KeywordsReal Property, Conservation restriction. Practice, Civil, Findings by judge, Presumptions and burden of proof. Waiver

“In this case, we interpret a conservation restriction (restriction) voluntarily placed on a parcel of real property owned by the defendant, Cedar Hill Retreat Center, Inc. (Cedar Hill).  The plaintiff, Wildlands Trust of Southeastern Massachusetts, Inc. (Wildlands Trust), contends that a Superior Court judge incorrectly construed certain provisions of the restriction, and that, as a result, the judge erred in determining that Cedar Hill did not violate the restriction.  We agree that the judge’s interpretation of one provision of the restriction was inconsistent with its plain meaning.  However, we affirm the judgment because we agree with the judge that Wildlands Trust did not prove that Cedar Hill committed a breach of the restriction as properly construed.”

The Appeals Court here offers a very helpful overview of conservation restrictions governed by G.L. c. 184, §§ 31-33, best described as “negative easements”, under which the fee owners of the restricted land retain possessory interests in the land while non-possessory interests are owned and enforceable by the owner of the conservation restriction (typically a governmental agency or conservation trust). The points of abrasion that often occur typically require an analytical reconciliation of (a) uses by the fee owner and (b) the specific terms and provisions of the restriction. In this case, the Appeals Court found no violation of the covenants embodied in the restriction.

Click here for the full decision of the Appeals Court.

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