VIRGINIA COLEMAN v. ERIC HOAGLAND (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, the trustees of the 51 Sherman Street Condominium Trust (Sherman trustees), appeal from a judgment entered in the Superior Court on cross motions for summary judgment declaring, inter alia, that they have no easement or other interest in the property of the defendant, Observatory Hill Development, LLC (Observatory Hill).⁴ The judgment further declared that a 1997 recorded “Indenture of Easements” (indenture) purporting to grant mutual easement rights to the former owners of the condominium property and Observatory Hill's property is null and void. Because we conclude that the discovery rule applies to the applicable statute of limitations on the Sherman trustees’ claim for reformation of the indenture and that there is an outstanding question of material fact as to when the owners of the condominium property should have known of the alleged error in the recorded indenture, we vacate the judgment and remand for further proceedings.⁵

Background. The Sherman trustees manage and maintain the property at 51 Sherman Street (51 Sherman),⁶ which houses a two-unit residential condominium structure. Observatory Hill owns an abutting property, 253-265 Walden Street (253 Walden), which is permitted for a twenty-seven-unit residential apartment building and is currently under construction. Because the title history to the properties is relevant to the issues before us, we begin by reviewing that history.

Both properties were owned in the early 1990s by Masse's Hardware Company (Masse's Hardware). On July 1, 1993, Masse's Hardware transferred 51 Sherman to David W. Masse, individually; on August 14, 1996, Masse transferred the property to Kyle Gale and Donald C. Foote, III. On January 24, 1997, a few days before Gale and Foote submitted their property to the provisions of the Condominium Law, G. L. c. 183A, Gale and Foote and Masse, individually, executed the indenture granting the owners of 51 Sherman (Gale and Foote) an easement over a narrow strip of 253 Walden “for the purpose of enhancing the aesthetic appearance of the sideyard of [Gale and Foote's lot] by planting, grassing, and landscaping said strip of land, provided said planting, grassing, and landscaping does not interfere with Masse's maintenance of” the warehouse building, “Masse Hardware.” The indenture, which was recorded in the Middlesex registry of deeds, also provided rights to Masse to use the sideline of Gale and Foote's property to access the building on 253 Walden for maintenance and repair purposes.

Masse, however, did not actually own 253 Walden when the indenture was executed and recorded in 1997. From 1970 to December 2012, Masse's Hardware was the record owner of 253 Walden, not Masse, individually.⁷

On December 17, 2012, Masse's Hardware transferred 253 Walden to 249 Walden Street, LLC, which sold it to Observatory Hill on November 3, 2016. Although the deed to Observatory Hill does not specifically mention the indenture, it does state that the property is shown on a 2016 plan filed with the Middlesex South Registry of Deeds which shows the easement with a book and page reference to the 1997 indenture.⁸ It is undisputed, however, that Masse, individually, did not own 253 Walden when the indenture was executed and recorded in 1997.

When the parties could not agree on the scope of the trustees’ easement, Observatory Hill discovered that Masse, individually, did not own 253 Walden when he executed the 1997 indenture. The Sherman trustees commenced this action seeking a declaratory judgment that the trust property benefits from an easement over 253 Walden on theories of: (1) express easement; (2) reformation of the indenture due to mutual mistake; (3) easement by estoppel; or (4) easement by prescription. The Sherman trustees also sought injunctive relief and damages for trespass and private nuisance.⁹

Citing Bank of Am., N.A. v. Casey, 474 Mass. 556, 567 (2016) (Casey), the judge determined that the cause of action for reformation was barred by the six-year statute of limitations because constructive notice of the mistake arose “ ‘by operation of law under G. L. c. 183, § 4.’ ” In other words, because the indenture was recorded, the parties had immediate notice of the error and the cause of action for reformation accrued upon recording and expired in 2003, six years after the indenture was recorded.¹⁰ The judge also rejected the Sherman trustees’ express easement, easement by estoppel, and prescriptive easement claims. Further, the judge determined that the Sherman trustees’ tort claims based on the purported easement failed because they could not establish an easement, and he ruled in favor of the defendants on those claims as well.

Discussion. We review a decision on cross motions for summary judgment de novo, viewing the evidence “in the light most favorable to the party against whom summary judgment was entered” (citation omitted). Berry v. Commerce Ins. Co., 488 Mass. 633, 636 (2021).

