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16-P-336                                            Appeals Court

     RALF BERGER & others1 vs. 2 WYNDCLIFF, LLC, & others2
                    (and a companion case3).


                            No. 16-P-336.

         Suffolk.    January 4, 2017. - December 5, 2017.

              Present:   Maldonado, Sacks, & Shin, JJ.


  Real Property, Restrictions, Covenant running with the land.



     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.



     1
       Melissa Berger, Nijan Datar, Teresa Datar, Kevin Donohoe,
Frank Foley, Mary Ann Foley, Mary Haller, Kathryn Lagunowich,
Mark Lagunowich, Amaro Laria, and Katharine Larsson.
     2
       Robert H. Batts, Jr., trustee of the Robert H. Batts, Jr.,
family trust; Lexington Holdings, LLC; and water supply district
of Acton.
     3
       Robert H. Batts, Jr., trustee of the Robert H. Batts, Jr.,
family trust, & another vs. Ralf Berger & others.
                                                                       2


    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
                                                                  3


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.




     4
       The owners also added a provision prohibiting further
subdivision of any lot in any manner.
                                                                        4


    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.

    Discussion.   Restrictions on land are generally disfavored,

and the Legislature has established procedures through G. L.

c. 184, §§ 26-30, "by which a landowner may 'remove or prevent

the enforcement of obsolete, uncertain or unenforceable
                                                                      5


restrictions.'"   Stop & Shop Supermkt. Co. v. Urstadt Biddle

Properties, Inc., 433 Mass. 285, 290 (2001) (Stop & Shop),

quoting from Labounty v. Vickers, 352 Mass 337, 348 (1967).      At

the same time, the Legislature has not precluded landowners from

"bargaining for, and enforcing, beneficial land use restrictions

that contain a lengthy, but definite term of duration."     Stop &

Shop, supra.   "There is no superseding public policy between the

somewhat differing general principles that, on the one hand,

disfavor land use restrictions, and, on the other hand, uphold

contractually bargained for restrictions that permit landowners

to use their land in certain ways."    Id. at 292.

     One method the Legislature has employed to address these

competing interests is to limit enforcement of restrictions to

thirty years generally and, while freely allowing longer

durations, requiring landowners to comply with certain specific

steps should they desire to impose restrictions lasting more

than thirty years.   Id. at 290.   Thus, since 1887, where land

use restrictions contained no durational limit, Massachusetts

law has imposed a thirty-year time limitation on them.     See

G. L. c. 184, § 23; Stop & Shop, supra at 288; Jones v. Murphy,

60 Mass. App. Ct. 1, 3 (2003).5


     5
       In addition to durational limitations, the Legislature has
enacted G. L. c. 184, § 30, inserted by St. 1961, c. 448, § 1,
through which landowners may prevent enforcement of restrictions
that are not of "actual and substantial benefit" to a person
                                                                  6


    Even restrictions that contain an express durational

limitation in excess of thirty years may not be enforced for

more than thirty years unless certain steps are taken.   It is

undisputed that the restrictions at issue were imposed as part

of a common scheme.   General Laws c. 184, § 27, distinguishing

restrictions imposed as part of a common scheme from those that

are not, provides in pertinent part:

    "No restriction imposed after December [31, 1961,] shall be
    enforceable . . . (b) after thirty years from the
    imposition of the restriction, unless (1) the restriction
    is imposed as part of a common scheme applicable to four or
    more parcels . . . and provision is made in the instrument
    or instruments imposing it for extension for further
    periods of not more than twenty years at a time by owners
    of record, at the time of recording of the extension, of
    fifty per cent or more of the restricted area in which the
    subject parcel is located, and an extension in accordance
    with such provision is recorded before the expiration of
    the thirty years or earlier date of termination specified
    in the instrument . . . ."

Ibid., inserted by St. 1961, c. 448, § 1.

