Posted by: Patricia Salkin | August 1, 2018

CT Appeals Court Finds Restrictive Covenant was Unenforceable Due to a Permanent, Substantial Change in Circumstances

This post was authored by Matthew Loeser, Esq.

The Martins, landowners whose property was part of a former farm that had been turned into a subdivision, brought declaratory judgment action concerning the viability of a 70-year-old restrictive covenant limiting the number of dwellings and requiring a 25-foot setback and grantor approval of erection of structures. The Superior Court declared the restriction unenforceable, and the Martins’ neighbors appealed.

The neighbors first argued that the court erred by going beyond the four corners of the deeds in its interpretation of the “effect, if any” language in the Martins’ chain of title. The court found the descriptions of the restriction in the deeds conveying all or a portion of the land belonging to the parties were not consistent. The court found that language such as “effect, if any” in the deeds raised a question as to the applicability of the restriction to the present day. Due to that ambiguity in the deeds, the court held that it was not improper for the court to look beyond the four corners of the deeds to determine the intent of the parties to the deeds.

The neighbors next argued that the court erred by concluding that the restriction that encumbered the triangular area of land expanded to encumber the entire Webb subdivision when it was conveyed by the Shepherds to the Webbs. The court rejected this interpretation, as no portion of the deed set off and described a triangularly shaped area of land that by itself was subject to the restriction. Accordingly, the court held that the Superior Court did not err in finding that the entire premises purchased by the Webbs was subject to the restriction.

The neighbors lastly argued that the court improperly applied the facts of the present case. However, even assuming that the restriction was to benefit the Waterbury homestead from increased suburban density, the benefit was eroded when the Webbs created their own three lot subdivision on what was the Waterbury homestead. Although the Webbs’ deed contained the “effect, if any” restriction to the entire parcel, no one sought to enforce it when the Webbs subdivided their land or when more than one structure and a fence were erected on the plaintiffs’ land. The court therefore found that the restriction was abandoned when none of the owners of lots in either Briar Brae or the Webb subdivision sought to enforce it. As such, the court held the trial court properly determined that the restriction in the plaintiffs’ deed was not enforceable because its purpose had been frustrated by a substantial and permanent change in circumstances, abandoned by lack of enforcement, and did not benefit any land.

Bueno v Firgeleski, 183 A. 3d 1176 (Ct. App. 3/27/2018)


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