST the Lanzas, on Counts I and II of her Complaint with respect to the Lanza Pool. The Court will order the Lanzas, their family members, guests and invitees immediately to stop entering or otherwise using the Pool, regular and normal maintenance excepted. Ms. Tonsberg is free to request additional remedies should she believe more's needed.