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Law School Case Brief

Sullivan v. O'Connor - 81 Mass. App. Ct. 200, 961 N.E.2d 143 (2012)


A conveyance of land by a developer that imposes a servitude on the land conveyed to implement a general plan creates an implied reciprocal servitude burdening all the developer's remaining land included in the general plan, if injustice can be avoided only by implying the reciprocal servitude. An implied obligation will exist where the declaration expressly creates an association for the purpose of managing common property or enforcing use restrictions and design controls, but fails to include a mechanism for providing the funds necessary to carry out its functions. When such an implied obligation is established, the lots are a common-interest community. 


In 1977, the Sullivans purchased property within the community at 14 Surrey Lane (the property). Their deed made a specific title reference to a 1947 deed from the Westwood Hills, Inc., to the association. The deed set forth restrictions on setbacks, subdivisions, and new construction, and a prohibition on commercial use without mention of membership or payment of dues to the association. Nevertheless, from their purchase, the Sullivans received notice of, and paid, semiannual assessments from the association. After June, 1983, the Sullivans ceased all payments and thereafter, on several occasions requested the association set forth a sufficient basis upon which it could enforce any assessments against the Sullivans. The association responded by sending letters from various trustees explaining the association's understanding of the 1929 trust declaration and enclosing a copy of it. In 1991, the association filed and recorded a "declaration of restrictive covenants," which was signed by every property owner in the community with the exception of the Sullivans. The trustees of the association filed suit against the Sullivans for their unpaid assessments. In return, the Sullivans filed for declaratory and injunctive relief, alleging that the Sullivans' deed does not contain any language that expressly requires membership in, or payment of assessments to, the association.


Were the Sullivan's required to pay the assessment?




The appellate court held they had to pay the assessments because (1) their property's title chain required a search for such duties, and (2) their receipt of private services for a substantial time and references to other restrictions gave actual knowledge of a duty to pay the assessments, which they had paid for six years. They also had to pay the assessments because a common scheme previously created existed when they bought the property. The assessments were also enforceable because (1) they had actual knowledge of the association, (2) obvious services gave notice that the property was in a private community, and (3) they paid the assessments for six years and used the association's services, showing acceptance of a duty to pay for the services. Mass. Gen. Laws ch. 184, § 28 did not terminate the assessments because the assessments were an equitable servitude, since (1) the owners took title with notice of their duties to the association, and (2) they paid the assessments for six years. They were not personally liable for the assessments because the assessments were only enforceable against the property.

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