45 Conn. App. 319 | Conn. App. Ct. | 1997
Opinion
The plaintiff appeals from the judgment of the trial court granting the defendants’ motion for summary judgment. On appeal, the plaintiff claims that the trial court improperly found that the restrictive covenant at issue did not run with the land and thus improperly granted the defendants’ motion for summary judgment. We agree with the plaintiff and reverse the judgment of the trial court.
The following facts are necessary for a proper resolution of this appeal. The plaintiff owns a hilltop lot, designated as lot no. thirteen, which overlooks Long Island Sound. The defendants own a lot designated as lot no. twelve, which is located next to and downhill
All of these lots and several others were once owned by Hudson Nut Products, Inc. (Hudson Nut). The first of these lots to be sold by Hudson Nut was lot no. fourteen. Lot no. fourteen was sold to Keith and the deed contained several restrictions and covenants. Paragraph eight
When Hudson Nut subsequently sold lots no. twelve and thirteen, the covenants and restrictions from the Keith deed were either copied or incorporated by refer
In the trial court, the plaintiff claimed that the covenant restricting vegetation and building height found in paragraph eight of the defendants’ deed ran with the land and thus applied to the defendants for the benefit of the plaintiffs land. Further, the plaintiff claimed that the defendants had improperly allowed trees, shrubs and other vegetation on their land to grow to a height that blocked the plaintiffs view of Long Island Sound and thus violated the restrictive covenant. The trial court found that paragraph eight of the defendants’
The question of whether a restrictive covenant runs with the land is “resolved by ascertaining the intent of the parties as expressed in the deed. . . . This intent is determined by considering the language and the relevant portions of the deed in light of the then existing situation of the property and the current surrounding circumstances.” (Citations omitted.) Stiefel v. Lindemann, 33 Conn. App. 799, 805-806, 638 A.2d 642, cert. denied, 229 Conn. 914, 642 A.2d 1211 (1984). “The words used by the parties must be accorded their common meaning and usage where they can be sensibly applied to the subject matter of the contract.” (Internal quotation marks omitted.) Leonard Concrete Pipe Co. v. C. W. Blakeslee & Sons, Inc., 178 Conn. 594, 598, 424 A.2d 277 (1979). “The determination of the intent expressed in a deed presents a question of law.” Stiefel v. Lindemann, supra, 806.
It is well settled that where a restrictive covenant contains words of succession, i.e., “heirs and assigns,” a presumption is created that the parties intended the restrictive covenant to run with the land. See Kelly v. Ivler, 187 Conn. 31, 39-40, 450 A.2d 817 (1982); Pulver v. Mascolo, 155 Conn. 644, 650-51, 237 A.2d 97 (1967); Chappell v. New York, New Haven & Hartford R. Co., 62 Conn. 195, 202-203, 24 A. 997 (1892); Stiefel v. Lindemann, supra, 33 Conn. App. 806.
Although the defendants’ deed may represent an inartful way of accomplishing the purpose of protecting the higher lots’ view from interference by the growth of plant life and structures on the lower lots, we find that this purpose is obvious and clear. The statement in paragraph eleven that other restrictions run with the
Therefore, in light of the surrounding circumstances and the language used in the covenant, we conclude that paragraph eight of the defendants’ deed is a restrictive covenant that was intended to, and does, run with the land.
The judgment is reversed and the case is remanded with direction to deny the motion for summary judgment and for further proceedings in accordance with this opinion.
In this opinion the other judges concurred.
Paragraph eight of the Keith deed states: “Except for existing trees which may be maintained at their present height, no trees or shrubs shall be maintained nor shall any building be constructed on Lot No. 15 or on Lot No. 18 higher than the present level of the ground floor of the house on Lot No. 14 above described. No tree or building shall be erected or maintained on the above described Lot No. 14 higher than the level of the ground floor of the house to be erected on Lot No. 13, except for existing trees and buildings which may be maintained at their present height.”
Paragraph eleven of the Keith deed states: “The foregoing covenants, except for Paragraph 8 and the exception contained in Paragraph 10, shall be real covenants running with the land and will be binding upon all future owners of property lying on the roadway running to Compo road in a Northerly, Westerly, Northerly again, and Easterly direction to a traffic circle at the end of said road, except that the covenants contained in Paragraph 8 shall be real covenants running only with Lots Nos. 14, 15 and 18 and shall run only with the title to these three (3) lots.”
Paragraph eight in the subsequent deeds such as the Kramers’ deed states: “Except for existing trees, which may be maintained at their present height, no trees, shrubs or buildings shall be erected or maintained by the Grantees, their heirs and assigns on the land purchased and to be purchased by the Grantees under an existing option, higher than the level of the ground floor of the house to be erected on Lot No. 13.”
Paragraph eleven in the subsequent deeds such as the Kramers’ deed states: “The foregoing covenants, except for Paragraph 8 and the exception contained in Paragraph 10, shall be real covenants running with the land and will be binding upon all future owners of property lying on the roadway running to Compo Road in a Northerly, Westerly, Northerly again and Easterly direction to a traffic circle at the end of said road.”