Massachusetts state law prohibits covenants that could last forever

Case description here was previously posted but this is an update/correction.

Massachusetts statutes limit covenants to 30 years if they contain no time limitation.  Mass Gen. Laws ch. 184, §23. There is an exception for covenants in transfers for public, charitable or religious purposes. Restrictions may be extended beyond thirty years only if, prior to the thirty year time has passed, a majority of the owners agrees to allow extensions for twenty years at a time and the extension is recorded. Mass. Gen. Laws ch. 184, §27(b). The statute allows further extensions on the same conditions, i.e, that a majority of the owners votes to extend the restrictions for another 20 years and that they record their agreement before the end of the 30 year period since the last extension.

In Berger v. 2 Wyndcliff, LLC, 2015 WL 1775527 (Mass. Land Ct. 2015), the Massachusetts Land Court read these two statutes together to find that there must be some time limit on restrictions for extensions to be valid. The court explained:

"General Laws c. 184, ß 27, allowing for extensions, must be read in harmony with G.L. c. 184, ß 23, limiting restrictions without a term to thirty years. Permitting restrictions to be extended for successive periods of twenty (20) years at a time, ad infinitum, creates a permanent restriction. It would be anomalous to restrict to thirty years a restriction that the parties intended to last permanently, while allowing one party to create a permanent restriction when the parties originally agreed that the restriction would last only thirty years. Therefore, a restriction can only allow for extensions if it states an outside term of the restriction, even if greater than thirty years, and requires the first extension to be filed before the expiration of an original thirty year term."

Not a clearly correct interpretation of the relevant statutes but an attempt by the judge to reconcile conflicting policies designed both to limit the time when restrictions limit land use while giving owners the power to renew those restrictions for successive limited time periods. The case demonstrates the hazards of statutory drafting as well as the tension between the older view of covenants as 'burdens" on land ownership with the newer view that sees them as valuable property rights that should be encouraged rather than discouraged.