Property II, Pages 598–600

Garland v. Rosenshein

Supreme Judicial Court of Massachusetts, 1995


Defendant purchased property, which had a restriction against developing it in conjunction with an adjoining parcel, for $775,000. He then tried but failed to purchase the adjoined land from Decoulos. Defendant then sold the property to North Shore for $1,250,000 subject to a restriction which prohibited North Shore and its successors from developing it with the adjoining land. Defendant owns no land which is benefited by the restriction.

North Shore then sold the property subject to the restriction for $1,675,000. The new purchaser defaulted on his mortgage; the FDIC foreclosed on the mortgage, took title to the property, and was unable to sell the property since it could not deliver it free of the encumbrance; and finally plaintiffs purchased the land for $550,000 subject to the restrictions.

Procedural History:

A judge in the Land Court declared the restriction invalid because it was of no "actual and substantial benefit" to the defendant within the meaning of G.L.c. 184, § 30 (1992 ed.), or in the alternative, because the restriction constituted an unreasonable restraint on alienation.


Is the restriction enforceable against plaintiffs even if it gives defendant no benefit?


Plaintiff admittedly owns no land which is benefited by the restriction. The only possible benefit is what someone might pay defendant to release the restriction. This benefit is instead personal and therefore does not run with the land.


LexisNexis IconWestLaw LogoGoogle Scholar LogoPage 599, Paragraph 3

A restriction may be enforced only if it "is at the time of the proceeding of actual and substantial benefit to a person claiming rights of enforcement."