THOMAS and ANDREA ALEXANDER v. JANET M. KLUEVER and ROLF KLUEVER, and HOLLY SANDS HOMEOWNERS CORPORATION

INTRODUCTION

This action was commenced by plaintiffs Thomas and Andrea Alexander ("Mr. Alexander," "Ms. Alexander," and collectively "the Alexanders") with the filing of a complaint on December 20, 2019 ("the Complaint") against the defendants Janet M. Kluever and Rolf Kluever ("Ms. Kluever," "Mr. Kluever," and collectively "the Kluevers") and Holly Sands Homeowners Corporation ("Holly Sands"). In the Complaint, the Alexanders allege that the Kluevers and Holly Sands have wrongfully failed to remove vegetation and a fence on the Kluevers' property and seek declarations (1) that Holly Sands is obligated to enforce certain restrictions imposed by the Holly Sands Realty Trust ("the Trust"), the common grantor with respect to the real estate at issue here, which restrictions allegedly prevent the Kluevers from placing vegetation and erecting a fence on their property, (2) that the Kluevers are in violation of those restrictions, and (3) that certain amendments allegedly made to the restrictions but enacted by less than 100% of the successors in title to the Trust are invalid. On January 30, 2020, Holly Sands filed Defendant Holly Sands Homeowners Corporation's Motion To Dismiss The Complaint Pursuant To Mass. R. Civ. P. 12(B)(6) ("the Motion"). The Motion is based on three arguments: (1) that the Alexanders have waived their right to object to the Kluevers' alleged violations of the restrictions, (2) that, under the operative documents, Holly Sands has no obligation to enforce the restrictions and so the complaint fails to state a claim against it, and (3) that, as a matter of law, the subsequent amendments to the operative documents are valid.

For the reasons set forth below, the Motion is ALLOWED IN PART and DENIED IN PART.

THE RELEVANT FACTUAL ALLEGATIONS [Note 1]

On June 1, 1984, Frank R. Duffy, Jr. ("Mr. Duffy"), as Trustee of the Trust, executed a document entitled "Holly Sands Covenants And Restrictions" ("the Declaration"). Complaint, ¶ 5 and Ex. A. The Declaration is recorded in the Barnstable County Registry District ("the Registry District") as Document No. 336,735. The Declaration imposes on Lots 313 through 322 and on Lot 325, all as shown on Land Court Plan 16583-U ("the Plan"), covenants and restrictions "which shall constitute common scheme restrictions in accordance with section 26 of Chapter 184 of the Massachusetts General Laws." Declaration at 1 and Complaint Ex. B. Lot 325, immediately abutting Lot 313 to the north, was combined with Lot 313 and the combined lots were renumbered as Lot 333, all as shown on the Plan and on Land Court Plan 16583-W. Complaint Ex. B. Lots 323 and 324 are exempted from the Declaration. Declaration at 1. As a result, the Declaration, which was extended through May 31, 2034 by a Notice Of Extension recorded at the Registry District on July 3, 2013, Complaint ¶ 10, is appurtenant to ten lots (Lots 314 through 322 and Lot 333) ("the Lots").

Ms. Alexander is the current owner of Lot 315. See Certificate of Title No. 171107. The deed to Ms. Alexander recites that the grant is "[s]ubject to Covenants and Restrictions dated June 1, 1984, being Document No. 336,735." The Kluevers, as Trustees of the Kluever Nominee Trust, are the owners of Lot 314. See Certificate of Title No. 160771. [Note 2] The deed to the Kluevers, as trustees, recites that "[s]aid land is subject to Covenants and Restrictions dated June 1, 1984, being Document No. 336,735." As shown on the Plan, the Kluevers' Lot 314 is immediately to the north of Ms. Alexander's Lot 315. Complaint Ex. B.

The Declaration both grants rights and imposes restrictions on the Lots. With respect to rights, the Declaration grants "as appurtenant to each of said lots as shown on said plan, an easement to use said driveway easement for purposes of ingress and egress to each lot in common with others entitled thereto." Declaration at 2. The Declaration also provides that the record owners of the Lots shall be members of Holly Sands and that "every member shall have a right and easement of use and enjoyment in and to the open spaces shown on said plan, the fee to which is to be conveyed to the Holly Sands Homeowners Corporation and such easement shall be appurtenant to and pass with the record title to every lot." Declaration at 4.

