NY Appellate Court Grants Request to Enforce Height Limit on Neighbor’s Trees

This post was authored by Amy Lavine, Esq.

A dispute between neighboring property owners over the height of their trees was considered in a New York appellate court case decided in May. The parcels were originally part of the same residential subdivision and were subject to a restrictive covenant that included a vegetation height limit. Finding that the deed restrictions were valid and binding, the court granted the plaintiffs’ request to enforce the covenant and to require the defendant to trim his trees.

The plaintiffs had trimmed the trees on the defendant’s parcel for many years to enhance their views of a nearby lake. The defendant refused their request to continue trimming the trees when he began occupying his parcel on a full time basis around 2013, however. This prompted the plaintiffs’ lawsuit, which sought to enforce a vegetation height limit imposed on the properties under a restrictive covenant.

As the court explained, the properties had been created as part of the same 1947 residential subdivision and the original developer had imposed conditions on the deeds for each of the mapped lots, including a requirement “that no trees, shrubs or bushes, now existing or which may be hereafter planted upon said premises, shall be permitted to grow to a height of over [15] feet above the natural grade of the property at the point of planting.” For the plaintiffs to establish that the restrictive covenant was binding and ran with the land, they had to show by clear and convincing evidence that: “(1) the grantor and grantee intended the covenant to run with the land, (2) there is privity of estate between the parties to the current dispute, and (3) the covenant touches and concerns the land.”

With respect to intent, the deeds expressly stated that the covenant was intended to run with the land. They also suggested a “sense of permanency,” the court explained, since “the height restrictions pertain to trees ‘now existing or which may be hereafter planted,’ the stated intent is to ‘firmly bind and obligate [the purchaser], their distributees and assigns,’ the stated goal is to ‘[maintain] the high-class development,’ and waivers could be provided by the developer or its ‘successors, or assigns.'”

The court next explained that the plaintiffs were required to establish “vertical privity,” which arises when the “the party seeking to enforce the covenant has derived his [or her] title through a continuous lawful successor from the original grantor.” Because the properties both derived their title from the original subdivision, the court found that vertical privity was sufficiently established.

In considering final part of the test, the court rejected the defendant’s argument “that the restrictions only impose an affirmative obligation to trim the trees and does not touch or concern the land.” As the court explained, the deed restriction limited the property’s landscaping design in addition to requiring maintenance, and this was enough to “impact the use of the land.”

The court also concluded that the plaintiffs retained their right to enforce the restrictive covenant regardless of the defendant’s claim that several waivers had been granted and that various trees exceeded the 15-foot height limit throughout the neighborhood. Nothing about this evidence undermined the continued validity of the restrictive covenant or proved that it had been extinguished by the benefitted property owners. The defendant also failed to show that “the restriction has become valueless to the property of the plaintiff[s] and onerous to the property of the defendant[s].” As the court noted, photos of the plaintiffs’ previously unobstructed views demonstrated to the contrary that “restoration of plaintiffs’ lake view is of significant value to the use and enjoyment of their property.”

In a final point, the court held that the plaintiffs’ claim was timely under the six year statute of limitations, since the evidence showed that defendant’s breach of the restrictive covenant began in 2013. There was no evidence of delay or prejudice to substantiate the defendant’s claim of laches, moreover, nor was there proof that the plaintiffs’ had failed to comply with the covenant so as to bar their claims by reason of “unclean hands.”

 

Shea v Signal Hill Rd. LLC, 2019 NY Slip Op 03724 (3d Dept. 5/9/19).