Don Pinto Quoted in Massachusetts Lawyers Weekly: 'New' Deed Restriction Enforceable, Judge Determines

Excerpted from the November 5, 2025 online edition of Massachusetts Lawyers Weekly.

A Massachusetts Superior Court judge ruled that abutters can enforce a 2009 deed restriction preventing construction on a disputed Andover lot. The restriction, placed on “Lot 61B,” resembled, but was not identical to, an earlier 1955 restriction that had expired in 1985. When Andover Community Trust, Inc. (ACT Inc.) purchased the lot and sought to build on it, neighbors argued the 2009 restriction made the parcel non-buildable.

ACT Inc. claimed the 2009 restriction was merely a mistaken copy of the expired 1955 version. Judge Elizabeth A. Dunigan disagreed, finding no evidence of a scrivener’s error and concluding that the 2009 restriction was intentionally created as a new limitation. Testimony also showed the seller in 2009 would not have conveyed the property without including the restriction.

Pierce Atwood attorney Donald R. Pinto Jr., who litigates land use disputes, said, “the issue — how different a future restriction must be in order to constitute a ‘new’ enforceable restriction rather than simply an unlawful attempt to revive an expired one — appears to be one of first impression in Massachusetts.”

Don noted that “real estate litigators will want the decision appealed in hopes of getting a binding decision that clarifies the applicable standard in such cases,” and went on to ask, “Must a new restriction be materially different from the expired restriction? Substantially different? What factors will courts consider in applying this standard? Will a new restriction that’s imposed shortly after the expiration of a prior restriction be treated differently than one that’s imposed years or decades later? Is there some amount of time … after which even an identical restriction could be reimposed and treated as ‘new’? Answers to these and similar questions would be invaluable to practitioners dealing with expired restrictions.”

Click here for the complete article by Massachusetts Lawyers Weekly author Eric T. Berkman.