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Lifespan of Restrictive Covenants on Massachusetts Real EstateReal Estate
Posted in on December 22, 2017
Restrictive covenants are, in a nutshell, private restrictions on the use of land. They are generally disfavored by state law, and developers must adhere to strict guidelines to protect their enforceability beyond a thirty-year period.
Restrictive covenants typically arise during residential or commercial developments. Before selling off property, a developer could create restrictions governing certain aspects of the buildings or landscapes on each lot. The scope could include color and design of a building, use of a property (such as a single-family residence being required where zoning would otherwise allow multi-family residences), and maintenance of trees and bushes.
These restrictions are contracts between the developer and owners of the properties (including subsequent owners, assignees, and mortgagees). In Massachusetts, restrictive covenants “created by deed, other instrument, or a will” expire in 30 years unless properly extended (the 30-year limit generally does not apply to restrictions imposed by a planning board).
A recent case from the Massachusetts Appeals Court instructs that the developer must explicitly provide for potential extensions in the original documents in order for a restrictive covenant to survive beyond 30 years. This rule applies to any restriction created after January 1, 1962. Under the applicable statute, extensions of 20 years each may be approved by a majority of the owners in the development, but only if addressed in the original documents. In the Appeals Court case, the original restrictive covenant documents allowed the owners, by 2/3 vote, to amend the restrictions. However, the amendment provision did not explicitly address extensions. Because the right to extend was not set forth in the original documents, the court held that the owners, even with a 2/3 vote, could not extend the restriction beyond 30 years. Accordingly, the bulk of the owners in a development could not enforce the restrictions against one owner after the 30-year period had expired.
If you own or are purchasing property subject to restrictive covenants, or if you are a developer considering whether to create restrictive covenants, please contact one of the Real Estate attorneys at Baker, Braverman & Barbadoro, P.C. to get the expert legal advice you need. – Kimberly Kroha.