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Berger v. 2 Wyndcliff, LLC

Appeals Court of Massachusetts, Suffolk

December 5, 2017

RALF BERGER & others[1]
v.
2 WYNDCLIFF, LLC, & others[2] (and a companion case[3]).

          Heard: January 4, 2017.

         Civil actions commenced in the Land Court Department on November 1, 2013.

         The cases were heard by Robert B. Foster, J., on motions for summary judgment.

          Ellen Rappaport Tanowitz for Ralf Berger & others.

          Mark Bobrowski for 2 Wyndcliff, LLC, & others.

          Present: Maldonado, Sacks, & Shin, JJ.

          MALDONADO, J.

         In this 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.

         Background.

         On 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.

         The 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."

         More 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."[4] On July 18, 2002, an extension of the agreement was duly recorded.

         A group 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.

         D ...


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