DAVID J. APFEL and LISA RECHTSHCHAFFEN, in their capacity as trustees of the PENNY-APFEL-RECHTSCHAFFEN NOMINEE TRUST v. WAYNE A. MILLER, Intervening Defendant.

In this action, Plaintiffs challenged the status of a lot of registered land that is located within the BoldWater residential subdivision in Edgartown (Locus). Plaintiffs commenced this action by filing a four-count Verified Complaint on June 4, 2009, seeking declaratory relief under G. L. c. 231A. On June 25, 2009, Wayne A. Miller (Intervening Defendant) filed an Emergency Motion to Intervene. The motion was granted and Dr. Miller subsequently filed an Answer. [Note 1]

The case came before the court on Defendant Miller’s second Motion for Summary Judgment filed on March 31, 2011, on all counts in Plaintiff’s Verified Complaint and Plaintiffs’ Cross-Motion for Partial Summary Judgment on Count II, filed on May 4, 2011. A hearing on the parties’ cross-motions was held on May 24, 2011, at which all parties were heard. A decision of today’s date has issued, denying Plaintiff’s motion and granting Defendants’ Motion, in part. In accordance with the decision, it is hereby

ADJUDGED and DECLARED that as of the date on which this case was commenced, the “Declaration of Protective Covenants for BoldWater Incorporated, Edgartown, Massachusetts Covenants, Reservations, Restrictions and Easements” dated as of July 31, 1985, registered with the Dukes County Registry District of the Land Court as Doc. No. 19221 (’85 Covenants) were no longer in effect or enforceable; it is further

ADJUDGED and DECLARED that as of the date on which this case was commenced, the “Amended, Restated and Extended Declaration of Protective Covenants for BoldWater Incorporated, Edgartown, Massachusetts Covenants, Reservations, Restrictions and Easements dated as of August 23, 2003, registered as Doc. No. 00063790 (‘05 Covenants) were enforceable; it is further

ADJUDGED and DECLARED that Plaintiffs cannot challenge the creation of Locus (Lot 7 of the BoldWater subdivision) as violative of the ’85 Covenants which are no longer in force and effect and were no longer in effect when Plaintiffs purchased their property; it is further

ADJUDGED and DECLARED that whether or not Locus was created in violation of the expired ’ 85 Covenants, and whether or not Locus was a buildable lot as of the date of the mortgages granted by Thomas C. Wallace, to Clifford Meehan and Defendant Miller, does not render the mortgages invalid as a matter of registered title to Locus; it is further

ADJUDGED and DECLARED in view of the expiration of the ’85 Covenants and the adoption of the ’05 Covenants, Locus is not unbuildable due to its non-compliance with the ’85 Covenants, provided that it is otherwise in compliance with the ’05 Covenants, the ’10 Amendments, and applicable pertinent local laws and regulations and Commonwealth statutes; it is further

ADJUDGED and ORDERED that, provided no appeal from this Judgment has been taken, a certified copy of this Judgment may be registered with the Dukes County Registry District of the Land Court and noted on the certificate of title to Locus, Transfer Certificate of Title No. 12750.