Massachusetts Agencies

Enforcement of Restriction (Part II of II)

Articles from The Massachusetts Focus

Newsletter of Stewart Title Guaranty Company, Massachusetts Offices
Winter 2003, Volume 2, Number 1

Enforcement of Restrictions
(Part II of II)

by Gary F. Casaly, Special Counsel

[This article is a continuation of the article "Enforcement of Restrictions (Part I of II)" in Vol. 1, No. 3 of The Massachusetts Focus.]

Restrictions which are "unlimited as to time" expire in thirty years and cannot be extended. G.L.c. 184, §23. (I'm sure some readers will wonder whether the result here is that after thirty years there will be chaos among condominiums whose restrictions would seem to expire then. But do not panic. Johnson v. Keith, 368 Mass. 316, 331 N.E.2d 879 (1975) tells us that the statute does not apply to condominiums.)

Restrictions that are not "unlimited as to time" can, in certain instances, be extended, up to the maximum time permitted under the instrument imposing them. But, if not brought forward, these restrictions will be limited to thirty years or fifty years. G.L.c. 184, §§27, 28, 29. What do these statutes provide as far as keeping restrictions alive? G.L.c. 184, §27, which applies to restrictions imposed on or after December 31, 1961, limits restrictions to a thirty year period, defines who the persons enforcing the restriction must be - essentially (I) parties named as a benefited parties or (ii) a parties who own benefited land adjoining the subject parcel or stated to be benefited land - and to what land the extended restriction will apply. That's pretty straight forward.

As to restrictions governed by this statute, who are the persons who must bring the restriction forward? If the restrictions apply to four or more contiguous parcels (a common scheme) then paragraph (b)(1) of G.L.c. 184, §27 provides that "provision [may be] made in the instrument or instruments imposing [the restriction] for extension for further periods . . . [and that] owners . . . of fifty percent or more of the restricted area . . . [may execute] an extension in accordance with such provision," thereby extending the restrictions. Note a few important points here: (A) The restriction itself must contain a provision for the extension of the restrictions - it can't simply provide that the restrictions will endure for a set period of time. (B) Paragraph (b)(1) refers to an "extension," not, like paragraph (b)(2), discussed below, to a "notice of restriction." This distinction in verbiage will become important, as you'll see. (C) It is fifty percent of the owners of the restricted area (not simply fifty percent of the lot owners) who can decide to keep the restrictions alive with respect to the entire restricted area - sort of a "majority rule" concept. In other words, paragraph (b)(1) provides for the parties to make up their own rules as to the continuance of restrictions. If the restrictions in any particular case don't comply with these requirements, then they would be governed by paragraph (b)(2).

Paragraph (b)(2) of G.L.c. 184, §27 refers to a "notice of restriction," a word (or phrase) of art. If there's no common scheme or, even if there is one and there's no compliance with the requirements of paragraph (b)(1) as to what the restriction document must contain, then the "default" as to the continuance of restrictions revolves around complying with the provisions concerning this "notice of restriction." When it comes to this "default" mode, we look to G.L.c. 184, §29. This statute has two basic functions: (I) it tells us where we must record either a notice of a restriction (paragraph (b)(2) of G.L.c. 184, §27) or an extension of a restriction (paragraph (b)(1) of G.L.c. 184, §27) and (ii) it tells us that "notices" under G.L.c. 184, §27 may (A) apply to "any number of parcels subject to the restriction"and (B) may be enforced only by the persons who have executed the notice. (Note that under the "common scheme" provisions of paragraph (b)(1) of G.L.c. 184, §27 it's an all-or-nothing proposition - all land is brought under the continued restrictions and all persons in the common scheme can enforce them.)

The provisions of G.L.c. 184, §28, which governs restrictions imposed before January 1, 1962, initially limit restrictions to fifty years and contain basically similar provisions as those in G.L.c. 184, §27 (although there are some differences, most notably the provision that permits a mortgagee to execute an extension).

So, as to the persons who can extend restrictions, if a common scheme is involved - and if the instrument creating the restrictions makes provision for their extension - then an extension signed by owners of fifty percent of the restricted area can extend the restrictions as to the entire area comprising the common scheme. On the other hand, if there is no common scheme to which the restrictions apply - either because there's no common scheme as defined in the statute (four or more contiguous parcels) or because the instrument creating the restrictions does not contain the extension provisions called for or necessary under the statute - then there must be compliance with the "notice of restrictions" provisions of G.L.c. 184, §29, in which case the restrictions will be continued only as to the parcels identified in, and only for the benefit of those signing the notice, provided that the notice is recorded in a timely fashion. As noted above, in any case G.L.c. 184, §29 defines where a notice of restriction or an extension must be recorded.

As noted, restrictions imposed after December 31, 1961 have, initially, a life of thirty years (unless properly extended) while restrictions imposed before January 1, 1962 have, initially, a life of fifty years (unless properly extended). The first extension or notice of restriction must, with respect to the former, be filed within the thirty-year period and, with respect to the latter, within the fifty year period and, in either case, thereafter refiled each twenty years. The refilings, however, cannot extend the restrictions beyond the stated term in the instrument.

In The Stop & Shop Supermarket Company v. Urstadt Biddle Properties, Inc., 433 Mass. 285, 740 N.E.2d 1286 (2001) the question as to 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.

A companion statute to those discussed above and which limits the enforcement of restrictions should be kept in mind. It is G.L.c. 184, §23A. That statute provides that in the event that certain private restrictions have been violated and the violation has existed for more that six years, the restrictions cannot be enforced with respect to the particular offending structure. This does not mean that the restriction is "dead," but rather that its enforcement will be prevented with respect to the particular structure that is in violation of it. If the thirty- or fifty-year period (or longer, if extended) has not expired, the restrictions can still be enforced as to future violations regarding other structures.