On appeal, the plaintiffs address only their reformation claim.¹¹ Reformation is an appropriate remedy where, because of mutual mistake, a deed did not convey the land that the seller intended to sell and that the buyer intended to buy. See Crowley v. Holdsworth, 264 Mass. 303, 308 (1928).¹² The Sherman trustees argue that their claim for reformation of the indenture was improperly dismissed as time-barred because the judge misinterpreted Casey, 474 Mass. at 567, and erroneously ruled that their claim automatically accrued upon the recording of the indenture in 1997. For the following reasons, we agree that the judge erroneously ruled that the claim accrued upon the recording of the indenture.¹³

It is well-settled that “in Massachusetts and many other jurisdictions, ․ the statute of limitations does not begin to run against an equitable cause of action for the reformation of an instrument because of mistake ․ until the mistake has been or ought to have been discovered.” Stoneham Five Cents Sav. Bank v. Johnson, 295 Mass. 390, 395-396 (1936). See Hendrickson v. Sears, 365 Mass. 83, 91 (1974) (applying discovery rule to action against attorney for negligent certification of title to real estate). See also Franz v. Franz, 308 Mass. 262, 266 (1941) (“fact that the parties accepted [and recorded] the deed phrased in language not in accord with their directions and intentions is not a ground for refusing reformation of the deed”).

It is true that in the ordinary course “[a]s applied to the chain of title to real property, constructive notice arises by operation of law under G. L. c. 183, § 4, in any case where the mortgage is properly recorded.” Casey, 474 Mass. at 567. However, Casey does not address when a cause of action accrues for purposes of reforming a recorded deed for mutual mistake. See American Oil Co. v. Cherubini, 351 Mass. 581, 588 (1967) (statute of limitations did not bar action to reform recorded lease to correct mistake in description of land where “[t]he first occasion which the plaintiff would have had to check the sufficiency of the description of the land was its search of the title subsequent to the exercise of its option to purchase”). Thus, to the extent the judge held that the cause of action accrued upon the recording of the deed, we disagree; rather the cause of action for reformation of the deed accrued when the mutual mistake was or should have been discovered because a reason to check the sufficiency of the indenture arose. See id.

The Sherman trustees argue that the condominium trust has owned the property since January 1997 and has had no reason to check the sufficiency of the deed and discover the mutual mistake. We are not persuaded. On the question of the trust's ownership, it is unclear from the record that the Sherman trustees “own” the condominium property. As noted in note 6, supra, according to the condominium documents, the trust was the managing entity of the condominium's common areas and was authorized to bring legal actions concerning the common property. The master deed, however, defined the common areas as including the land, and provided that each unit has a fifty percent interest in the common areas. We are unable to determine from the record whether the trustees’ assertion that they took title to the condominium property in 1997 and never had cause to examine the title to the property or the indenture again is correct.

It is undisputed that there have been a number of conveyances of the individual condominium units. Each deed included the unit's fifty percent interest in the common areas and facilities of 51 Sherman. Moreover, the condominium documents provided that each new unit owner or their designee becomes one of the two trustees of the condominium trust. Although the trustees have changed with each transfer of title, to the extent that they are also the unit owners, they have had the same knowledge as the unit owners with respect to the property. Even were we to accept that the trustees have consistently owned 51 Sherman, the inference that they then would have had no reason to examine the indenture over the years is not compelled on this record.

On appeal, the defendants contend that there are disputed material facts on the issue of when the Sherman trustees should have discovered the alleged error in the indenture. We agree. The record is silent on the question, among others, whether with each sale of the units, a title search was or should have been done such that the owners of the units, and the trustees, knew or should have known of the mistake years ago. Accordingly, summary judgment should not have entered in favor of the defendants on the reformation claim and we vacate so much of the judgment that dismisses the reformation claim. Given that the judge's decision on the reformation claim was dispositive with respect to the plaintiffs’ tort, declaratory, and injunctive relief claims related to the purported easement should the indenture be reformed, we also vacate so much of the judgment as relates to those claims and remand for further proceedings consistent with this memorandum and order. We affirm so much of the judgment on counts one and two as relates to the plaintiffs’ own property.¹⁴

So ordered.

FOOTNOTES

4.   The defendant, Eric M. Hoagland, is a manager of Observatory Hill. For convenience, we refer to Hoagland and Observatory Hill collectively as Observatory Hill or the defendants.

