A landowner sued his neighbors seeking injunctive relief to enforce restrictive covenants barring construction on their property in order to protect his views of the adjacent ocean. The trial court granted an injunction and the neighbors appealed.
Plaintiff, Cullen, owned property overlooking the ocean as well as an improved property (Hammersmith lot) to the south in 2002. Before sale of the Hammersmith lot, Cullen executed a declaration containing various restrictions in order to protect the vantage point of Cullen’s other property. The restrictions limited construction to one portion of the parcel and limited the footprint (including porches and decks) to 3,500 square feet and an additional 1,000 square feet for accessory structures. The land was sold in 2003 and the buyers were informed that they would have to abide by the applicable restrictive covenants. In 2005, intermediary purchasers sold the Hammersmith lot to the defendant, Tarini. Tarini was notified of the restrictions prior to closing on the purchase.
There was some dispute about what was discussed and when over the course of three meetings prior to the building process however, Cullen testified that in November 2008, he was first able to observe and become concerned regarding the scope of the construction. After Cullen had a survey performed that revealed violations of the declaration, he filed an appeal to the Newport Zoning board of Review from the issuance of defendants’ building permit. In February 2009, Cullen filed a complaint in Superior Court for Tarini’s violations of the restrictive covenant. A preliminary injunction was granted and any further work performed by defendants was to be done at their own risk. At trial defendants conceded to violating the restrictive covenants in the following ways: (1) exceeding the 4,500 square foot restriction for the house footprint; (2) eight percent of the room exceeds the building limit; and (3) six point five percent of the structure spills over into the “no build” area. However, defendants argued, due to the doctrine of estoppel, Cullen’s conduct constituted a waiver whereby he waived objection to the violations. The trial judge determined that the restrictions in the declaration were unambiguous and that Tarini had not acted in good faith. It was also found that Tarini did not meet his burden of proof for his equitable defenses. Cullen’s intent to preserve his view was clearly indicated in the restrictions so violation of the restrictive covenant could not be adequately compensated by damages; thus there was no requirement to balance the equities in this case.
On appeal to the Rhode Island Supreme Court, the defendants’ argued that the trial justice granted injunctive relief without proof of irreparable harm to plaintiff. Secondly, they argued that factual findings by the trial justice were incorrect, specifically in regard to whether or not plaintiff had adequate notice of their construction plans and if he communicated his intention to strictly enforce the restrictions. The Court determined that in contrast to the defendants contentions, the plans given to plaintiff were not sufficient to indicate any violation of restrictions; for example they did not indicate square footage. Furthermore, the evidence supported the trial judge’s finding that once plaintiff became aware of the violations, he rapidly took action in November 2008. Furthermore, findings indicated that the defendants were aware of the covenants during most of the construction process. The court thus found no legitimate reason to find error in the trial justice’s determinations of fact.
Defendants argued that injunctive relief was improper because plaintiff did not suffer irreparable harm; however it is undisputed that the purpose of the covenant was to protect the plaintiff’s view of the ocean. According to the Restatement (Third) Property if the purpose for which a restrictive covenant was created continues to exist, injunctive relief is an appropriate remedy so since the enforcement supports plaintiff’s purpose here injunctive relief is proper. In regard to equitable enforcement of covenants, courts have extensive leeway; however it may be influenced by the following factors: purpose of the servitude, conduct of the parties and costs and benefits of enforcement to the parties. However the benefit of this analysis normally leans more in favor of a party who was unaware that he was encroaching on the property or rights of another. Here this benefit cannot be afforded to Tarini because he has openly indicated that he was aware of violations and waited for plaintiff to discover them on his own.
Cullen v Tarini, 15 A.3d 968 (RI 3/7/2011).
The opinion can be accessed at: http://www.courts.ri.gov/Courts/SupremeCourt/OpinionsOrders/pdf-files/09-224.pdf
