A Ticking Time Bomb: HOA Covenants Throughout Massachusetts Could Have Silently Expired


Lots of of Massachusetts House owner’s Affiliation (HOA) Covenants, Situations and Restrictions (CCR’s) Could Be Void and Unenforceable

After a home-owner balked about paying a late charge, I used to be not too long ago requested by a neighborhood house owner’s affiliation down the Cape to evaluate their House owner’s Affiliation Covenants. To my shock, I found that in gentle of an under-the-radar 2017 Appeals Courtroom ruling, the covenants had silently expired and gone into void and unenforceable standing, with no authorized potential to resurrect them. Upon additional analysis, I realized that a whole bunch of HOA covenants throughout the state could also be unwittingly dealing with the identical scenario.

Background: Declaration of Restrictive Covenants

In my scenario, a “Declaration of Restrictive Covenants” for a subdivision of some 40 tons was recorded again in 1977 with the Barnstable County Registry of Deeds. The Covenants created the house owner’s affiliation to control the subdivision, assess HOA charges, and imposed quite a few guidelines and rules on what could possibly be performed by owners, together with regulating exterior home design and modifications, set up of fences, parking of trailers and boats, and trash/recycling. The Unique Restrictive Covenants didn’t specify a length for which they have been efficient.  Accordingly, by default underneath Massachusetts legislation (Mass. Gen. Legal guidelines ch. 184, §§ 26-30), the restrictions may solely be in place for 30 years, with an choice to increase for a further 20 years upon an proprietor vote and recording of a proper extension. (Observe that the restriction statute does not apply to condominiums). Though the Unique Restrictive Covenants supplied that the unique developer, his successors and assigns reserved the appropriate to “waive, alter, or amend” the restrictions, the doc critically failed to supply a transparent mechanism for if and the way the restrictions could possibly be prolonged sooner or later. In my scenario, the HOA tried to increase the time period of the covenants by the extra 20 years, however sadly did so properly after the unique covenants had already expired.

Berger v. 2 Wyndcliff LLC, Appeals Courtroom (2017)

Primarily based on my evaluation of present Massachusetts legislation, particularly new case legislation contemplating comparable restrictive covenants to the one right here, I concluded that the unique covenants had expired and that the try to increase them was futile. The difficulty is managed by a 2017 Appeals Courtroom determination, Berger v. 2 Wyndcliff, LLC, 92 Mass.App.Ct. 517 (2017) which holds that restrictive covenants can’t be prolonged except the unique covenants include a transparent mechanism for such extension.  

In Berger, in the middle of creating land in Acton, a developer executed an settlement of protecting covenants and easements for the good thing about future mortgagees, patrons, and house owners of the land. As is frequent, the covenants expressly supplied that they’re to “run with the land” and bind the events claiming underneath them “for a interval of thirty (30) years from the date these covenants are recorded.” The covenants restricted development on every lot to at least one single-family dwelling, with a two– or three-car storage.  The settlement supplied that they “could also be amended or revoked, in complete or partly, by an instrument signed by two thirds or extra of the then house owners of the tons coated hereby, stated modification or revocation to be efficient upon recording thereof on the … Registry of Deeds.”

Twenty one (21) years after the unique restrictions have been recorded, the house owners filed an modification to supply particularly that the unique length could be thirty years from the date the unique settlement was recorded, plus that the restrictions could possibly be prolonged for additional intervals of no more than twenty (20) years upon a adequate vote by house owners.  Shortly thereafter, the house owners recorded an extension doc purporting to increase the restrictions for the extra 20 years.  

In Berger, a disgruntled proprietor challenged the validity of the restrictions on the premise that they didn’t clearly present for a mechanism or proper to increase previous the 30 12 months time period. Each a Land Courtroom decide and an Appeals Courtroom panel of three justices agreed.  Because the Appeals Courtroom summarized, the relevant legislation on restrictions governing subdivisions (referred to additionally as a “frequent scheme”) is as follows:  “Restrictions on land are usually disfavored, and the Legislature has established procedures by which a landowner could take away or stop the enforcement of out of date, unsure or unenforceable restrictions. On the identical time, the Legislature has not precluded landowners from bargaining for, and imposing, useful land use restrictions that include a prolonged, however particular time period of length. One methodology the Legislature has employed to deal with these competing pursuits is to restrict enforcement of restrictions to 30 years usually and, whereas freely permitting longer durations, requiring landowners to adjust to sure particular steps ought to they need to impose restrictions lasting greater than thirty years.  Even restrictions that include an specific durational limitation in extra of 30 years might not be enforced for greater than 30 years except sure steps are taken.”

As famous above, Mass. Common Legal guidelines supplies a “sundown” requirement for all restrictions and extensions as part of subdivisions:  “No restriction imposed after December [31, 1961,] shall be enforceable . . . (b) after thirty years from the imposition of the restriction, except (1) the restriction is imposed as a part of a standard scheme relevant to 4 or extra parcels . . . and provision is made within the instrument or devices imposing it for extension for additional intervals of no more than twenty years at a time by house owners of file, on the time of recording of the extension, of fifty per cent or extra of the restricted space wherein the topic parcel is positioned, and an extension in accordance with such provision is recorded earlier than the expiration of the thirty years or earlier date of termination specified within the instrument . . . .” See Mass. Gen. Legal guidelines. Ch. 184, § 27

Within the Berger case, the Appeals Courtroom dominated that underneath the above statute, with the intention to impose a restriction for greater than 30 years, the instrument initially creating the restriction should embody a provision for extensions, and this one critically didn’t. The Courtroom additionally added that “the place extension provisions should not contained within the authentic instrument, the statutory scheme doesn’t enable subsequent amendments so as to add new provisions for extensions.” The Courtroom discovered the unique language wholly missing as to the appropriate to increase the place it solely supplied that the restrictions “could also be amended or revoked” and nothing extra. Thus, the covenants have been now void and unenforceable.

Influence and What Now?

It is a nice query. We at the moment are in 2024, so the 30 12 months interval underneath G.L. c. 184, § 26 would take us again to 1994.

Accordingly, any HOA Declaration of Restrictive Covenants recorded earlier than 1994, which was not correctly prolonged earlier than expiring or contained the deadly defect of not having an extension mechanism in any respect, is now prone to having expired unwittingly underneath the Berger ruling.

This case probably impacts a whole bunch of HOA’s in Massachusetts, with a good quantity of them being down the Cape, it seems. (Bear in mind condominiums are excluded from the restriction statute, in any other case this is able to be an entire catastrophe throughout the state).

My shoppers have been fairly shocked to study that almost all of their HOA covenants have been now void and unenforceable. After I say “most” I imply that the foundations that actively prohibit use of property, i.e, design and development guidelines, parking, leases and the like, can’t be enforced. Annual dues and assessments, frequent space upkeep, and many others. probably could be enforced as an “equitable servitude.”

Can a brand new set of restrictive covenants be recorded and carried out? I’m not so certain of that, given the state legislative coverage of setting a tough sundown expiration interval. I’m certain some HOA’s will attempt to get lot proprietor votes in place and file a brand new set of covenants as in the event that they have been authentic to the subdivision. We must see how this performs out on the registries of deeds and within the courts if these HOA covenants are challenged. I welcome the feedback from different conveyancing attorneys and title insurance coverage counsel.

In case your house owner’s affiliation is dealing with this situation otherwise you want additional steerage on this matter, please be at liberty to succeed in out to me at [email protected].



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