Posted by: Patricia Salkin | July 23, 2009

Medical Doctor’s Use of Home to See Patients Permitted Where Restrictive Covenants Ambiguous

The defendant, a medical doctor, uses her primary residence – where she resides with her husband and children – to see zero to two patients per day in her family room.  She has no professional listing in the telephone book and no signs advertising her practice. Although she received a special permit from the municipality to see patients, a neighbor brought an action to enjoin the activity based on applicable restrictive covenants, which, if clear and unambiguous would trump local zoning.

 The relevant covenants provide in part:

“1. The premises hereby conveyed shall be used for residential purposes only.”…

8. No business and/or commercial enterprise of any description shall be conducted or carried on upon said premises….The use of any portion of said premises for the raising or care of any animals for commercial purposes is prohibited…nor shall the premises be used for the business of any hospital, either public or private, for the care of those suffering from any disease or diseases…”

The appeals court held that the covenants are ambiguous and do not unequivocally prohibit the subject use of the residence. The Court noted that while covenant 8 specifically excluded businesses and commercial enterprises that would have a significant impact on traffic and noise in the neighborhood, it does not specifically exclude professional work.  The Court reasoned that the inclusion of covenant 8 would have been unnecessary if covenant 1 were to be read as excluding all nonresidential activity.  Since covenant 8, while excluding a hospital, does not specifically exclude a limited medical practice, the Court resolved the ambiguity in favor of the free use and enjoyment of the property, thereby allowing the use to continue.

Rautenstrauch v. Bakhru, 2009 WL 1957717 (N.Y.A.D. 2 Dept. 7/7/2009)

The opinion can be accessed at:


  1. I’ve never commented on any of the daily readings; however, I’m at a loss as to how the court couldn’t read Covenant 1 as excluding all nonresidential activity. For “residential purposes only” seems to be simple and properly descriptive. To my reading it seems obvious that the contested use is simply not a residential use/activity. While Covenant 8 doesn’t appear to provide an exhaustive list of specific exclusions, the first sentence cited – with the use of wording such as “of any description” – could stand alone without any following verbiage and provide clarity for any perceived amabiguity. I don’t see how anyone desiring the protections and lifestyles of a residential unit in a community established and governed by an offering plan’s covenants and restrictions would find in the text I read any misdirection related to permitted uses of the residential units. What am I missing?

  2. I don’t think you are missing anything…I was surprised too!

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