Posts tagged "1115017"

Berger, et al. v. 2 Wyndcliff, LLC, et al. (and a companion case) (Lawyers Weekly No. 11-150-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030;   16-P-336                                        Appeals Court   RALF BERGER & others[1]  vs.  2 WYNDCLIFF, LLC, & others[2] (and a companion case[3]).     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.     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 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 […]


Posted by Massachusetts Legal Resources - December 5, 2017 at 7:25 pm

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