Opinion
No. 11–P–1562.
2012-07-24
Mark CORBIN & another v. Cecilia SEDERMAN.
By the Court (GRAHAM, VUONO & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs appeal from a judgment of the Superior Court declaring that certain restrictive covenants, which would have affected property purchased by the defendant, were not binding on her. On appeal, the plaintiffs contend that the Superior Court judge erred in concluding that the restrictive covenants did not run with the land for lack of privity of estate. We agree and accordingly reverse that portion of the judgment declaring that the restrictive covenants are not binding on the defendant and remand for the entry of a new judgment.
Procedural and factual background. We recite the undisputed facts. The plaintiffs own property situated at 486 Lowell Street in Methuen, Massachusetts, which is located along the Merrimack River. A paved driveway running over 486 Lowell Street provides the sole access to properties located at 484 and 482 Lowell Street, which are also located along the Merrimack River. The plaintiffs acquired 486 Lowell Street by deed in 1995. In 2002, they became aware of a discrepancy between their deed and the plan filed with the Essex Registry of Deeds concerning the location of an easement covering the driveway. Seeking to remedy the discrepancy, on November 12, 2002, the plaintiffs recorded a declaration of easement and restrictive covenants, which was signed by them, but not the then-current owners of 484 or 482 Lowell Street. In January, 2003, however, the owner of 484 Lowell Street, Brian Morison, recorded a repudiation of the November 12, 2002, declaration. On April 24, 2003, Morison entered into a purchase and sale agreement for the property at 484 Lowell Street with the defendant, conditioned on satisfactory resolution of the dispute between the plaintiffs and Morison concerning the location of the driveway easement. In pursuit of resolution of the easement dispute, Morison filed suit against the plaintiffs in the Land Court seeking to establish title to the easement. The parties agreed to resolve the issue via settlement, and the Land Court action was eventually dismissed on June 5, 2003. On June 3, 2003, the plaintiffs and Morison signed a new easement declaration (2003 easement and covenant), which defined the location of the driveway easement and included certain restrictive covenants. Later that same day, unaware that Morison had agreed to the 2003 easement and covenants, the defendant acquired 484 Lowell Street by deed at a real estate closing. She moved in that same day. On June 5, 2003, the owner of 482 Lowell Street, Susan Gauthier, also agreed to the 2003 easement and covenants, which was then recorded in the Registry of Deeds on June 6, 2003. The defendant recorded her deed on June 9, 2003.
Upon entering into the purchase and sale agreement with the defendant, Morison sent notice of his intention to sell the property, together with a copy of the agreement, to the plaintiffs.
These covenants included restrictions on parking at the end of the driveway; a five mile per hour speed limit; the plaintiffs' right to charge fees for maintenance, repairs, and snow removal; a provision defining transgression of the easement's boundaries as a trespass; and liability for the acts of guests using the driveway.
On January 21, 2004, the plaintiffs filed suit against the defendant in Superior Court, seeking injunctive relief and monetary damages for the defendant's violation of the restrictive covenants. They alleged that the defendant failed to pay maintenance fees; transgressed the boundaries of the easement; and failed to repair damage to their property caused by her repairs to a sewer system. The plaintiffs moved for partial summary judgment, and their motion was denied on March 30, 2007. A jury-waived trial on the merits was held on July 24 and 25, 2007. The judge concluded that the restrictive covenants were not binding on the defendant because Gauthier had not signed the 2003 easement and covenants until after the defendant took title to her property. The judge further concluded that the defendant was nevertheless liable for damage to the plaintiffs' property caused by her repairs to the sewer system and ordered the defendant to pay $2,315 to the plaintiffs. The plaintiffs timely appealed.
As the judge put it, the 2003 easement “did not become a fully executed contractual agreement until Gauthier signed it on June 5. At that time, the covenanting parties did not ‘hold simultaneous interests in the same land’ because Morison had already conveyed 484 Lowell Street to [the defendant]. Well–Built Homes, Inc. [v. Shuster, 64 Mass.App.Ct. 619, 627 n. 15 (2005) ].”
Neither party contests this part of the judge's order on appeal.
Discussion. The plaintiffs argue that the judge erred in concluding that the required privity of estate was not present because Gauthier did not sign the 2003 easement and covenants before the defendant acquired 484 Lowell Street at the closing. They argue that the grant of the easement to Morison in the 2003 easement and covenants provided the requisite privity of estate for the restrictive covenants to run with the land and that Gauthier's signature was not required. We agree.
“[T]he requirements for a covenant to run with the land are that (i) the covenants must be evidenced in a writing signed by the covenantor; (ii) the deeds must express the covenantor's intention that the covenants run with the land; (iii) the deeds must grant mutual easements sufficient to satisfy the requirement that the parties be in privity of estate; (iv) both the benefit and the burden of a real covenant must ‘touch and concern’ the affected parcels of land.” Well–Built Homes, Inc. v. Shuster, 63 Mass.App.Ct. 619, 626–627 (2005). Here, there is no dispute that Morison, as covenantor, intended that the covenants should run with the land. Nor is there any dispute that the covenants touch and concern the affected parcels, since they accompany the creation of a right of way, define rules for its use, and allow for the collection of maintenance and repair costs associated with it.
For privity of estate to exist, “the covenant must impose such a burden on the land of the covenantor as to be in substance, or to carry with it, a grant of an easement or quasi easement, or must be in aid of such a grant.” Norcross v. James, 140 Mass. 188, 191 (1885). See also Shell Oil Co. v. Henry Ouellette & Sons, 352 Mass. 725, 729–731 (1967). In other words, privity of estate exists when the covenanting parties hold simultaneous interests in the same land—i.e., when they are lessor and lessee or the dominant and servient owners of an easement. See Well–Built Homes, Inc., supra at 627 n. 15, and cases cited. See also 9 Powell on Real Property § 60.04[3][c][ii] at 60–58. Here, the deed creating the restrictive covenants also fixed the location of the driveway easement, making Morison and the plaintiffs the dominant and servient owners of an easement. The required privity of estate was therefore present. Accord Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 90 (1979) (mutual grant of easements sufficient to satisfy privity of estate requirement). Contrast Harrington v. Anderson, 316 Mass. 187, 189 (1944) (restrictive covenant could not be made appurtenant to land of “one who in the view of the law was a stranger”). For the 2003 easement and covenants to take effect between the plaintiffs and Morison, the only party whose signature was required was the covenantor's—i.e., Morison's. See Well–Built Homes, Inc., supra at 626. That Gauthier did not sign the document until after Morison sold his property to the defendant is irrelevant.
The “peculiar Massachusetts requirement of privity of estate,” Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 93 (1979), “has never been expressly overruled.” Well–Built Homes, Inc., supra at 627 n. 15.
Accordingly, that portion of the judgment declaring that the restrictive covenants contained in the 2003 easement and covenants are not binding on the defendant is reversed and a new judgment is to enter declaring that the restrictive covenants in the 2003 easement and covenants are binding on the defendant.
The remainder of the judgment is affirmed.
So ordered.