John P. Sullivan and Pamela A. Sullivan (col-
lectively, Sullivans), plaintiffs in an action for declaratory judgment in the Land Court, appeal from the allowance of the motion for summary judgment made by the defendants, the trustees (defendant trustees or trustees) of the Westwood Hills Improvement Association (association). The Sullivans, who own a home within the community of the association, sought a judgment declaring that they are not required to pay semiannual assessments to the association. The Sullivans contend that the judge erred in deciding that the association could enforce its assessments against the Sullivans as an equitable servitude that burdened their land. Additionally, the Sullivans aver the judge erred in failing to issue the requested declaration that the deed restrictions, consistent with covenants of a 1929 declaration of trust, have expired by operation of G. L. c. 184, § 28, and thus that the Sullivans’ property is not bound by a 1991 “declaration of restrictive covenants.”
Background. The association is an unincorporated association created by a declaration of trust recorded in 1929. The association holds various properties in Westwood Hills, known collectively as the Westwood Hills Community (community). The association was created to provide services and amenities to the community, including common ownership and creation of roadways, parks, trees, and playgrounds; their maintenance by snow removal and landscaping services; and general community maintenance. The association also pays taxes, assessments, and liens that have been levied on property held by the association. Pur
1. Sullivans’ deed. In 1977, the Sullivans purchased property within the community at 14 Surrey Lane (the property). Their deed made a specific title reference to a 1947 deed from the Westwood Hills, Inc., to the association.
The language of the deeds in the Sullivans’ chain of title expressly subjects said property to “any and all restrictions of record which are now in force and applicable thereto,” which are imposed for the benefit of the association and the property owners. The Sullivans’ deed specifically recites that the premises are conveyed, along with “all the privileges and appurtenances thereto belonging, . . . [tjogether with all right, title, and interest of the grantor in the abutting portion of Surrey Lane to the center line thereof, subject to the use thereof by others having rights therein.” The Sullivans, moreover, purchased said property subject to restrictions for “the benefit of all the owners of land in Westwood Hills,” restrictions that “shall be enforceable by the Trustees of the Westwood Hills Improvement Association; or by any or all owners of lots of land in said Westwood Hills,” and “are to remain in force until the expiration of one hundred and fifty years from January 1, 1930,” unless otherwise released, as mentioned in a recorded declaration of trust, “by a two-thirds vote of the holders of certificates” in the association.
Among the various restrictions imposed upon the property, the Sullivans’ deed sets forth restrictions on setbacks, subdivisions, and new construction, and a prohibition on commercial use. The restrictions further curb appropriate uses of the property, reserving to the association the right to approve or disapprove certain uses. However, the Sullivans’ deed does not contain any language that expressly requires membership in, or payment of assessments to, the association. As such, the Sullivans claim never to have received a certificate from the association or from the Melvilles, from whom they purchased the property, obligating payment of assessments to the association, and that they (the Sullivans) never agreed to be members of or bound to the association.
From their purchase in July, 1977, through June, 1983, the Sullivans received notice of, and paid, semiannual assessments
2. Procedural history. In 2007, the trustees brought suit against the Sullivans in District Court seeking their unpaid assessments (from and after June, 1983). The Sullivans responded by obtaining a stay of the District Court action in order to file the present action in the Land Court for declaratory and injunctive relief.
Discussion. We review the motion record according to the familiar summary judgment standard. Summary judgment is appropriate if, “viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co.,
An appeal based on a summary judgment motion is subject to de nova review by this court. Fortenbacher v. Commonwealth,
1. Mandatory nature of assessments. In allowing the trustees’ motion for summary judgment, the judge determined the Sullivans were required to pay the association’s assessments based on three distinct theories: title-based; common scheme; and implied-in-fact contract. The judge’s decision finds ample support in the motion record on all three bases, any one of which provides a sufficient basis to affirm the judge’s decision.
a. Title-based theory. While Massachusetts follows the general rule that land “is free of encumbrances that are not noted on the certificate of title” or in the chain of title, there exist two exceptions to that general rule: “(1) an encumbrance may bind an owner if what the certificate of title recites in the way of prior documents, plans, restrictions, rights, and reservations would prompt a reasonable purchaser to investigate further the referenced documents, or (2) the purchaser has actual knowledge of the encumbrance.” Popponesset Beach Assn. v. Marchillo,
In his application of the title-based theory, the judge appropriately acknowledged the Sullivans’ contention that the 1977 deed did not contain an explicit provision requiring membership in the association or the payment of the association’s assessments. Nevertheless, we agree with the judge that the instant case falls within both exceptions set forth in Popponesset Beach Assn., supra, and further explained by Guillette.