With respect to restrictions imposed, the Declaration sets forth several that are permanent (e.g., no animals except a reasonable number of customary household pets; boats, campers and house trailers must be kept in a garage or an approved enclosure; residential dwellings must contain at least 1,000 square feet of living space) and several that address the period of initial construction on the Lots. Declaration at 1-2. The following provisions, some of which are permanent and some of which are temporary, are relevant to the Motion:

1. Each of said lots contains within its perimeter as shown on said plan, an area set off by dotted lines on said plan which area is hereinafter referred to as the "building area." All buildings and structures of every kind, including swimming pools, fences and antennas, but excluding septic systems, wells and driveways, shall be built only within the confines of the building area.

. . .

3. These covenants and restrictions are imposed limiting building and landscaping to the building areas so that the remaining area of each lot remains in its natural state. Therefore, on the remaining area of each lot (i.e., the area outside the building area), no landscaping shall be undertaken except to remove dead or diseased trees, branches or brush, to prevent erosion or hazardous situations or to improve views of Ashumet Pond. Within the building area of each lot, trees and vegetations shall be removed only as required or necessary for construction of buildings, driveways, septic systems and wells and for approved landscaping and provision of views of water from houses.

. . .

12. a) Until residences and appurtenant buildings are erected, and landscaping completed on all 11 lots shown on the said plan, these common scheme restrictions created for the benefit of the lot owners shall be enforced only by the Architectural Review Committee, hereinafter defined. After the 11 residences are completed, any lot owner may enforce these restrictions at law or in equity. The Architectural Review Committee shall have authority to enjoin buildings which do not conform to previously approved plans.

. . .

13. The Architectural Review Committee: The Architectural Review Committee shall be Claude Miquelle Assoc., Inc., a Massachusetts corporation in Melrose, Middlesex County, Massachusetts, which corporation shall serve as said Committee until all residences are completed. It shall be succeeded by the duly elected officers of the Holly Sands Homeowners Corporation, reflected as such in the Office of the Secretary of State for the Commonwealth of Massachusetts, State House, Boston, Massachusetts.

. . .

14. Approval of Building Plan Restrictions: No structure, whether residence, appurtenant building, tennis court, swimming pool or other improvement, shall be constructed or maintained on any lot and no alteration to the exterior of a structure or addition thereto, shall be made unless complete plans, specifications and lot plans therefor, showing the exterior design, height, building material and color scheme thereof, the location of the structure plotted horizontally and vertically, the location and size of the driveways, the location of the sewerage disposal system and well, the general plan of landscaping, exterior lighting, fencing, walls and windbreaks, and the grading plan, shall have been submitted to and approved in writing by the Architectural Review Committee, and a copy of such plans, specifications and lot plans as finally approved, are deposited with said Committee.

The Architectural Review Committee shall issue a written certificate, acknowledged for the purpose of recording, without the necessity of a recorded vote, certifying that the building and landscaping plans required by this restriction have been submitted to said Committee and have been approved.

If no notice of suit is recorded in the Barnstable Registry of Deeds, indexed in the Grantor Index under the lot owner(s) name, within three (3) months after the completion of any building, structure, tennis court, swimming pool or other improvement, alteration, addition or landscaping, the same shall be conclusively deemed to have complied with this restriction.

. . .

17. General Provisions:

Section A -- Duration:

The covenants and restrictions of this Declaration shall run with and bind the land, and shall inure to the benefit of and be enforceable by the Holly Sands Homeowners Corporation or the owner of any land subject to this Declaration and their successor in record title, for a term of thirty (30) years from the date this Declaration is recorded, after which time said covenants and restrictions shall be extended in accordance with General Laws (Ter. Ed [sic]) Chapter 184, Section 27, if the then existing members of the Holly Sands Homeowners Corporation so decide.

On September 15, 1985, just over one year after the Declaration was executed, Mr. Duffy, as the owner of Lots 315, 318 and 320, the Kluevers as the owners of Lot 314, and the then owners of Lots 316, 317, 319, 321, 322 and 333, being all of the then owners of the Lots, executed a document entitled "View Maintenance Agreement" ("the View Easement"). Complaint Ex. C. In pertinent part, the View Easement states:

It is the expressed intention of the parties to create an arrangement wherein the owners of the various lots shall have a view of Ashumet Pond from the building areas of their respective lots as shown on Land Court Plan 16583-U and subsequently lettered plans of the same area.

