Brear v. Fagan

• Citation: 849 N.E.2d 211,447 Mass. 68
• Parties: Joseph A. BREAR, Jr., trustee,<SMALL><SUP>1</SUP></SMALL> v. Edward P. FAGAN & another.<SMALL><SUP>2</SUP></SMALL>
• Decision Date: 19 June 2006
• Court: United States State Supreme Judicial Court of Massachusetts

849 N.E.2d 211

447 Mass. 68

Joseph A. BREAR, Jr., trustee,¹ v. Edward P. FAGAN & another.²

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 5, 2006.

Decided June 19, 2006.

Donald K. Freyleue, Ipswich, for the plaintiff.

Michael P. McCarron, Danvers, for the defendants.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

SOSMAN, J.

In this appeal, we are asked to decide whether the common-law rule, which allowed the identity of those benefited by restrictions on land to be inferred from all the circumstances (see Baker v. Seneca, 329 Mass. 736, 739, 110 N.E.2d 325 [1953]; Snow v. Van Dam, 291 Mass. 477, 481, 291 Mass. 477 [1935]), retains vitality in the wake of G.L. c. 184, § 27 (a), which provides that the identity of persons or lands benefited by such a restriction must be "stated" in the instrument imposing the restriction. We also consider whether a restriction of a specified duration can be extended beyond its stated term by filing a notice of restriction pursuant to G.L. c. 184, § 27 (b) (2). For the following reasons, we conclude that § 27 (a) requires that the instrument contain an express identification of those persons or lands benefited by a restriction, thus supplanting the common-law rule, and that the stated period of a restriction may not be extended by way of a notice of restriction under § 27 (b) (2). We therefore affirm a judgment in favor of the defendants, as the plaintiff's land was not expressly identified as land to be benefited by the restrictions imposed on the defendants' land, and the restrictions had expired by their own terms, notwithstanding the recording of a notice of restriction seeking to extend them.

1. Background. Joseph A. Brear, Jr., as trustee of the Buttonwood Nominee Trust (Buttonwood Trust), brought the present action against Edward and Anna Fagan, claiming that the Fagans' planned subdivision and development of their land violated various restrictions imposed by the deeds to the Fagans' predecessors in title. The matter was tried before a judge in the Land Court, whose findings of fact are summarized as follows.³

In 1972, the trustees of the Alice H. Burrage Trust (Burrage Trust) owned a tract of land in Ipswich containing in excess of one hundred acres. On September 19, 1972, the Burrage Trust recorded a plan dividing the northerly forty acres of the land into four parcels, and conveyed the northernmost parcel (parcel 4) to Bertha L. Nikas and the adjoining parcel (parcel 3) to George A. Nikas. The deeds to the Nikases contained detailed restrictions concerning the uses of the land conveyed and the structures that could be built thereon. The deeds stated that the restrictive covenants were to run with the land and be binding for a period of thirty years from the date of recording. On November 30, 1972, the Burrage Trust conveyed yet another parcel (parcel 2) to George A. Nikas, with identical restrictions and an identical thirty-year period set forth in the deed. The final parcel (parcel 1) was conveyed to a third party.

The Burrage Trust retained the remaining sixty acres (homestead parcel) until January 4, 1978, when the homestead parcel was conveyed to the Buttonwood Trust. The deed to the Buttonwood Trust stated that the property was conveyed "together with the benefit of restrictions contained in prior deeds of record of the [Burrage Trust]." In accordance with the terms of the Buttonwood Trust, one of the beneficiaries resides on the homestead parcel and uses part of the land (along with other land owned by the Buttonwood Trust) for agricultural purposes.

By way of a series of conveyances, Edward and Anna Fagan acquired portions of parcels 2, 3, and 4 in March and December of 1979. The deeds to the Fagans each recited that the premises were conveyed subject to and with the benefit of restrictions previously recorded, to the extent that those restrictions were "in force and applicable." The Fagans ultimately decided to subdivide their land, planning to keep one lot as their own residence and to develop the remaining six lots in the subdivision. After initially disapproving the Fagans' subdivision in May, 2003, the planning board of Ipswich ultimately voted to approve the subdivision, filing the approval decision on December 12, 2003.