Turning to the first exception, the judge properly cited the existence of “ample evidence” that the Sullivans’ deed specifically referenced the association multiple times in connection with the restrictive covenants. The chain of title to the Sullivans’ property charged the Sullivans with notice that their property was subject to restrictions and obligations of the type claimed by the association, thereby providing sufficient notice to stimulate a search for obligations imposed by the association, which would have led to the 1929 declaration of trust. Moreover, we consider it significant that the trust declaration specifies that “[t]he sale of a certificate holder’s land terminates his interest in the trust and his right [to receive benefits from the public or semipublic or community property together with others] passes to his successor in title.” See note 5, supra. The fact that the Sullivans may not have acquired a certificate from their predecessor in title is irrelevant, as it is clear that property ownership is the sine qua non of beneficial interest in the trust and, by virtue thereof, of its burdens.
Shifting our analysis to the second exception to the general rule that encumbrances will not be imposed on otherwise free land, we find also that the Sullivans had actual knowledge of the obligation to pay assessments to the association. In light of
The instant case is furthermore controlled by Guillette. The court in Guillette, 361 Mass, at 358-359, cited both the existence of a uniform monetary obligation in all the deeds in the subdivision as well as the fact that the deed at issue made an explicit reference to the underlying subdivision plan as grounds upon which the court imposed said obligation. Although the facts at bar are distinguishable from those in Guillette, the aforementioned reasoning is applicable. Here, all past and present property owners within the community possess certificates that explicitly articulate property owners’ respective duties to pay the assessments. In the same manner, the 1977 deed to the Sullivans included express conditions restricting building and use of the land and imposed a regulatory review by the defendant trustees of the association.
b. Common scheme theory. While the Sullivans’ chain of title provides ample basis for the judge’s decision, insofar as there is an express declaration of trust establishing a scheme of assessments (including determination of their amounts and frequency), it also is worthwhile to examine the common scheme rationale as a basis for his decision, as this theory lends a strong independent basis to support the title-based theory and serves to overcome any technical, procedural, or superficial gap that might be perceived to lie in the mechanism provided for enforcement and collection of those assessments. Furthermore, our discussion of the common scheme theory serves as a template for
Briefly summarized, as the judge held, because a certificate creates land restrictions by means of a writing, and every parcel of land in the community is restricted by such a certificate, “[t]o hold that [the Sullivans] are exempt from such an obligation simply because the previous owner allegedly failed to assign the certificate, or because the Association failed to keep record of a certificate, is contrary to the law and to basic principles of equity and fairness.” The judge analogized the facts arising in the instant case to the traditional view of common scheme explained in Houghton v. Rizzo,
In determining the existence of a common scheme, the judge appropriately noted the applicability of § 2.14 of the Restatement, which states: “[a] conveyance by a developer that imposes a servitude on the land conveyed to implement a general plan creates an implied reciprocal servitude burdening all the developer’s remaining land included in the general plan, if injustice can be avoided only by implying the reciprocal servitude.”