Therefore, the undersigned owners agree that beginning with lot 333 as shown on Land Court Plan 16583-W, the owner or owners of each contiguous lot in ascending numerical order beginning with lot 314 through and including lot 320 as shown on Land Court Plan 16583-U shall have the right to require that the owner or owners of lots to the north clear and remove limbs and brush and other materials obstructing their view of Ashumet Pond from such lots for the purpose of enhancing and preserving the view of Ashumet Pond, provided, however, this shall not be construed to require the removal of any building or structure or landscaping feature within the building area of each lot.

Such clearing and removal may be done by the Holly Sands Homeowners Association, Inc., or a similar homeowners association, acting on behalf of the various lot owners. . . .

Complaint Ex. C.

On August 7, 1987, some two years after the execution of the View Easement, all of the then owners of the Lots executed a document entitled "Waiver Of Restrictions," which was registered at the Registry District as Document No. 436929. In that document, the parties agreed that the "original restrictive covenants contained in said Document No. 336,735 [the Declaration], be and the same are hereby changed and modified, by establishing a new southeasterly boundary line, for the 'building area' within said LOT 317, which new boundary line shall be two feet easterly of and parallel to the existing southeasterly boundary line . . . ." The document further states that the modification to the building area is being made so that the house presently existing on Lot 317 will be situated completely within the building area, "thus bringing it into conformance with the restrictions."

Three days later, on August 10, 1987, Holly Sands was incorporated in the Commonwealth of Massachusetts as a nonprofit corporation. By deed dated September 21, 1987 and recorded at the Registry District as Document No. 446,217, Mr. Duffy, as Trustee of the Trust, conveyed Lot 324 as shown on the Plan to Holly Sands. That deed states that the conveyance is "[s]ubject to matters set forth in 'Holly Sands Covenants and Restrictions' recorded as Document No. 336,735."

Ms. Alexander alleges that, by majority vote, the owners/shareholders of Holly Sands adopted two amendments to the Declaration in 2014 and 2019 that Ms. Alexander contends are invalid. Complaint ¶¶ 26-27. In fact, the amendments are to Holly Sands' by-laws, not to the Declaration. Complaint Exs. F, G.

The 2014 amendment, entitled "Fourth Amendment" ("the Fourth Amendment"), opens by stating that "[t]he undersigned, being a majority of the members of Holly Sands Homeowners Corporation, . . . in furtherance of the powers [sic] to amend its by-laws granted by Article XI of the By-Laws, hereby adopted the following amendment on 8.17.2014." Complaint Ex. F. The Fourth Amendment purports to regulate landscaping outside of the originally established building areas, including the provision that "[e]xisting landscaping beyond the rear Building Area line can be retained and maintained if kept at or below 3 feet max plant height. . . ." It was executed by the owners of lots 314, 318, 319, 320, 321 and 333 and not executed by the owners of lots 315, 316, 317, and 322. It has not been registered with the Registry District.

The 2019 amendment, entitled "By-Laws Of Holly Sands Corporation Fifth Amendment" ("the Fifth Amendment"), repeats the same opening as in the Fourth Amendment but with a date of June 30, 2019. Complaint Ex. G. The Fifth Amendment then purports to reaffirm or modify, as the case may be, paragraphs 1 through 14 of the Declaration, sometimes in incomplete sentences. The following provisions of the Fifth Amendment are of relevance to this matter:

Restriction 1. BUILDING AREA . . . .retain original text "as is," see Covenant[.]

. . .

Restriction 3. LANDSCAPING OUTSIDE OF BUILDING AREA . . . restated: Landscaping is permitted outside of the Building Area as established by general practice over the past 30 years, and as revised per the following:

(a) Landscaping permitted in the lot's front yard up to the Holly Sands Common Drive,

(b) Landscaping permitted along the left and right side property lines up to the lot's rear Building Area line,

(c) Existing landscaping beyond the lot's rear building area is permitted, but must be kept to 3 feet in height,

(d) NO new landscaping will be permitted beyond the lot's rear building line.