5.   We acknowledge the amicus brief submitted by the Real Estate Bar Association for Massachusetts, Inc. and the Abstract Club.

6.   The 51 Sherman Street Condominium Trust is the “organization of Unit Owners as required by [G. L. c. 183A],” created for the purpose of managing and regulating 51 Sherman Street Condominium ․ established and created by a Master Deed executed” by the owner of the property (Gale and Foote). See Trustees of Cambridge Point Condominium Trust v. Cambridge Point, LLC, 478 Mass. 697, 702 (2018) (“The [Condominium Act] declares that the ‘organization of unit owners,’ as defined in G. L. c. 183A, § 1-- here, the trust -- has the power to ‘manage, and otherwise deal with’ common areas and facilities of the condominium. G. L. c. 183A, § 10 [b] [1]”). Pursuant to the trust instrument and G. L. c. 183A, § 10, the trust is specifically authorized to conduct litigation regarding the common areas. Article 5.1 of the trust instrument grants the trustees “the sole control and management of the common areas and facilities ․ as those terms are defined in [c. 183A] and in the Master Deed establishing the Condominium.” Under both G. L. c. 183A, § 10 (b) (4), and the trust instrument, the trustees’ powers included conducting litigation on behalf of the unit owners involving the common areas. Importantly, the master deed here defines the common areas as including the land, and each unit has a fifty percent interest in the common areas - - and in the condominium trust. Each unit owner has the right to appoint one trustee and unless the owner appoints someone else as trustee, the first named owner on the unit deed is deemed to be the trustee. Upon sale of a unit, the trustee representing the unit shall be deemed to have resigned and the new owner shall be designated as trustee or shall appoint one. We discern nothing in the trust documents whereby the unit owners transfer the property to the trustees, though it is abundantly clear that they have granted the trust control of the common property.

7.   Masse's Hardware was voluntarily dissolved on March 29, 1996. Nonetheless, it was “revived” on February 12, 2012, for a one-year period for the limited purpose of “conveying title to real property owned by the corporation which should have been conveyed to its sole stockholder,” Masse, when Masse's Hardware was dissolved. Although we have recognized an equitable doctrine that “upon the dissolution of a corporation, all debts having been paid and no receiver having been appointed, the property of a dissolved corporation passes to its former shareholder[ ],” in this case, Masse, that rule does not apply during the three-year winding up period following dissolution. Pagounis v. Pendleton, 52 Mass. App. Ct. 270, 276 (2001).

8.   There is no argument on appeal that the reference on the plan to the indenture resolved the mistake on the indenture.

9.   The Sherman trustees’ trespass and nuisance claims (counts one and two, respectively) asserted violations as to the purported easement as well as to their own property. The parties entered into a stipulation to dismiss with prejudice the tort claims related to the Sherman trustees’ property prior to entry of final judgment.

10.   The Sherman trustees argued in the Superior Court that the twenty-year statute of limitations for recovery of land pursuant to G. L. c. 260, § 21, applied, but the judge rejected that argument on the basis that the plaintiffs were not suing to enforce the terms of the indenture but were seeking to reform the instrument. The judge thus applied the six-year statute of limitations contained in G. L. c. 260, § 2, but noted that even if a twenty-year statute of limitation applied, the suit was commenced twenty years and five months after the indenture was recorded. The plaintiff does not argue on appeal that the twenty-year statute of limitations applies and, thus, we do not address that issue.

11.   Because the condominium trustees make no argument on appeal on their claims of estoppel, express easement, and easement by prescription, they are waived. See O'Connor v. Kadrmas, 96 Mass. App. Ct. 273, 281 n.14 (2019).

12.   Although the defendants suggest on appeal that there is a question of fact as to whether there was a mutual mistake warranting reformation, Masse's deposition testimony was that he believed the indenture correctly identified the owner of 253 Walden when he signed the indenture, and the judge found that the indenture “served no logical purpose unless there was a mutual mistake with respect to the grantor.” Nonetheless, the judge found that the merits of the reformation claim were subject to a genuine issue of material fact and focused his decision on the statute of limitations issue. Should the judge determine on remand that the statute of limitations has not run on this claim, the merits of the claim will need to be addressed.

13.   Where the statute of limitations was raised and argued at summary judgment, we do not view the Sherman trustees’ reliance on additional cases on appeal as raising “new arguments” not raised before the Superior Court judge as the defendants contend.

14.   We deny the defendants’ request for attorney's fees.