Moreover, the language set forth in the Restatement is consistent with Massachusetts law, as pronounced in Snow v. Van Dam,
Moreover, this conclusion is consistent with interpretations of the Restatement outside' Massachusetts where courts have construed the obligation of a property owner in a common interest community to include an implied obligation to uphold the common interest of the community. The Colorado Supreme Court in Evergreen Highlands Assn. v. West,
Here, the record contains sufficient evidence that a common scheme was created in 1929 and continued to exist at the time of the Sullivans’ purchase of their property. Looking to the original documents inherent in the establishment of the community in 1929, its subdivision, and the original deeds drafted by the developer, it is clear the association was created with the purpose of managing and maintaining the community. These documents appear to have been created contemporaneously with the trust and the association, as all the original deeds refer to the trust. The declaration of trust explicitly states that an association of property owners existed, that said association owned and maintained common areas within the community, and that the association had the power to impose annual membership or use fees on “certificate holders,” i.e., lot owners. Such clear language demonstrates that the trust document manifested an interest created for the common benefit of those in the community to be held by the owners of property. Equally well supported by the record is the existence of a burden to be shared by those same property owners to support, by the payment of assessments, the property held in trust and the duties of maintenance of the association, again for the common benefit of the community and its property owners. Stated in the Sullivans’ deed is a clear expression that the property is conveyed subject to restrictions that were “made for the benefit of all of the owners of land in Westwood Hills,” and that said restrictions “shall be enforceable by the Trustees of the Westwood Hills Improvement Association; or by any or all owners of lots of land in said West-wood Hills.” The widespread and common applicability of these restrictions creates a common scheme whereby obligations are
c. Implied-in-fact contract theory. Finally, we agree with the judge’s finding that the assessments were enforceable against the Sullivans pursuant to an implied-in-fact contract theory.
“In the absence of an express agreement, a contract implied in fact may be found to exist from the conduct and relations of the parties.” LiDonni, Inc. v. Hart,
The judge properly credited the argument proffered by the defendant trustees: that the Sullivans purchased the property with actual knowledge of the association and that, by moving into the neighborhood with such perceptible services, they would have been on notice that the property was part of a private community. See Sea Gate Assn.,
2. Nonexpiration of assessments. The judge agreed with the Sullivans that, as applied to them, the restrictions in the deeds had been extinguished by operation of G. L. c. 184, § 28.
The requirements of an equitable servitude are: “(1) The restriction must be created in a written instrument which satisfies the Statute of Frauds. (2) The original parties must have intended that the restriction be enforceable against subsequent grantees of the land burdened with the restriction by subsequent grantees of adjoining or other parcels of land benefitted by it. (3) The restriction must ‘touch and concern’ the burdened and benefitted land. . . [and] (4) [a] subsequent owner of the burdened land must have had notice of the restriction[,] actual . . . [or] constructive, by virtue of the restriction being recorded in a prior conveyance in the chain of title.” Alperin, Summary of Basic Law § 15.73 (4th ed. 2009). See Whitinsville Plaza, Inc. v. Kotseas,
The judge correctly noted that it is “the rule in the Commonwealth that a previous grantee’s promise to make annual payments connected with land may impose on the granted premises an equitable servitude enforceable against the subsequent owner taking title with actual or constructive notice of the obligation, even where the equitable servitude calls for the payment of money,” citing Everett Factories & Terminal Corp. v. Oldetyme Distil. Corp.,
Remedy. The judge decided that the defendant trustees may seek to enforce the association’s right to collect the semiannual assessments against the Sullivans. In Everett Factories & Terminal Corp., supra at 508, a case cited by both parties, the court explained that under Massachusetts common law, an equitable servitude to pay financial obligations cannot be enforced by an action, in personam, against a defendant, but rather in an action of equity against the land. The obligation to make annual payments is enforced as an equitable servitude, and as such, enforced in equity as appurtenant rights against the premises, but said obligation “cannot, by reason of the equitable servitude, be enforced as a personal obligation of the defendant.” Ibid. This result was consistent with a long line of cases, including Orenberg v. Johnston,
So ordered.
Notes
The Sullivans also complain that the judge improperly struck paragraph 6 of John P. Sullivan’s affidavit, in which he purported to attach various uncertified and improperly authenticated documents. We are unpersuaded, given the reasoning of the judge, that this error, if any, has relevance to the principal issues on appeal.
The obligation of property owners, as certificate holders, to pay assessments appears only in the 1929 declaration of trust. Specifically, the declaration states:
“Article IX. . . . Each certificate holder shall pay to the Trustees . . . the amount of the annual charge or assessment determined as hereinafter provided. . . .