Beyond the above expanded landscaping areas for each lot there shall be:

(e) NO landscaping in the lot's rear open and wooded spaces adjoining the HSHC [Holly Sands Homeowners Corporation] Common Land, wooded spaces to be left in a neat natural state to match the adjacent Common Land; and

(f) NO new landscaping in the lot's front buffer area between the Common Drive and Currier Road . . . this buffer area is to be kept in a neat natural state, free of standing dead, leaning or uprooted trees, fallen trees and branches, etc . . . .the clearings for occasional parking in the front buffer land areas of some lots have been established by general practice over many years and can be continued . . .

. . .

Restriction 13. ARCHITECTURAL REVIEW COMMITTEE . . . .retain original text "as is", [sic] see Covenant: except the functions of the HSHC Architectural Review Committee have been transferred to the HSHC Governing Board (the Officers) . . . specifically excluded and voided from these committee functions is the last paragraph of the referenced original Covenant restriction regarding the entering of lots for the purpose of inspection and enforcement.

Restriction 14. APPROVAL OF BUILDING PLAN RESTRICTIONS . . . .retain original text "as is," see Covenant.

The Fifth Amendment was executed by all the lot owners except Ms. Alexander, owning Lot 315, and the owners of Lot 316. It also has not been registered with the Registry District.

Ms. Alexander alleges that the Kluevers have installed plantings and erected a fence outside of the building area of their lot in violation of the Declaration and the View Easement, that the Alexanders have made numerous objections to the Kluevers and to Holly Sands about those violations, Complaint ¶ 12, that the plantings and fence interfere with and diminish the Alexanders' view of Ashumet Pond, Complaint ¶ 13, and that the Kluevers and Holly Sands have failed to remove the plantings and fence despite written demand that they do so. Complaint ¶ 14.

DISCUSSION

The Standard Applicable To This Rule 12(b)(6) Motion

Ms. Alexander's Complaint seeks declaratory relief in three counts, as outlined above. Holly Sands seeks to dismiss all counts of the Complaint pursuant to Mass. R. Civ. P. 12(b)(6), contending that the Complaint fails to state a claim upon which relief could be granted. The application of Rule 12(b)(6) to declaratory judgment actions was recently addressed in Buffalo- Water 1, LLC v. Fidelity Real Estate Company, LLC, 481 Mass. 13 (2018). First, the court described the standard applicable generally to such motions:

In considering whether a count in a complaint survives a motion to dismiss under Mass. R. Civ. P. 12(b)(6), we accept as true the factual allegations in the complaint and the attached exhibits, draw all reasonable inferences in the plaintiff's favor, and determine whether the allegations "plausibly suggest" that the plaintiff is entitled to relief on that legal claim (citation omitted). Id. The allegations must be more than "mere labels and conclusions," and must "raise a right to relief above the speculative level" (quotations and citations omitted).

Id. at 17, quoting Galiastro v. Mortgage Elec. Registration Sys., Inc., 467 Mass. 160 , 164-165 (2014). Then, the Buffalo-Water court outlined a two-step analysis to be applied to such motions when directed at declaratory judgment actions. "First, the judge must determine whether the claim was 'properly brought' . . . [that is,] that an actual controversy exists, the plaintiff has legal standing to sue . . . and that all necessary parties have been joined." 481 Mass. at 18 (citations omitted). "Where the claim is 'properly brought,' as it is here, the judge must proceed to the second step: determining whether the facts alleged by the plaintiff in the complaint, if true, state a claim for declaratory relief that can survive a defendant's motion to dismiss." Id. If the plaintiff is not entitled to the declaratory judgment sought, even if all of the factual allegations of the complaint are true, the Buffalo-Water court recognized that either a dismissal of the action or a declaration of rights would be appropriate: "we see no convincing reason to prohibit a judge from dismissing a properly brought declaratory judgment count where it fails to state a claim under rule 12(b)(6). We also see no convincing reason to prohibit a judge from making explicit through a declaration of rights what would be implicit in a dismissal." Id. at 20.

Here, Mr. Alexander's role as a party to this proceeding does not survive review under the first step: he does not hold record title to Lot 315 and therefore does not have standing to assert the claims pursued here. Ms. Alexander, however, does and, there appearing to be an actual controversy to which the necessary parties have otherwise been joined (assuming that the Kluevers are substituted in their capacity as trustees of their nominee trust), the first step is satisfied. The arguments raised by Holly Sands in the Motion implicate the second step of the analysis and are addressed below.

