In today’s decision in Berger v. Windcliff LLC (pdf), the Massachusetts Court of Appeals answered an important question regarding extending common scheme property limits beyond the presumptive statutory limit of 30 years. With respect to restrictions imposed as part of a common scheme applying to four or more consecutive lots, the relevant part of Article 184 § 27 of MGL c. It is stated that then it cannot be enforced.
Unless. . . If at the time of the recording of the extension, the owner of more than 50% of the regulated area makes a provision in the document to impose an extension for a period not exceeding 20 years at a time. The subject parcel is discovered and an extension under its terms is recorded before the expiration date of his 30 years or earlier termination date specified in the document. . . .
Burger This has led to disputes between owners of land that is subject to the Common Scheme restrictions imposed in 1980. This restriction limits the lots that can be used for single-family homes, two- or three-car garages, and certain accessory structures. The restrictions are binding “for a period of 30 years from the date these covenants were recorded,” and may be amended or revoked by a written instrument signed by two-thirds or more of the then-current owners of the lots in question. . In 2001, more than two-thirds of landowners amended this restriction, stipulating that it would expire after 30 years as originally provided.[t]from now on, [the restriction] This period may be further extended for not more than 20 years at a time. . . If such extension duly executed by the aforesaid landowner is recorded before the expiry of his aforesaid 20 years or, if less than 20 years, the specified extension period. ” In other words, the proposed amendments aim to allow two-thirds of landowners to each extend an additional period of 20 years (ostensibly without limit) beyond the established 30-year period. It is said that In 2002, more than two-thirds of landowners registered that their restrictions were extended for 20 years.
In 2013, two groups of landowners filed suit against each other. Plaintiffs argued that the 2001 amendments were compliant with the statute and therefore the 2002 extension was valid. Defendants took the position that this restriction expired after 30 years and that the 2001 amendments were invalid. The Land Court ruled in favor of the defendant, and the Court of Appeal affirmed.
The appellate court read the statutory text, “except in the following cases.” . . “The document contains a provision imposing a further extension of time” means that a provision explicitly allowing an extension must appear with original instruments. The court rejected the plaintiff’s argument that the extension clause was then (and still is) “set in writing” because the limitation was amended in 2001 to allow for an extension. The court stated that a post-1980 purchaser of land would be notified not only that the property was restricted, but also that the restriction would expire in his 30 years. The court held that this interpretation of the law “guarantees that the owner will not be bound by the restrictions after 30 years, unless he explicitly consents to a mechanism that allows the restrictions to be extended each time he purchases the land in question.” It pointed out. ” Therefore, the court concluded that extension provisions “cannot be added by a later vote (even a majority vote) with less than 100 percent consent of all property owners in the common scheme.”
in Burger The Court of Appeals answered important lingering questions about MGL. c. 184, § 27. Real estate practitioners are now aware that common scheme restrictions require an extension clause to be included in the original document in order to be extendable beyond 30 years.