433 Mass. 285 | Mass. | 2001
We transferred this case to this court on our own motion to decide the expiration date of a land use restriction prohibiting the plaintiff, The Stop & Shop Supermarket Company (Stop & Shop), from operating a supermarket or a discount store on its property (premises) that abuts land owned
The background of the case is as follows. In 1970, the trustees of the Springfield Mall Trust owned the premises, part of a larger parcel consisting of approximately thirty-five acres of land. On February 13,1970, the trustees, and Urstadt’s predecessor in title, Hubbard Real Estate Investments (HREI), entered into a duly recorded agreement (1970 agreement) that imposed various restrictions on the premises and HREI’s abutting property, including a commercial restriction prohibiting use of the premises for supermarkets or discount stores (restriction).
On February 15, 1983, HREI and the trustees’ successor, Community Savings Bank, entered into a duly recorded agreement (1983 amendments) that amended the 1970 agreement by deleting several of its articles, including article 9, the fifty-year time limit on the restriction.
1. The judge correctly concluded that § 23, and not § 27, governs the dispute. Although Urstadt did not file a cross appeal on the judge’s ruling with respect to § 27, it argues in its brief that we may affirm the grant of summary judgment in its favor on the ground that it validly extended the restriction pursuant to § 27 (b) (set forth at note 3, supra). See Champagne v. Commissioner of Correction, 395 Mass. 382, 386 (1985). Because
Since 1887, Massachusetts law has imposed a thirty-year time limitation on land use restrictions that do not themselves contain an express limitation on duration. St. 1887, c. 418. Landowners, however, remain free to burden or benefit their land with use restrictions, enforceable for a period less than, or greater than, thirty years. By statute, restrictions imposed after December 31, 1961, are not enforceable “after thirty years from the imposition of the restriction,” G. L. c. 184, § 27 (b), unless certain statutory requirements are met, including the requirement that the party seeking to enforce the longer restriction records a “notice of restriction” before the expiration of the first thirty years of the restriction’s existence, and before the expiration of each successive twenty-year period. § 27 (b) (2). See G. L. c. 184, §§ 29, 30.
Stop & Shop and Urstadt agree that the effect of the 1983 amendments rendered the restriction “unlimited as to time” and, thus, subject to a thirty-year term under § 23. Urstadt argues, however, that restrictions subject to § 23, including the restriction it seeks to enforce, may be extended pursuant to § 27 (b). In support of its position, Urstadt asserts that “nowhere in the plain language of the statute, or in the case law interpreting the statute, does it state that [§] 27 applies only to restrictions with defined terms of more than thirty years.”
While Urstadt’s assertion may be true as a technical matter, § 27, by its express terms, requires, in order to extend the period of enforceability, that a notice of restriction be recorded “before the expiration of the thirty years [from the imposition of the restriction].” This statutory language indicates that restrictions for less than thirty years do not come within the scope of § 27, and, thus, cannot be extended under the statute. Section 27 is to be read, to the extent possible, harmoniously with § 23. Gillette Co. v. Commissioner of Revenue, 425 Mass. 670, 674 (1997). Dowling v. Registrar of Motor Vehicles, 425 Mass. 523, 525 (1997). If, as Urstadt contends, a restriction unlimited as to time merely needed the recording of periodic notices under § 27 (b) to remain in force, then § 23 itself would be superfluous, as § 27 (b) would extinguish any restriction as to which the proper notice had not been recorded. Rather, § 23 sets a “term” of thirty years in the absence of any stated time frame in the parties’ underlying agreement, and nothing in § 27 (b) al
2. We turn next to the date on which the restriction began to run. Section 23 provides that “restrictions, unlimited as to time . . . shall be limited to the term of thirty years after the date of the deed or other instrument . . . creating them.” Stop & Shop contends that the word “creating,” in § 23, commences the thirty-year limitation period. Stop & Shop maintains that it is the date of the instrument that originally created the restriction from which the limitation period runs, here, February 13, 1970, the date on which the 1970 agreement was executed and recorded.
