Neighbor's Deed Restriction On My Property

by Geoff
(Massachusetts)

Visitor's Question: My neighbor subdivided his Massachusetts lot 40 years ago creating my adjacent lot. His deed restricts my building any structures on the lower half of my property, near his.

But neither my deed, nor any other document I found, mentions this. Is his deed restriction valid on my property?

Editors' Reply: The immediate answer to this question is that you should consult a Massachusetts attorney.

Having said that, we will make a few observations. First and foremost, our understanding is that in Massachusetts, privately imposed deed restrictions, such as this one, expire or "sunset" in 30 years. So you may be in the clear to do whatever you like.

The next observation is that in most of the U.S., this deed restriction still would be entirely valid. It is probably an error that this restriction is not shown right on your deed, but a title search at the time of purchase should have definitely exposed this provision.

A third and final observation about this particular instance is that in a state other than Massachusetts, it is still perhaps pretty easy to remedy this situation. If the original owner of your property, your current neighbor, now is in agreement with what you would like to do on your property, the two of you could have an attorney draft up an easy fix for the situation. On the other hand, if your neighbor opposed what you would like to do (in a state other than Massachusetts), you usually would not be able to take a unilateral action to remove the deed restriction.

While Massachusetts courts are clarifying that the 30-year rule does not apply to conditions that were imposed by a governmental body (such as zoning, site plan approval, subdivision approval, and so forth), the expiration date appears to apply for the original questioner.

Many times a deed restriction serves a worthy goal, such as preservation of certain critical environmental features, but for many other situations, they create a layer of complication that is not at all transparent for neighbors or successor property owners who were not on the scene at the time the restrictive covenant was applied.

All of this causes us to offer the opinion once again on this website that deed restrictions can really lead to plenty of problems and perceived unfairness. We hope property owners everywhere will seek a publicly enforceable action to accomplish what they would like, whenever such a course of action is available to them.

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