    The neighbors contend that by the fourth amendment, they

brought the agreement into compliance with § 27(b)(1) and that


claiming rights of enforcement. Section 30 contains a
presumption that restrictions in certain circumstances are not
of substantial benefit, but that presumption does not apply to
common scheme restrictions. See St. 1979, c. 307. The statute
does provide criteria for determining whether common scheme
restrictions remain enforceable, however, including, among
others, whether continuation of the restriction would "impede
reasonable use of land for purposes for which it is most
suitable, and would tend to impair the growth of the
neighborhood or municipality in a manner inconsistent with the
public interest or to contribute to deterioration of properties
or to result in decadent or substandard areas or blighted open
areas."
                                                                      7


they extended the restrictions by filing an extension before the

expiration date contained in the original agreement and the

fourth amendment.     The judge assumed, without deciding, that the

neighbors could amend the agreement, which originally did not

provide for extensions, to allow extensions, and went on to

analyze the effectiveness of the fourth amendment.    Because we

conclude that pursuant to the terms of the statute, in order to

impose a restriction for more than thirty years, the instrument

originally creating the restriction had to include a provision

for extensions, we need not reach the issue of the effectiveness

of the fourth amendment.

    "The statute is to be construed as written, in keeping with

its plain meaning," giving "some effect to each word."     Stop &

Shop, supra at 289.    The statute expressly specifies that the

provision for extensions must be contained in the original

instrument that created the restriction.     Where extension

provisions are not contained in the original instrument, the

statutory scheme does not allow subsequent amendments to add new

provisions for extensions.     Here, the original 1980 document

imposing the restrictions set a thirty-year time limit for the

restrictions and allowed for amendments during that term by a

vote of two-thirds of the owners.     Everyone in possession or

coming into possession of one of the lots subject to the

agreement after 1980 would be on notice that their property was
                                                                    8


subject to the control of a vote of two-thirds of the other

common-scheme property owners.    However, they also took

possession with the understanding that this control over their

property by a vote of two-thirds of the other property owners

would end in thirty years.    In contrast, the amendment at issue

here, if valid, would allow a group of two-thirds of the

property owners (if they also owned fifty percent of the other

common-scheme land) to potentially extend the restrictions

indefinitely by successive twenty-year increments; that is not

what owners agreed to when they bought common-scheme property.

Section 27(b), by limiting the enforceability of a common-scheme

restriction after thirty years only where "provision is made in

the instrument or instruments imposing it for extension for

further periods of not more than twenty years at a time,"

ensures that, after thirty years, no owner is bound by a

restriction unless that owner, whenever he or she bought the lot

in question, expressly agreed to the mechanism by which the

restrictions could be extended.    Accordingly, the mechanism for

the extension of the restrictive covenants must explicitly be in

the original document, and cannot be added by a later vote (even

a majority vote) of less than the agreement of one hundred

percent of all property owners in the common scheme.

"[E]xtension is possible only if the creating instrument

provides for it . . . ."     Mendler, Massachusetts Conveyancers'
                                                                     9


Handbook § 15:14, at 378 (4th ed. 2008).     Because the amendment

to add a provision for restrictions is unenforceable, we

conclude that the restrictions at issue terminated on March 26,

2010, as provided in the original agreement.

     Our conclusion is buttressed by review of the various

statutory provisions applicable to restrictions.    The statutory

scheme was enacted on May 10, 1961.    St. 1961, c. 448, § 1.

Section 28 applies to restrictions imposed before January 1,

1962, and does not include the requirement that a provision for

extension be made in the instrument or instruments imposing the

restriction.6   However, § 27, which applies to restrictions

imposed after January 1, 1962, does provide that extension be

made in the instrument or instruments imposing the restriction,

putting drafters of restrictions on notice of the necessity to

include a provision for extensions when drafting restrictions

effective after January 1, 1962.   Accordingly, when the

restrictions at issue were created in 1980, the requirement that

a provision for extension must be included in the original

instrument should have been clear.

                                      Judgment affirmed.




     6
       It would have been impossible to do so retroactively, as
those documents had already been drafted and executed.
