The Massachusetts Superior Court recently issued a decision in Gikow v. Cleary LLC Associates, Inc., Essex Superior Court, Civil Action No. 2377CV00857, addressing the enforceability of a restrictive covenant and holding that abutters can enforce a deed restriction that purported to make a lot non-buildable.

The Superior Court’s ruling underscores the importance of careful drafting, review, and negotiation of restrictive covenants in Massachusetts real estate transactions.

Under Massachusetts law, deed restrictions created after December 31, 1961, that do not contain an express limitation of duration expire after 30 years. G.L. c. 184, § 23. G.L. c. 184, § 27 provides specific mechanisms for extending deed restrictions. Restrictions imposed after December 31, 1961, are enforceable for thirty years unless extended in accordance with the provisions of the statute: they must be recorded before the expiration of the thirty-year period, and the extension must comply with the statute’s detailed requirements (e.g. signed by persons entitled to the benefit of the restriction and describing the subject parcel and the instrument imposing the restriction). If these statutory requirements are not satisfied, the restriction expires and cannot be revived. In addition, Massachusetts courts have consistently held that expired restrictions cannot be unilaterally revived or extended. See Apfel v. Miller, 85 Mass. App. Ct. 450 (2014). Massachusetts courts have also held that an attempt to amend a restriction beyond its original thirty-year term is unenforceable where the original restriction did not include a provision for extension. Berger v. 2 Wyndcliff, LLC, 92 Mass. App. Ct. 517 (2017).

In Gikow, the dispute concerns Lot 61B, which was created when Cleary LLC subdivided the original Lot 61. Lot 61 was first developed in the 1950s as part of a subdivision and a 1955 deed conveying Lot 61 contained a land use restriction (the “1955 Restriction”) which reads as follows:

Said premises are conveyed subject to the restriction that they shall be used for no other purpose than the erection and occupancy of a single family home having a pitched room and appurtenant private garage which may be a separate unit or attached to said dwelling; further that such dwelling and/or garage shall be set back at least thirty feet from the street line and shall not be closer than fifteen feet on either side line.

Over the next several decades, through multiple conveyances, the 1955 Restriction was repeatedly incorporated into each deed. In 1970, Lot 61 was conveyed to its longtime owners, Edward Lawlor, Jr., and Jacqueline Lawlor, who lived together in the house on Lot 61 for almost thirty years, and when Mr. Lawlor died, Mrs. Lawlor continued to live on the property for another ten years. Then, in 2009, Mrs. Lawlor conveyed Lot 61 to Cleary LLC, which contains a land use restriction (the “2009 Restriction”), the language of which, although not identical, is very similar to the 1955 Restriction, and reads as follows:

Said premises are conveyed subject to restriction that they shall be used for no other purpose than the erection and occupancy of a single family home having a pitched roof and appurtenant private garage which may be a separate unit or attached to said dwelling. Further and no closer than 15 feet on either side line.

Following Cleary LLC’s purchase of Lot 61, it subdivided the property into Lots 61A and 61B. In 2010, Cleary LLC conveyed Lot 61A by deed, which, in 2016, was later conveyed to the Plaintiffs, Michael L. Gikow and Francine Fritsch Gikow, via deed. Neither of the aforementioned deeds contained any restrictions. In August 2023, Andover Community Trust Inc. (“ACT”) executed a purchase and sale agreement with Cleary LLC to purchase Lot 61B. Subsequent thereto, ACT filed an application with the Zoning Board of Appeals for a comprehensive permit pursuant to G.L. c. 40B to construct a single-family affordable house on Lot 61B. In response to the application, the Plaintiffs brought this action seeking to enforce the 2009 Restriction. ¹ ACT subsequently purchased Lot 61B by release deed which contained no restrictions.

The Parties agreed that the 1955 Restriction expired by operation of law. Pursuant to G.L. c. 184, § 23, restrictions that do not themselves contain an express limitation of duration expire after 30 years. Here, the 1955 Restriction was created by a deed executed on October 10, 1955, and it contained no limitation of duration. Therefore, the 1955 Restriction expired 30 years from its imposition, on October 10, 1985. The dispute turned solely on the validity of the 2009 Restriction.

The central dispute involved whether the 2009 Restriction was (1) a scrivener’s error unintentionally carrying forward the expired 1955 Restriction or (2) a newly created restriction intended by Mrs. Lawlor in the 2009 sale of Lot 61 to ACT. The court found that the Plaintiffs offered clear and convincing evidence that Mrs. Lawlor intended to include a new restriction in 2009. The court found that the differences in the wording in the 2009 Restriction were deliberate and witness testimony, attorney communications, and closing documents confirmed that the restriction was negotiated and imposed intentionally. On the other hand, the court found that ACT failed to produce evidence showing that the language of the 2009 Restriction was an error. Accordingly, the court held that the 2009 Restriction is a valid, enforceable restriction created in 2009, and not a revival or the expired 1955 Restriction.

The Defendants appealed the court’s decision, and we will continue to monitor the appeal and provide an update once a decision is issued. Nevertheless, the Superior Court’s ruling underscores the importance of careful drafting, review, and negotiation of restrictive covenants in Massachusetts real estate transactions. The decision reinforces a significant principle: even a restriction embedded in an old deed—and one that closely resembles a long-expired covenant—may still be fully enforceable if a court finds it was intentionally reimposed, and that intent can be established through evidence outside the record title (e.g. witness testimony). This development presents serious implications for developers as traditional title searches may not reveal such restrictions. In addition to zoning appeals, abutters may now have an additional avenue to oppose development through deed restrictions that may have been quietly revived without notice.

¹While this case was pending, the Zoning Board of Appeals voted unanimously to deny ACT’s requested relief, which ACT appealed to the Housing Appeals Committee. The appeal is still pending.