141 Conn. App. 238
Conn. App. Ct.2013Background
- Plaintiffs Kepple appeal a trial court judgment upholding the defendants’ statute of limitations defense to a declaratory judgment action regarding a claimed visual easement.
- Subdivision is Great Bay Estates in Stonington; covenant recorded April 3, 1980.
- Covenant provisions: Lot C must build within 140 feet of the private road; Lot B has a remaining portion with a visual easement for Lots C and D; Lot A has height restrictions; covenants run with the land and may be released only by written consent recorded.
- Plaintiffs filed August 12, 2009 alleging interference with easement rights and seeking to confirm a visual easement; defendants counterclaimed that the covenant created private restrictions barred by § 52-575a and, if an easement existed, that it was extinguished by adverse possession.
- Trial court held the covenant created private restrictions, thus § 52-575a three-year statute barred the action; on appeal, this court reverses, finding a view easement over Lots A and B and that § 52-575a does not apply; remand for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the covenant create a view easement for plaintiffs over Lots A and B? | Kepple argues the language shows a view easement. | Dohrmanns/Lionellis contend it creates only private restrictions. | Yes; the covenant expressly grants a view easement over Lots A and B. |
| Is § 52-575a applicable if a view easement exists? | Kepple asserts § 52-575a does not apply to easements. | Dohrmanns/Lionellis argue § 52-575a bars actions enforcing private restrictions. | No; § 52-575a does not apply where a view easement is created. |
| Must enforcement rights or a right of entry be expressly stated to create an enforceable easement? | Kepple relies on implied enforcement/indexing rights from the deed language. | Dohrmanns/Lionellis argue explicit rights are required. | Not necessary; intent to create a view easement can be inferred from the covenant language. |
Key Cases Cited
- Wykeham Rise, LLC v. Federer, 305 Conn. 448 (Conn. 2012) (statutory interpretation and contract interpretation guidance in deed construction)
- Schwartz v. Murphy, 74 Conn. App. 286 (Conn. App. 2002) (restrictions can express intent to create a view easement even without explicit easement language)