Stop & Shop’s argument ignores relevant, and reasonably clear, language in the statute, namely, the words “unlimited as to time,” that follow and qualify the term “restrictions.” The statute is to be construed as written, in keeping with its plain meaning, see Massachusetts Community College Council v. Labor Relations Comm’n, 402 Mass. 352, 354 (1988), so as to give some effect to each word, see Bankers Life & Cas. Co. v. Commissioner of Ins., 427 Mass. 136, 140 (1998). The language of § 23 informs us that the date from which its thirty-year limitation period begins to run is the date on which the restriction became or becomes unlimited as to time. Here, the restriction did not become unlimited as to time until the 1983 amendments were executed and recorded, February 15, 1983. Before that time, the restriction remained subject to a fixed duration of fifty years and was not subject to § 23. We reject Stop & Shop’s argument that the comma after the term “restrictions,” separat
Our construction of § 23 is consistent with the Legislature’s intent. We recognize that restrictions on land are disfavored, and they “in general are to be construed against the grantor and in favor of freedom of alienation.” Ward v. Prudential Ins. Co., 299 Mass. 559, 565 (1938). See Harrington v. Anderson, 316 Mass. 187, 189-190 (1944) (landowner seeking to enforce restriction has burden of proving restriction was intended to benefit his land); St. Botolph Club, Inc. v. Brookline Trust Co., 292 Mass. 430, 433 (1935) (party claiming benefit of restriction has burden of proving it is appurtenant to his land, and ambiguities are to be resolved in favor of freeing land from servitude). The Legislature has maintained this policy by limiting the duration of restrictions that are unlimited as to time, see § 23, and by establishing a procedure through G. L. c. 184, §§ 26-30, by which a landowner may “remove or prevent the enforcement of obsolete, uncertain or unenforceable restrictions,” Labounty v. Vickers, 352 Mass. 337, 348 (1967), quoting Thirty-sixth Report of the Judicial Council, Pub. Doc. No. 144, at 81 (1960). The Legislature, however, has not precluded landowners (who otherwise comply with the requirements of §§ 26-30) from bargaining for, and enforcing, beneficial land use restrictions that contain a lengthy, but definite term of duration.
Nor does our construction frustrate the extension requirements of § 27. Had the parties to the 1983 amendments intended to invoke § 27, they would have ensured that the original fifty-year time limit remained in place, so that a notice of restriction could be recorded by February 13, 2000, to enforce the restriction for the full fifty years. They did not follow this path, and because they did not, a new time limitation, thirty years, attached to the restriction pursuant to § 23.
Finally, we reject Stop & Shop’s assertion that the judge’s construction of § 23 violates public policy because “allowing a subsequent modification to serve as the creating instrument makes it impossible for a third-party purchaser to rely reasonably on record title concerning the duration of a restriction on the land.” This concern does not exist here because the 1983 amendments were recorded, thus Stop & Shop has constructive, if not actual, notice of the restriction’s change in duration. Because “[a] buyer of real estate cannot be charged with constructive notice of an equitable restriction unless he can find it recorded somewhere in his chain of title,” Stewart v. Alpert, 262 Mass. 34, 38 (1928), any amendment to a deed or instrument that changes the duration of a land use restriction must also be recorded to make it fully enforceable during its new duration. See Restatement (Third) of Property (Servitudes) § 7.15 (2000) (“An unrecorded modification or termination of a recorded servitude is not effective against a subsequent taker of an interest in property burdened or benefited by the servitude who is otherwise entitled to the protection of the recording act”). Recording provides potential third-party purchasers with adequate notice of the restriction and its duration.
3. In summary, we see nothing in § 23, or in the general
Judgment affirmed.
General Laws c. 184, § 23, reads as follows:
“Conditions or restrictions, unlimited as to time, by which the title or use of real property is affected, shall be limited to the term of thirty years after the date of the deed or other instrument or the date of the probate of the will creating them, except in cases of gifts of devises for public, charitable or religious purposes. This section shall not apply to conditions or restrictions existing on July sixteenth, eighteen hundred and eighty-seven, to those contained in a deed, grant or gift of the commonwealth, or to those having the benefit of section thirty-two.”
Stop & Shop’s predecessor, S & S Business Corp., asserted this contention in its complaint, filed on December 10, 1996, that sought a declaration that the restriction “expires on February 13, 2000.”
General Laws c. 184, § 27, provides in pertinent part:
“(b) after thirty years from the imposition of the restriction, unless
“No restriction imposed after December thirty-first, nineteen hundred and sixty-one shall be enforceable: —
“(2) . . . a notice of restriction is recorded before the expiration of the thirty years, and in case of such recording, twenty years have not expired after the recording of any notice of restriction without the recording of a further notice of restriction.”
The restriction provides: “Springfield [Mall] Trust hereby covenants and agrees that no portion of its property shall be used for the operation of a food supermarket or for the operation of any discount store listed on Exhibit ‘D’ attached hereto or any discount store conducting an operation similar to those so listed.”
Paragraph 5(iii) of the 1983 amendments provides that “[t]he 1970 Agreement shall, as to [the premises and HREFs abutting property], be deemed modified and amended by the deletion of Articles 1, 2, 3, 4, 7, 8 and 9 thereof and as so modified and amended shall remain in full force and effect. . . .”
Stop & Shop does not contend that the judge erred in concluding that the restriction, pursuant to G. L. c. 184, § 30, is “of actual and substantial benefit” to Urstadt.