“Article X. . . . Certificate holders shall have no legal title to the trust property, real or personal, held from time to time by the Trustees and shall have no right to call for any partition. Their interest consists only in the right to receive benefits from the public or semi-public or community property together with others. Said certificates are personal property and are transmissible and transferable as personal property on the books of the Trustees subject to the provisions of this agreement. The sale of a certificate holder’s land terminates his interest in the trust and his right passes to his successor in title.
“Certificates may be transferred on the books of the Trustees by the person named in the certificate thereof . . . upon the surrender of the certificate duly endorsed and a new certificate shall be issued to the transferee subject, however, to the provision herein contained that no certificates shall be transferred except to an owner of a lot shown on said plan of Westwood Hills.
“Each person upon receiving a certificate shall assent to a written copy of this trust and agree to be bound by the provisions of the same and to the payment of assessments as herein provided.
“In case of the sale by any certificate holder of his lot he shall transfer to the new owner his certificate, who shall accept the obligation thereunder by an instrument in writing duly recorded on the books of the Trustees. Assessments shall be binding upon the certificate holders in case of sale unless and until his certificate shall be duly transferred as aforesaid to the succeeding owner of said lot.”
In 1948, trustees of the association deeded the property ultimately acquired by the Sullivans to “Harry B. Goodspeed, et ux”; thereafter, the property was conveyed to the Joneses; and subsequently, in 1967, the Joneses conveyed title to the Melvilles. The Melvilles conveyed title to the Sullivans in 1977.
This certificate is not a certificate of title under G. L. c. 185 (registered land), but instead the certificate referred to in the 1929 declaration of trust that describes the restrictions, obligations, and benefits that come with being an association member.
The parties dispute two payments alleged to have been made by the Sullivans in 2001, in the amounts of $3,375.70 and $348.27.
Guillette thus may be viewed as an application of the first exception set forth in Popponesset Beach Assn., supra. While it does not alter the settled rule that “[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,
The judge also decided that the second exception, i.e., actual knowledge, applied to the facts at bar; he was satisfied that actual knowledge existed by both the language of the 1977 deed and the supporting evidence on the record, stating: “[gjiven the private nature of the [community] and the language of the deed, it is difficult to imagine that the [Sullivans] did not have actual knowledge of the Association during the purchase of the Property.”
Section 1.7 of the Restatement further defines such a “general-plan development” as “(1) a real-estate development or neighborhood in which
Section 1.8 of the Restatement states that “ ‘[a] common-interest community’ is a real-estate development or neighborhood in which individually owned lots or units are burdened by a servitude that imposes an obligation that cannot be avoided by nonuse or withdrawal (1) to pay for the use of, or contribute to the maintenance of, property held or enjoyed in common by the individual owners, or (2) to pay dues or assessments to an association that provides services or facilities to the common property or to the individually owned property, or that enforces other servitudes burdening the property in the development or neighborhood.” Restatement (Third) of Property (Servitudes), supra at § 1.8.
Indeed, the introductory sentences of comment c to § 1.8 of the Restatement are informative as to this implied duty to support the trust property and services and are descriptive of the development at issue: “Most common-interest communities have both commonly held property and mandatory-membership associations, but the existence of either is sufficient to constitute the property bound by the servitude requiring payment to a common-interest community. The distinctive feature of a common-interest community is the obligation that binds the owners of individual lots or units to contribute to the support of common property, or other facilities, or to support the activities of an association, whether or not the owner uses the common property or facilities, or agrees to join the association. Most common-interest communities are created by a declaration, which not only imposes the servitudes, but also
While the issue of implied assessments has not been frequently litigated in Massachusetts, the view adopted by the judge, and with which we agree, is consistent with judicial interpretations from other jurisdictions. See, e.g., Perry v. Bridgetown Community Assn.,
Section 28 generally provides that restrictions imposed before 1962 are deemed to have expired fifty years from their imposition unless a new notice of restrictions is recorded every twenty years.
The judge found that the remainder of the community continued to act as if the restrictions had not expired and still were valid, but noted that it was not until 1991 that the remaining members expressed their recommitment to the restrictions by recording their “declaration of restrictive covenants,” which the Sullivans never signed.
We deny the defendant trustees’ request for appellate attorney’s fees.