Meanwhile, apparently in response to the Fagans' plans, the plaintiff filed the present action on March 5, 2002, seeking a declaration that the deed restrictions on the Fagans' property were valid and enforceable and that they would limit the number of structures that could be built on that property. On June 6, 2002, the plaintiff recorded three instruments, each of which recited that "[t]his instrument is a NOTICE OF EXTENSION OF RESTRICTIONS pursuant to Massachusetts General Laws, Chapter 184, Sections 27-29." The notices, all signed by the plaintiff as trustee of the Buttonwood Trust, described the homestead parcel as the land benefited by the restrictions, described the Fagans' portions of parcels 2, 3, and 4 as the lands subject to the restrictions, identified the Fagans as the current owners of those lands, and specified the deeds imposing the restrictions along with the recording information for those deeds.⁴

Based on these facts, the judge concluded that the recording of the notices of restriction pursuant to G.L. c. 184, § 27 (b) (2), within thirty years of the date that the restrictions had first been imposed by the deeds from the Burrage Trust, operated to extend those restrictions. However, where the deeds creating the restrictions contained no express identification of any person or land benefited by the restrictions, G.L. c. 184, § 27 (a), precluded the Buttonwood Trust from enforcing the restrictions. The plaintiff appealed, and we granted his application for direct appellate review.

2. Discussion. a. Identification of persons and lands benefited by restrictions on land. At common law, if a deed or other instrument imposing a restriction on land was silent or ambiguous with respect to what other land was to be benefited by the restriction, the identity of the benefited lands could be determined by resort to inference from "the situation of the property and the surrounding circumstances." Peck v. Conway, 119 Mass. 546, 549, 1876 WL 10685 (1876). See Baker v. Seneca, 329 Mass. 736, 739, 110 N.E.2d 325 (1953); Lovell v. Columbian Nat'l Life Ins. Co., 294 Mass. 473, 477-478, 2 N.E.2d 545 (1936); Snow v. Van Dam, 291 Mass. 477, 481, 197 N.E. 224 (1935); Sprague v. Kimball, 213 Mass. 380, 382, 100 N.E. 622 (1913); Welch v. Austin, 187 Mass. 256, 259-260, 72 N.E. 972 (1905); Hano v. Bigelow, 155 Mass. 341, 343, 29 N.E. 628 (1892); Hogan v. Barry, 143 Mass. 538, 539, 10 N.E. 253 (1887). A plaintiff seeking to enforce such a restriction had the burden to show that the benefit of that restriction was appurtenant to his land; if, after analysis of the terms of the instrument and the surrounding circumstances, there remained ambiguity on the point, that ambiguity was to be resolved in favor of freeing the land from restriction. Lovell v. Columbian Nat'l Life Ins. Co., supra at 477, 2 N.E.2d 545. St. Botolph Club, Inc. v. Brookline Trust Co., 292 Mass. 430, 433, 198 N.E. 903 (1935). The plaintiff claims that where the Burrage Trust retained land (i.e., the homestead parcel) in the immediate vicinity of the northern parcels that were conveyed subject to the restrictions, and indicated in the deed to the Buttonwood Trust that the homestead parcel was benefited by the restrictions imposed in prior deeds of the Burrage Trust, the judge should have inferred that the Burrage Trust intended the homestead parcel to be benefited by the restrictions imposed on parcels 2, 3, and 4. See Baker v. Seneca, supra (inferring that restriction was imposed for benefit of grantor's other land); Welch v. Austin, supra; Peck v. Conway, supra.

Assuming (without deciding) that the suggested inference is sound, the plaintiff's ability to enforce the restrictions still depends on G.L. c. 184, § 27, which provides in relevant part as follows: "No restriction imposed after [December 31, 1961,] shall be enforceable:—(a) unless the person seeking enforcement (1) is a party to the instrument imposing the restriction and it is stated to be for his benefit or is entitled to such benefit as a successor to such party, or (2) is an owner of an interest in benefited land which either adjoins the subject parcel at the time enforcement is sought or is described in the instrument imposing the restriction and is stated therein to be benefited . . . ."

When interpreting this language, we recognize that we should not interpret a statute "as effecting a material change in or a repeal of the common law unless the intent to do so is clearly expressed." Pineo v. White, 320 Mass. 487, 491, 70 N.E.2d 294 (1946). See Commercial Wharf E. Condominium Ass'n v. Waterfront Parking Corp., 407 Mass. 123, 129, 552 N.E.2d 66 (1990), S.C., 412 Mass. 309, 588 N.E.2d 675 (1992) (court does not presume that Legislature intended "a radical change in the common law without a clear expression of such intent"). Here, we are satisfied that the Legislature's intent to modify the common law has been expressed with the requisite clarity by both the language of § 27 (a) and the legislative history of that provision.

Turning first to the language, the plaintiff argues that the statutory requirement that the identity of the restriction's beneficiaries be "stated" in the instrument may be satisfied by an "implied" statement in that instrument, thereby harmonizing § 27 (a) with the common law. The plaintiff thus contends that § 27 (a) was not intended to supplant the common-law rule, at least with regard to such ostensibly obvious beneficiaries as the original grantor, the grantor's retained land, and the grantor's successors in title to that land. We disagree.

Even with regard to an original "party" to the instrument imposing the restriction ...