By Robert Nislick
You are a Massachusetts landowner, possibly a homeowner in a residential subdivision. When the developer planned your community, it may have for example, sought to impose a set of building restrictions or restrictive covenants, for the stated purpose of protecting the value, attractiveness and pleasant living quality of the lots within the subdivision.
In particular during the building and marketing phase of the community, the real estate developer may have considered it important to maintain a degree of control over how homebuyers in the neighborhood could use or make changes to their property.
Let’s say you have purchased a home in such a subdivision. Your deed will state the names of the seller and buyer, the consideration paid, and contain a description of the property. Your deed may also contain language that states that the premises are conveyed subject to a certain declaration of building restrictions. If so, your deed should also provide a reference to the book and page where the document imposing the restrictions is recorded in the registry of deeds.
Anyone who is contemplating buying land subject to a set of restrictions or covenants or easements should review those instruments carefully and also seek the advice of a competent attorney, in order to fully understand what limitations, if any, have been imposed on the use of the property.
Once you own your property, at some point, you may find that a neighbor is doing something on his land that may be in violation of a restriction. You want to compel this neighbor to stop. Or perhaps, someone is accusing you of doing something on your land that may be in violation of the restrictions, and you need to defend against such a claim and ensure your ability to use your property as you see fit.
A restriction on the use of land is a right to compel the person entitled to possession of the land not to use it in specified ways. Labounty v. Vickers, 352 Mass. 337, 347 (1967). Restrictions on land are disfavored and doubts concerning the rights of use of an easement are to be resolved in favor of freedom of land from servitude. Martin v. Simmons Props., LLC, 467 Mass. 1, 9 (2014). Restrictions in a deed are to be strictly construed against the party seeking to enforce those restrictions. Walker v. Gross, 362 Mass. 703, 706 (1972).
Massachusetts cases interpreting the restrictions statutes, G. L. c. 184, §§ 26-30, make it difficult to enforce land use restrictions. Accordingly, great care must be taken to draft them correctly. Under certain circumstances, courts will even refuse to enforce a land use restriction due to lack of precision in drafting, even if the parties’ intent is otherwise clear.
Land use restrictions are distinguishable in part from condominium master deed restrictions, the latter of which are generally construed more liberally in favor of the party seeking enforcement. However, in a recent case, Boston Redevelopment Auth. v. Pham, 88 Mass. App. Ct. 713 (2015), the Appeals Court ruled that a condominium unit owner did not violate an affordable housing restriction which required him to maintain the unit as his principal residence, and which prohibited him from leasing his unit for business or investment purposes, even though he traveled extensively for work, and even though he had brought in a succession of roommates to defray the costs of the unit. The Court applied the rule that where a person’s right to use his or her own property is involved, any ambiguity in an asserted restriction should be construed in favor of the freedom of the property from that restriction. See Johnson v. Keith, 368 Mass. 316, 320 (1975).
If you are involved in a dispute concerning a land use restriction or a condominium restriction, contact Robert Nislick, a Massachusetts real estate lawyer, and former law clerk at the Land Court, to discuss your rights and remedies. For more information, contact him at (508) 405-1238, or by e-mail.