Waiver

Holly Sands first contends that Ms. Alexander waived her right to contest the Kluevers' plantings and fence because she did not bring suit within the time limit set forth in ¶ 14 of the Declaration. That argument is based on Holly Sands' interpretation of ¶ 14, an interpretation that is not supported by the plain language of that provision. See Rana v. Nesr, 2018 Mass. App. Unpub. LEXIS 661 at *4, quoting Hamouda v. Harris¸ 66 Mass. App. Ct. 22 , 25 (2006) ("When the language of the applicable instruments is 'clear and explicit, and without ambiguity, there is no room for construction, or for the admission of parol evidence, to prove that the parties intended something different.'").

Paragraph 14 of the Declaration provides that "no structure" and "no alteration to the exterior of a structure or addition thereto" shall be made unless plans and specifications described therein are submitted to the Architectural Review Committee for approval. The Architectural Review Committee is to issue a certificate "certifying that the building and landscaping plans required by this restriction" have been submitted to it and approved. Then comes the language to which Holly Sands points: "If no notice of suit is recorded in the Barnstable Registry of Deeds, indexed in the Grantor Index under the lot owner(s) name, within three (3) months after completion of any building, structure, tennis court, swimming pool or other improvement, alteration, addition or landscaping, the same shall be conclusively deemed to have complied with this restriction." Declaration at 3.

According to Holly Sands, ¶ 14 required that the Alexanders file suit within three months of the completion of all offending landscaping and/or structures on the Kluevers' lot and that the Alexanders' failure to do so has rendered the landscaping and fence "compliant with the applicable restrictions." Motion at p. 5. This argument fails. [Note 3] Paragraph 14 only applies to new construction of structures and to alterations or additions to those structures. For those, detailed plans, including landscaping plans, are required to be submitted to the Architectural Review Committee. There is no allegation in the Complaint that the Kluevers' plantings or fence were part of either new construction or of an alteration or addition to an existing structure on Lot 314 and so ¶ 14 does not apply. Moreover, the third paragraph of ¶ 14 only provides a safe haven for those who do not comply with the first paragraph of ¶ 14: if no notice of suit is recorded within three months of completion (whether of a structure, other improvement or landscaping), "the same shall be conclusively deemed to have complied with this restriction" (emphasis added). "[T]his restriction" is referenced twice in ¶ 14, in the second paragraph and the third. It clearly references the provisions of ¶ 14, and only of ¶ 14. If notice of suit is not recorded within three months, then the lot owner will be deemed to have complied with the requirement of ¶ 14 that he or she file plans and obtain the approval of the Architectural Review Committee. Paragraph 14 says nothing about compliance with other restrictions contained in the Declaration.

Holly Sands' second waiver argument, lacking any citation to supporting authority, is based on an unauthenticated hearsay exchange of communications between Mr. Alexander and Holly Sands' then board president, in which Mr. Alexander allegedly agreed to waive his objections to the Kluevers' plantings as long as the plantings were maintained at a height of three feet or less. The court declined to consider those materials. See note 1 supra. On that ground alone, Holly Sands' argument fails.

Even if the court were to consider the materials proffered by Holly Sands, Holly Sands would fare no better. Waiver is the "intentional relinquishment of a known right." Doujotos v. Leventhal, 271 Mass. 280 , 282 (1930). "Ordinarily the question of waiver is one of fact." MacDonald & Payne Co. v. Metallic Arts of New England, Inc., 324 Mass. 353 , 356 (1949). See also Central Ill. Pub. Serv. Co. v. Atlas Minerals, Inc., 965 F. Supp. 1162, 1174 (C.D. Ill. 1997) (waiver is a legal question only when facts are undisputed "and only one possible inference may arise from those facts"), cited approvingly in Dynamic Mach. Works, Inc. v. Mach. & Elec. Consultants, Inc., 444 Mass. 768 , 773 (2005). Here, the communications offered by Holly Sands were with Mr. Alexander, not the property owner, Ms. Alexander; the communications related only to some plantings and not to the fence; and one cannot tell from those materials whether the plantings at issue then are the same plantings at issue now. There are issues of fact as to whether Mr. Alexander was acting as Ms. Alexander's agent, what particular improvements on the Kluevers' property were being addressed, and to what Mr. Alexander referred when he wrote "and all this goes away." Dismissal would not be appropriate on this record.

