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Massachusetts Homeowners Operating Commercial Dog Breeding Business Found Incompatible with Deed Restrictions

In Massachusetts, a residential real estate property may be subject to restrictions contained in the deed, as well as other zoning and land use regulations.  In Clish v. Paradise (Mass. Land Ct. Jan. 9, 2017), the Massachusetts Land Court decided a dispute involving neighboring residents of a subdivision development.  The plaintiffs brought suit, alleging that the defendants were operating a commercial dog breeding and sales operation out of their home, in violation of the deed limiting the property to residential use. dogs

In Clish, the deed of the property at issue contained a restriction that “the property so conveyed shall be used only for residential home construction.”  The defendants argued that the language of the restriction only limits what can be constructed or built on the property, and it does not relate to the use of the property.  The land court, however, found that this interpretation would render the restriction meaningless, since all of the lots containing the restriction were purchased with residential single-family homes already built on them.  In addition, the court found that the purpose of the deed restrictions was to assure residents of the subdivision, including the plaintiffs, that they would be purchasing and living in a home in a residential neighborhood with the characteristic appearance and activities of the same.  Accordingly, the land court held that the deed restriction limited the use of the property to residential use.

The subsequent issue for the land court was whether the defendants’ activity on the property was commercial in nature, and if so, whether their activity was incompatible with the residential use restriction.  In reviewing the evidence, the court observed that the structure of the operation involved breeding several puppy litters a year of approximately six and nine puppies per litter, as well as ongoing and well-marketed sales, including a website advertising the business.  The defendants also had a business license to sell the dogs and reported their income from the sales on their tax returns for several years.  Based on the large number of dogs and profit generated, the court concluded that the defendants were in fact engaged in a commercial dog breeding operation.

In determining whether the defendants’ dog breeding operation was incompatible with the residential use restriction, the court noted the intrusive effects of keeping too many dogs on the property, the increased traffic in the neighborhood, and the sales transactions taking place on the property.  While the court did not find it necessary to enjoin the defendants from all of their breeding activities or advertising, it did hold that it would limit the number of dogs on the property and prohibit business transactions from taking place on the property, including contract signings or visits from prospective buyers.  The court requested that the parties’ attorneys confer to agree as much as possible on the details of its judgment.

Enlisting the services of a real estate lawyer can help you determine whether there are any restrictions regarding the use or development of your property.  The Massachusetts land use attorneys at Pulgini & Norton provide counsel to individuals engaged in a range of real estate transactions, including home and condominium purchases, mortgages and refinancing, permit applications, and more.  To schedule your consultation, call Pulgini & Norton at (781) 843-2200 or reach us online through our website.

More Blog Posts:

Massachusetts Appeals Court Holds Plaintiff’s Adjacent Lots Merged with Common Ownership in Zoning Case, Massachusetts Real Estate Lawyer Blog, published July 26, 2016

Massachusetts Homeowners Win Breach of Contract Claim Against Corporation in Property Dispute, Massachusetts Real Estate Lawyer Blog, published September 5, 2016

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