Homeowner Seeks to Enforce Covenant Banning Pools in Massachusetts Real Estate Action

A restrictive covenant is a binding legal obligation that relates to the use of the land.  Typically, restrictive covenants are written into the real estate deed to the property.  In some situations, a plaintiff may sue to enforce a covenant against the owner of property subject to a restrictive covenant, as in an August 9, 2019 Massachusetts property case.

Both of the parties in the case resided in a subdivision abutting a country club and golf course.  When the homes were sold, the subdivision developer imposed a No Pools Restriction on the lots. The defendant knew about the restriction when he bought the property but began building a pool anyway.  The plaintiff filed a lawsuit in Land Court to enforce the restrictive covenant and enjoin the defendant from completing the pool.

In Massachusetts, although landowners are not precluded from bargaining for and enforcing beneficial land use restrictions, restrictions on land are generally disfavored.  To promote the reasonable use of land and increase the marketability of land impaired by obsolete restrictions, Massachusetts has enacted a statute that limits the right to enforce restrictive covenants on real property.  The defendants in the case agreed that their property was subject to a restrictive covenant but argued that this statute applied to prevent the plaintiff from enforcing the restriction at issue.

To enforce a restrictive covenant, the limiting statute requires that the restriction must be of an actual and substantial benefit to the person claiming the right to enforce it.  In the case, the Land Court concluded that the plaintiff would recognize an actual benefit from the restriction because she, like the defendant, owned a golf course lot, and the restrictions were intended to benefit the owners of the golf course lots and the country club. The court also noted that retaining the common scheme of the subdivision is recognized as a substantial benefit by Massachusetts courts.

The second part of the limiting statute concerns the desirability of the restriction.  If the character of the neighborhood has since changed so as to reduce the need for the restriction, or if it would be inequitable to enforce the restriction based on the conduct of the plaintiff, or if the plaintiff is no longer subject to the restrictive covenant, or enforcement of the restriction would impede the reasonable use of the land, the restriction may not be enforced.  The Land Court concluded that there was no evidence to support a finding that the subdivision had changed in character.  The court also determined that the plaintiff had not violated any restrictive covenant herself, nor was there sufficient evidence of inequitable conduct on the part of the plaintiff.  Accordingly, as the limiting statute did not apply, the court entered a judgment in favor of the plaintiff to enforce the restriction.

At Pulgini & Norton, our Massachusetts real estate attorneys can assist you in furthering your property goals.  Our experienced team handles a diverse range of residential property matters, from home sales and mortgage financing to building permit applications and foreclosure proceedings.  If you are seeking guidance from a knowledgeable real estate attorney, contact Pulgini & Norton by phone at (781) 843-2200 or online and request a free consultation today.

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