Heard: January 4, 2017.
actions commenced in the Land Court Department on November 1,
cases were heard by Robert B. Foster, J., on motions for
Rappaport Tanowitz for Ralf Berger & others.
Bobrowski for 2 Wyndcliff, LLC, & others.
Present: Maldonado, Sacks, & Shin, JJ.
case, we consider whether certain restrictions on land were
legally and effectively amended to extend the time period of
their enforcement or whether they had expired. The judge
concluded the restrictions had expired. For reasons different
from those relied on by the judge, we affirm the judgment.
March 26, 1980, in the course of developing land she owned in
Acton, Mabel Jenks McNiff executed an agreement of
"protective covenants and easements" for the
benefit of "future mortgagees, buyers, and owners of the
land." The agreement was recorded, apparently on the
same date. McNiff thereafter sold off lots with the benefits
and burdens of the agreement. The parties are all owners of
lots subject to the agreement.
agreement expressly provided that the covenants are to
"run with the land" and bind the parties claiming
under them "for a period of thirty (30) years from the
date these covenants are recorded." The covenants
limited construction on each lot to one single-family
dwelling, with a two- or three-car garage, and "such
other accessory structures as are commonly used as
appurtenant to a single family dwelling." The agreement
provided that the covenants "may be amended or revoked,
in whole or in part, by an instrument signed by two thirds or
more of the then owners of the lots covered hereby, said
amendment or revocation to be effective upon recording
thereof at the . . . Registry of Deeds."
than two-thirds of the owners of the lots affected by the
agreement amended the agreement in minor ways over the years,
largely to alter the percentage of costs owners were required
to contribute to maintain the roads. On December 7, 2001,
more than two thirds of the owners of the affected lots
amended it for a fourth time to provide that the covenants
are to "run with the land and be binding on all of the
Lots until March 26, 2010, " i.e., thirty years from the
date the original agreement was recorded. The amendment then
provides, "Thereafter, these Protective Covenants and
Easements may be extended for further periods of not more
than twenty (20) years at a time by owners of record, at the
time of recording of the extension, of two-thirds (2/3) or
more of the Lots and also comprising fifty percent ... or
more of the land area of all of the Lots, if such extension,
duly executed by the aforesaid Lot owners, is recorded before
the expiration of the aforesaid twenty (20) years or the
specified extension term if less than twenty (20)
years." On July 18, 2002, an extension of
the agreement was duly recorded.
of neighbors commenced an action seeking to enforce the
restrictions against 2 Wyndcliff, LLC, and the trustee of the
Robert H. Batts, Jr., family trust. The latter two entities
commenced their own action seeking a declaration that the
restrictions expired on March 26, 2010. The separate cases
have been treated as companion cases; we refer to the parties
using the same nomenclature the Land Court judge used: the
parties seeking to enforce the restrictions are designated
"the neighbors, " and the parties asserting the
restrictions have expired are "the owners." The
parties filed cross motions for summary judgment, and the
judge granted the owners' motion. The judge reasoned
that, even assuming that two-thirds of the neighbors could
amend the agreement to provide for extensions of the period
of enforcement, the mechanism the neighbors chose failed to
achieve its desired purpose. He concluded that the amendment
in effect transformed the agreement to one "unlimited in
time" and that, because under G. L. c. 184, § 23,
restrictions unlimited in time expire after thirty years and
cannot be "renewed, " the agreement terminated on
March 26, 2010. The neighbors appeal.