Dover Pool & Racquet Club, Inc. v. Brooking

• Court: United States State Supreme Judicial Court of Massachusetts
• Citation: 322 N.E.2d 168,366 Mass. 629
• Parties: The DOVER POOL & RACQUET CLUB, INC. v. G Edward BROOKING et al. 1
• Decision Date: 13 January 1975

Page 168

322 N.E.2d 168 366 Mass. 629 The DOVER POOL & RACQUET CLUB, INC.
v.
G Edward BROOKING et al. ¹ Supreme Judicial Court of Massachusetts, Norfolk. Argued Dec. 4, 1974.
Decided Jan. 13, 1975.

[366 Mass. 630] James P. Whitters, III, Boston, for defendants.

Ralph C. Copeland, Wellesley (Albert S. Robinson, Boston, with him), for plaintiff.

Before [366 Mass. 629] TAURO, C.J., and REARDON, BRAUCHER, KAPLAN and WILKINS, JJ.

Page 169

[366 Mass. 630] BRAUCHER, Justice.

On January 31, 1972, the parties entered into a written contract for the sale of real estate in Dover and Medfield. A few days earlier, unknown to them, the planning board of Medfield had published a notice of a public hearing on a proposed amendment to the zoning by-law. The proposed amendment would newly require a special permit for the use of the premises contemplated by both the vendor and the purchaser, and under G.L. c. 40A, § 11, the amendment if adopted would have effect retroactive to the date of publication. The purchaser sought rescission of the contract and return of its deposit. A judge of the Superior Court decreed rescission and return because of a mutual mistake of fact, and we affirm.

The case was referred to a master, whose report was confirmed except for its conclusions. We summarize the master's findings. The Brookings owned about fifty acres of land, nine acres in Medfield and the rest in Dover, used as a single family residence. The buildings were in Dover, and the only established access was through the Medfield portion. During negotiations with the purchaser (the Club) the Brookings were informed that the Club intended to use the property for a nonprofit tennis and swim club.

Both the Dover and the Medfield zoning by-laws permitted use of the premises as of right for a 'club when not conducted for profit and not containing more than five sleeping rooms.' The parties discussed the zoning by-law of Dover. The Brookings asked their broker about zoning, and he replied that everything would be all right under the existing Dover and Medfield by-laws. The vice-president of the Club who signed the agreement checked both the Dover and the Medifield zoning by-laws.

The agreement, signed on January 31, 1972, provides for conveyance of 'a good and clear record and marketable title thereto, free from encumbrances, except (a) Provisions [366 Mass. 631] of existing building and zoning laws . . ..' The planning board of Medfield on January 27 and February 3, 1972, published notice of a public hearing on February 14, 1972, on proposed amendments to the Medfield zoning by-law, including a requirement of a special permit for use of the Medfield portion of the premises as a 'non-profit country, hunting, fishing, tennis or golf club without liquor license.' Neither of the parties was aware of the notice, but the Club's board of directors became aware of it about ten days before the agreed closing date of March 1, 1972. The parties met on the closing date, and the Brookings were prepared to deliver a deed, but the Club refused to proceed with the purchase. The proposed zoning amendment was adopted at the Medfield town meeting on March 21, 1972, and approved by the Attorney General in July, 1972.

In general building and zoning laws in existence at the time a land contract is signed are not treated as encumbrances, and the purchaser has no recourse against the vendor by virtue of restrictions imposed by such laws on the use of the property purchased. See Am.Law of Property, § 11.49 (1952); annotation, 39 A.L.R.3d 362, 370 (1971). Moreover, changes in such laws after the contract is signed have commonly been held to be part of the risk assumed by the purchaser. Urbis Realty Co. Inc. v. Globe Realty Co. 235 N.Y. 194, 204, 139 N.E. 238, 241 (1923). DiDonato v. Reliance Standard Life Ins. Co., 433 Pa. 221, 224, 249 A.2d 327 (1969). Kend v. Herbert Fin. Co., 210 Wis. 239, 242, 246 N.W. 311 (1933). See Corbin, Contracts, § 1361 (1962). Cf. Essex-Lincoln Garage, Inc. v. Boston, 342 Mass. 719, 721--722, 175 N.E.2d 466 (1961) (lease). In some such cases, however, specific performance at the suit of the vendor has been denied, particularly where both parties knew of the...