Holly Sands' Obligation To Act

Holly Sands next argues that, contrary to Ms. Alexander's contention that it is responsible for removing improvements that violate the Declaration or the View Easement, it is not so obligated. The language of the documents is in accord with Holly Sands' position.

The Declaration provides at ¶ 12 that, "[a]fter the 11 residences are completed, any lot owner may enforce these restrictions at law or in equity." That paragraph further provides that "[t]he Architectural Review Committee shall have authority to enjoin buildings which do not conform to previously approved plans," but does not impose any obligation on that committee to enforce the restrictions. Paragraph 13 of the Declaration gives members of the Architectural Review Committee and their agents authority to enter upon any lot to inspect and report upon "compliance with the restrictions imposed hereunder," but does not impose any enforcement obligation. At ¶ 17, Section A, the Declaration states that its covenants and restrictions "shall inure to the benefit of and be enforceable by the Holly Sands Homeowners Corporation or the owner of any land subject to this Declaration and their successor in record title." Again, no enforcement obligation is imposed on Holly Sands. In contrast, ¶ 15, Section C, states that "[t]he Holly Sands Homeowners Corporation shall maintain the open spaces and enforce the provisions of these restrictions insofar as they relate to the open spaces." Taken together, while these provisions give Holly Sands the right to enforce the restrictions contained in the Declaration, it is only with respect to the open spaces that Holly Sands is obliged to enforce the restrictions.

The View Easement states that "the owner or owners . . . shall have the right to require that the owner or owners of lots to the north clear and remove limbs and brush and other materials obstructing their view of Ashumet Pond." It also states that "[s]uch clearing may be done by the Holly Sands Homeowners Association, Inc., or a similar homeowners association, acting on behalf of the various owners." Once again, the provisions of the View Easement give Holly Sands the right, but not the obligation, to act.

In response to Holly Sands' argument, Ms. Alexander asserts that Holly Sands should be estopped from denying its obligation to enforce the terms of the Declaration and the View Easement because of its involvement in efforts to mediate between the Alexanders and the Kluevers. "To establish estoppel, a party must show '(1) a representation intended to induce reliance on the part of a person to whom the representation is made; (2) an act or omission by that person in reasonable reliance on the representation; and (3) detriment as a consequence of the act or omission.' Bongaards v. Millen, 440 Mass. 10 , 15, 793 N.E.2d 335 (2003)." Reading Coop. Bank v. Suffolk Constr. Co., 464 Mass. 543 , 556 (2013). The allegations of the Complaint and the exhibits thereto do not support this argument. And, even were the court to consider the materials proffered by Holly Sands on which Ms. Alexander relies for this argument, the argument still fails: there is no allegation that any representative of Holly Sands made any representations with the intent to induce reliance by Ms. Alexander, that Ms. Alexander did anything in reliance of any representation that any representative of Holly Sands might have said, or that any such reliance caused her some detriment.

The Effect of the Fourth Amendment and the Fifth Amendment

Finally, in response to Count III of the Complaint requesting a declaratory judgment as to the validity of the Fourth Amendment and the Fifth Amendment, Holly Sands argues that neither its corporate by-laws nor the Declaration require that 100% of the owners approve amendments to the Declaration, that Massachusetts law does not impose that requirement, and that other jurisdictions allow such amendments by majority vote. For the reasons set forth below, this court disagrees.

