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Old Restrictions (Memo 2)

Restrictions and Reverters

Restriction unlimited in time expire in thirty years, period. See G.L.c. 184, §23. Such restrictions cannot be kept alive: they could not be extended (although they could be independently reimposed). Restrictions limited in time (for example, those which provide that they will continue for 100 years) will expire (i) fifty years after their imposition if imposed before January 1, 1962 and (ii) thirty years after their imposition if imposed after December 31, 1961. Unlike restrictions unlimited in time, restrictions that are limited in time can be extended (up to their outside date). provided in either case that the restrictions are not brought forward. See G.L.c. 184, §§27, 28.

Can a restriction that has a stated date for expiration (one that is limited in time, and therefore subject to being extended) be converted to one unlimited in time and, if so, what is the result? That question was answered in The Stop & Shop Supermarket Company v. Urstadt Biddle Properties, Inc. , 433 Mass. 285, 740 N.E.2d 1286 (2001) where the relationship between restrictions imposed under G.L.c. 184, §23 (those unlimited in time) and those imposed under the other statutes referenced above was explored. In that case in 1970 abutting landowners agreed to the imposition of restrictions on land then owned by a predecessor of Stop & Shop. The restrictions were stated in the instrument to be enforceable for fifty years. In 1983 the two landowners agreed to an amendment to the restrictions, including the deletion of the fifty-year limitation on the restriction. In 1996 Stop & Shop purchased the property. Soon thereafter the abutting owner brought an action against Stop & Shop to enforce the restrictions and in 1998 the abutting owner recorded a "notice of restriction," purportedly extending the restrictions for twenty years under G.L.c. 184, §27 (which governs restrictions imposed after December 31, 1961).

All parties agreed that the 1983 amendment rendered the restrictions as being unlimited as to time. The disagreement among the parties revolved around (I) whether the restrictions, though unlimited as to time, could nonetheless be extended under the 1998 "notice of restriction," and (ii) if the restrictions unlimited in time could not be extended, when would their thirty-year life expire under G.L.c. 184, §23. The abutter argued that nothing in G.L.c. 184, §27 prevented a "notice of restriction" from extending a restriction which at the time was governed by G.L.c. 184, §23. The court said:

While [the abutter's] assertion may be true as a technical matter, §27, by its express terms, requires, in order to extend the period of enforceability, that a notice of restriction be recorded "before the expiration of the thirty years [from the imposition of the restriction]." This statutory language indicates that restrictions for less than thirty years do not come within the scope of §27, and thus, cannot be extended under the statute. Section 27 is to be read, to the extent possible, harmoniously with §23. [Citation omitted.] If, as [the abutter] contends, a restriction unlimited as to time merely needed the recording of periodic notices under §27(b) to remain in force, then §23 itself would be superfluous, as §27(b) would extinguish any restriction as to which the proper notice had not been recorded. Rather, §23 sets a "term" of thirty years in the absence of any stated time frame in the parties' underlying agreement, and nothing in §27(b) allows for any extension of that term.

The effectiveness, or lack thereof, of the abutter's extension notice was thereby settled.

The question remained in the case as to whether the thirty-year period of the restriction, once rendered unlimited in time by reason of the amendment, ran from the original date of the instrument containing the restriction (1970) or from the time of the amendment (1983). Of course, Stop & Shop argued the former position, while the abutter maintained the latter. In this regard, the court stated:

We next turn to the date on which the restriction began to run. Section 23 provides that "restrictions unlimited as to time . . . shall be limited to a term of thirty years after the date of the deed or other instrument . . . creating them." Stop & Shop contends that the word "creating" in §23, commences the thirty-year limitation period. Stop & Shop maintains that it is the date of the instrument that originally created the restriction from which the limitation period runs [1970]. Stop & Shop's argument ignores relevant, and reasonably clear, language in the statute, namely, the words "unlimited as to time," that follow and qualify the term "restrictions." * * * The language of §23 informs us that the date from which its thirty-year limitation period begins to run is the date on which the restriction became or becomes unlimited as to time [1983].

The court interpreted the words "creating them" to modify the term "restrictions unlimited as to time," and concluded that the original restriction instrument did not "create" the unlimited restrictions (inasmuch as originally they had a term of fifty years) and that it was the amendment that "created" the restrictions unlimited as to time.

Incidentally, restrictions which are alive and well cannot be enforced as to certain violations thereof if the violations have persisted for more than six years. See G.L.c. 184, §23A.