151 Conn.App. 433
Conn. App. Ct.2014Background
- Harms and Torrey, along with the Averys, purchased a 55.72 acre parcel in 2003 as co-owners with intent to create three lots and preserve open space.
- Draft deeds later changed by the defendants’ attorney altered a term from a ‘reasonable setback’ to a fixed 100 feet from Winchester Road and designated enforceors, without the defendants’ input or understanding.
- The defendants built a house and outbuildings on their four-acre lot, including a pole barn that violated the restrictive covenant limiting to one dwelling and two outbuildings.
- After plaintiffs notified the defendants of the pole barn violation, the defendants began constructing a stone wall along portions of their property near Winchester Road.
- Plaintiffs amended the complaint to allege the wall is a new permanent structure within 100 feet of Winchester Road, violating the restrictive covenant.
- The trial court found the pole barn violated the covenant and ordered removal, but held the wall was not a permanent structure and denied punitive damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the stone wall is a permanent structure | Avery/Harms: wall is permanent under covenant definition | Medina: wall is not permanent given surroundings and lack of concrete core | Wall is a permanent structure |
| Whether the court erred on factual findings about the wall | Harms: concrete core and size show permanence | Medina: no concrete core; findings supported | Findings reversed in part; wall is permanent |
| Whether punitive damages were appropriate | Punitive damages warranted for reckless conduct | No wanton/malicious conduct; no punitive relief | Punitive damages affirmed to be unavailable; remanded for injunctive relief only |
| Effect of drafting/representation on enforceability of deed restrictions | Harms drafted the deed without defendants’ input, affecting enforceability | No separate impact required for the outcome | Review declined on this issue; no impact on result |
Key Cases Cited
- Zirinsky v. Carnegie Hill Capital Asset Management, LLC, 139 Conn. App. 706 (2012) (permanent structure analysis; gravity can fix structures to land)
- LePage Homes, Inc. v. Planning & Zoning Commission, 74 Conn. App. 340 (2002) (definition of permanent in planning/land use context)
- American Brass Co. v. Serra, 104 Conn. 139 (1926) (fence as not permanent structure; old standard on permanence)
- Remillard v. Remillard, 297 Conn. 345 (2010) (contract interpretation; ordinary meaning; ambiguous terms favor drafter)
- Honulik v. Greenwich, 293 Conn. 698 (2009) (contractual language interpreted by ordinary meaning; restrictive covenants)