“Terrifying for Developers”: Did Massachusetts Let a Neighbor Resurrect an Expired Deed Restriction?

Earlier this month, the Massachusetts Lawyers Weekly publication summarized an interesting court case on Massachusetts deeds. Attorney Eric T. Berkman laid out the case of a deed holder who created a new deed restriction, echoing an old and expired one. A judge said it was OK because it did not constitute an attempt to enforce the old deed clause.

That “New” Deed Restriction? [Gavel Drops] Enforceable!

Now, an expired restriction buried in a decades-old Massachusetts deed can be enforceable if deliberately created anew. What’s more, “deliberate” intent may be proven by actions outside the deed records.

“This decision is particularly terrifying for developers,” said Boston real estate attorney Noel DiCarlo.

DiCarlo says title searches won’t catch old, expired deed restrictions. This means a property’s neighbor would have legal standing to block development by way of “deed restrictions that may have been quietly revived.”

As reported in the Massachusetts Lawyers Weekly, DiCarlo called the Superior Court judge’s recent decision “a land-use minefield.”

Deeds in Disarray? The Story of Lot 61

Lot 61 came into being in 1955. A large parcel of land was subdivided, with Lot 61 being one of the sections sold off. Lot 61 was deed-restricted, as allowed by Massachusetts law, for a term of 30 years. Only a single house could be built upon it.

The lot was sold three times between 1955 and 1970. Throughout this time, the deed restriction ran with the land, from owner to owner.

A couple named Edward and Jacqueline bought Lot 61 in 1970. Edward passed away, and Jacqueline sold the home property in 2009, to Cleary LLC. By now, under the law, the 30 years was up and the single-house restriction would have expired. But Jacqueline transferred the property with a new deed restriction.

The new deed wording didn’t perfectly match the 1955 text. It didn’t include the setback language from the earlier restriction, either. The key thing it did do? It once again limited the buyer to having only a single-unit home on the property. Jacqueline would not have sold the home without it, according to testimony that would later be presented in court.

Now it gets a little more complicated. Cleary, the new owner, divided the property. This resulted in two parcels: Lot 61A (with the house), and Lot 61B (consisting of unbuilt land). In 2010, Cleary LLC sold the parcel with the house to new homeowners. This deed had no restrictions, and the owners transferred it to Andover Community Trust, Inc. (“ACT”) in 2016, again, with no restrictions.

ACT had signed a contract to buy the unbuilt piece of land in 2009, from Cleary. But when ACT found out about Jacqueline’s (presumably 30-year) deed restriction, ACT sued Cleary to cancel the purchase contract. In 2023, after their case was dismissed, ACT Inc. entered into a new purchase and sale agreement with Cleary. Then, ACT Inc. applied for a permit to build a single-unit, affordable house on the unbuilt land — Lot 61B.

At this point, the people now living in the house next door in Lot 61A, Michael and Francine, went to court to enforce the newer (2009) deed restriction which, they claimed, applied to the property they bought.

You Can’t Build That There: What the Court Said

First, Michael and Francine approached the zoning board to stop ACT from building. The zoning officials denied a permit for ACT’s building plans.

Next, the couple filed an action in the Essex Superior Court, Gikow v. Cleary, to have the 2009 restriction upheld.

The Essex Superior Court heard ACT’s various arguments for why the 2009 deed was not valid. The gist of the argument for building? The old restriction had run out its 30-year course by 1985, and should not be revived.   

Judge Elizabeth Dunigan, though, accepted the position of Michael and Francine. The deed holders next door, said the court, could enforce the 2009 deed restriction barring development on the unbuilt lot. The 2009 language did resemble the expired restriction — but in 2009, the language placed on the deed was purposefully written, and new.

Indeed, the court ruled, the 2009 deed language constituted an entirely new restriction. So much for ACT’s position — that the 2009 language merely meant to mirror the expired 1955 language, and that any difference between the old and new clauses was a transcription error.

The court took note of evidence that Jacqueline meant to impose a deed restriction in 2009. What evidence did the court go through? Here are some of the points that the attorneys for Michael and Francine presented:

• Jacqueline’s nephew appeared in court to testify. This nephew held power of attorney to sell Jacqueline’s home. Jacqueline’s advisor told the nephew not to close on the deal or convey the deed without ensuring the presence of the deed restriction.

• The mortgage company’s attorney testified, too. The testimony stated that Jacqueline wanted the 2009 restriction to exist, even after she reviewed a draft deed which corrected her name, but left out the deed restriction.

• Counsel for Michael and Francine introduced a letter, signed by Jacqueline’s attorney and sent to the attorney for the buyer, stating that Jacqueline would not sign a deed without the restriction.

The court decided ACT would not be able to prove by “clear and convincing evidence” that the rewording of the newer deed simply tried to copy the 1955 restriction. The court therefore determined that the 2009 restriction was new, valid, and not an attempt to prolong an expired restriction.

So, where does this leave Massachusetts sellers, buyers, and developers? Everyone knows that an expired deed restriction is unenforceable. The prickly question here is what counts as a new one — if it contains echoes of an old one.

Court’s Ruling Is a “Game-Changer” But Will It Hold?

Boston property lawyer Noel DiCarlo calls the case a “game-changer.” Now, an expired restriction can haunt developers. A revival of a deed restriction from years long past? It could be enforceable, if deliberately created. And part of the evidence a neighbor can use to have it enforced could be testimony from a prior deed holder, or others who can speak to that person’s intent.

Developers expect to rely on the language contained within a deed itself. The decision in Gikow v. Cleary muddies the waters in Massachusetts. There are plenty of fine-point questions now: How much must a deed restriction vary from an expired one to count as new? An additional question presented in the Massachusetts Lawyers Weekly came from Donald R. Pinto Jr. in Boston: Would there be some span of time “after which even an identical restriction could be reimposed” and considered new?

Expect more court cases to crop up in Massachusetts, addressing these and other unanswered questions.