All of the Lots have been registered pursuant to G.L. c. 185 and each of the owners, including Ms. Alexander, has received a certificate of title reflecting ownership of his or her respective lot. Pursuant to G.L. c. 185, §46, "[e]very plaintiff receiving a certificate of title in pursuance of a judgment of registration, and every subsequent purchaser of registered land taking a certificate of title for value and in good faith, shall hold the same free of all encumbrances except those noted on the certificate" and seven listed encumbrances, none of which are applicable here. An encumbrance is "[a]ny right to, or interest in, land which may subsist in another to diminution of its value, but consistent with the passing of the fee." Triangle Center, Inc. v. Department of Public Works, 386 Mass. 858 , 866 (1981), quoting Black's Law Dictionary 473 (5th ed. 1979). The Declaration is an encumbrance, and thus must be listed on the parties' certificates of title to be binding on them, as must any amendment to it. See Stop & Shop Supermarket Co. v. Urstadt Biddle Props., 433 Mass. 285 , 291 (2001) ("any amendment to a deed or instrument that changes the duration of a land use restriction must also be recorded to make it fully enforceable during its new duration"), citing Restatement (Third) of Property (Servitudes), § 7.15 ("An unrecorded modification or termination of a recorded servitude is not effective against a subsequent taker of an interest in property burdened or benefitted by the servitude who is otherwise entitled to the protection of the recording act.").

It is plain from this law that the Fourth Amendment and Fifth Amendment, to be effective as amendments to the Declaration, [Note 4] must be registered and noted on the certificates of title of the lots that the amendments purport to affect. No such registration has occurred here. And even if these amendments were offered for registration, they would not be effective to encumber the land of owners who were not parties to them. As noted by the Supreme Judicial Court in Bevilacqua v. Rodriguez, 460 Mass. 762 , 771 (2011), "there is nothing magical in the act of recording an instrument with the registry that invests an otherwise meaningless document with legal effect." Here, to the extent that a majority, but not 100%, of the Lot owners purported to enact amendments to the Declaration affecting 100% of the Lots, the document could not do so for the simple reason that "one may not grant what one does not own." Kitras v. Town of Aquinnah, 64 Mass. App. Ct. 285 , 291 (2005). No one but the owner of a lot can impose new or greater restrictions on it; no one but the holder of a restriction can agree to a lesser restriction on the lots of others.

It is notable that, in conformity with these principles, the Declaration was executed by the then owner of all the Lots (Mr. Duffy, as Trustee of the Trust) and registered, the View Easement was executed by the then owners of all of the Lots and registered, the subsequent modification of the Declaration to adjust the building area of Lot 317 was executed by the then owners of all of the Lots and registered, and the notice of extension of the Declaration, recorded in 2013, was also executed by the then owners of all of the Lots and registered.

Holly Sands cites to the Restatement (Third) of Property (Servitudes), §6.10 for the proposition that common-interest communities as defined therein have the power to amend a declaration by majority vote and cites to Holly Sands' by-law, Art. XI, which allows for amendment of its by-law by majority vote, for the proposition that the amendments are enforceable. There are a number of problems with this argument. That Holly Sands' corporate by-laws, adopted three years after the Declaration was executed and registered, authorize amendment of that by-law by majority vote says nothing about what is required to amend the Declaration. The by-laws are not listed as an encumbrance on the certificate of title for Ms. Alexander's lot, and so she would have taken title without constructive notice of them or this claimed right to amend. In addition, the Reporter's Note to §6.10 states that "[t]he rule that common-interest communities have implied powers to amend the declaration is based on modern statutes, rather than case law." Holly Sands points to no Massachusetts statute granting a right to amend in the circumstances existing here. Compare G.L. c. 183A, §5 (requiring the consent of all condominium unit owners whose percentage interest in the common areas would be materially affected) and §10(m) (requiring that 67% of all unit owners vote to eliminate certain other provisions that are otherwise statutorily required). Finally, the cases that Holly Sands cites to are all distinguishable because, in those cases, the right to amend by majority vote was contained in the declaration or indenture itself or was provided for by statute. [Note 5]

CONCLUSION

For the foregoing reasons, the Motion is ALLOWED IN PART and DENIED IN PART. Judgment will enter at the conclusion of these proceedings on Count I declaring that Holly Sands has the right, but not the obligation, under the terms of the Declaration and the View Easement to enforce the provisions of those documents, except with respect to open spaces, which it is obliged to enforce; and on Count III declaring that the Fourth Amendment and the Fifth Amendment are invalid insofar as they purport to amend the Declaration without the agreement of 100% of the Lot owners. Plaintiff is to file a motion to substitute the proper parties, as described above, within 30 days of the docketing of this memorandum of decision and order. Count II, raising issues of whether the Kluevers have violated the terms of the Declaration and/or the View Easement and whether Ms. Alexander has waived her right to enforce those documents, remains open.