Abel v. Johnson

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ABEL V. JOHNSON—DISSENT

BEACH, J., concurring in part and dissenting in part.
I agree with the facts reported in the majority opinion
and with most of the principles of law stated therein.
I also agree with the analysis so far as it goes. The
majority’s analysis stops, however, with the conveyance
from the original grantors, Horace Havemeyer and
Harry Waldron Havemeyer, to Empire Estates, Inc.
(Empire), reported in volume 792, page 118, of the Stam-
ford land records.1 The majority correctly concludes, in
my view, that the plaintiffs have no standing to enforce
restrictive covenants in the capacity of successor to
any party to the transaction between the original grant-
ors and Empire; the covenant between the original
grantors and Empire restricting the conveyed property
to residential use was ‘‘exacted by a grantor from his
grantee presumptively or actually for the benefit and
protection of his adjoining land which he [retained].’’
(Internal quotation marks omitted.) Contegni v. Payne,
18 Conn. App. 47, 51, 557 A.2d 122, cert. denied, 211
Conn. 806, 559 A.2d 1140 (1989).
Empire, however, later subdivided its property.
Empire caused a map of the subdivision to be recorded
and every newly created lot was subject to identical,
or substantially identical, restrictions. The restrictions
in the deeds provided that the lots were ‘‘conveyed
subject to . . . restrictive covenants and agreements
as contained in a deed from . . . [the original grantors]
. . . to Empire Estates . . . and recorded in the land
records . . . and the terms of a declaration [at volume
917, page 114].’’ The former set of restrictions are those
referenced in the original grantors’ deed, and recorded
in volume 792, page 118 of the land records. They
include the recitation that the ‘‘deed is given and
accepted upon the following express covenants and
agreements which shall run with the land herein con-
veyed and shall be binding upon the grantee, its succes-
sors and assigns, and shall enure to the benefit of the
remaining land of the grantors. . . . 1. Said premises
shall be used for private residential purposes only . . .
and no buildings shall be erected or maintained upon
said premises except single-family dwelling houses and
appropriate outbuildings. 2. Said tract shall not be sub-
divided for building purposes into plots containing less
than one (1) acre in area, and not more than one (1)
such dwelling house shall be erected or maintained on
any such plot.’’
The second set of restrictions referenced in the deeds
to the lots comprising the subdivision are recited in a
declaration recorded at volume 917, pages 114–18, of
the land records. The parties agree that the second
set of restrictions, imposed by Empire’s trustees, were
imposed pursuant to a common scheme of development
and, thus, are enforceable by subsequent owners of lots
within the subdivision. See DaSilva v. Barone, 83 Conn.
App. 365, 371–73, 849 A.2d 902, cert. denied, 271 Conn.
908, 859 A.2d 560 (2004); Contegni v. Payne, supra, 18
Conn. App. 52–54.
The language in the deeds by which Empire conveyed
the lots in the subdivision stated that the lots were all
‘‘subject to’’ two sets of restrictions. A dispositive issue
presented is whether the language in the deeds stating
that the conveyed lots were ‘‘subject to’’ the original
grantors’ restriction had the effect only of providing
notice of the prior restrictions to grantees or whether
the language also had the substantive effect of creating
new obligations on the grantees and their successors.
Or, stated differently, the issue may be phrased as
whether Empire had the intent to impose the common
restrictions referenced in the original grantors’ deed.
‘‘The owner’s intent to develop the property under a
common scheme is evidenced by the language in the
deeds. . . . [T]he determination of the intent behind
language in a deed, considered in the light of all the
surrounding circumstances, presents a question of law
on which our scope of review is plenary.’’ (Citation
omitted; internal quotation marks omitted.) Cappo v.
Suda, 126 Conn. App. 1, 8, 10 A.3d 560 (2011).
A useful discussion appears in 1 Restatement (Third),
Property, § 2.2, comment (d), pp. 63–64 (2000): ‘‘The
term ‘subject to’ can be used either to create a servitude
or to disclose the fact that land conveyed is already
burdened by a servitude. Since the term is ambiguous,
courts must look to the surrounding circumstances to
determine whether the parties used it with intent to
create a servitude. . . . If the land conveyed was
already burdened by such a servitude, the ‘subject to’
language is often included to qualify the grantor’s cove-
nant against encumbrances, rather than to create a new
servitude. However, the circumstances that the prop-
erty was already burdened by a servitude of the type
described is not determinative. Other circumstances,
such as the fact that the language is used in convey-
ances that effectuate a new subdivision of land, may
justify the inference that the parties intended to create
new servitudes for the benefit of the other lot owners
in the subdivision.’’ (Emphasis added.)
Comment d, illustration 3, to § 2.2 of the Restatement
provides further insight: ‘‘Developer acquired a 40-acre
parcel ‘subject to’ a restriction to residential uses only.
The parcel had been burdened with such a servitude
restriction 10 years earlier. In the absence of circum-
stances indicating a different intent, the conclusion is
justified that the conveyance to Developer was not
intended to create a new servitude. Developer then
subdivides the parcel into 40 lots, according to a
recorded plot map, and conveys each lot ‘subject to’ a
restriction to residential uses only. The circumstances
justify the conclusion that the conveyances of the subdi-
vided lots are intended to create new servitudes benefit-
ing the other lot owners in the subdivision.’’ Id., illustra-
tion (3), p. 64.
The conclusion that Empire intended to create a com-
mon scheme of development, maintaining the restric-
tion that only residential uses were allowed, is justified.
First, as noted in the Restatement, the recitation of the
‘‘subject to’’ restriction in the context of the creation
of a subdivision itself supports the conclusion that the
restriction is part of the common scheme of develop-
ment. Second, the second set of restrictions in the
deeds, newly created by Empire, reinforces the conclu-
sion. This second set contains thirty-five articles, most
of which dictate requirements governing the construc-
tion and maintenance of ‘‘houses’’ and ‘‘house sites.’’
Other articles refer to pets allowed in ‘‘the family dwell-
ing,’’ the length of ‘‘any dwelling,’’ and surveys for ‘‘pro-
posed dwellings.’’ The scheme clearly contemplates res-
idences; there are no articles regarding commercial use
or regulation of businesses.
Additionally, equity favors the standing of lot owners
to enforce the restrictive covenants. It is not disputed
that the restrictions substantially were uniform as to
the lots in the subdivision, and each lot was conveyed
subject to the original grantors’ restriction.2 Where
there is a uniform scheme of development, ‘‘any grantee
may enforce the restrictions against any other grantee.’’
(Internal quotation marks omitted.) DaSilva v. Barone,
supra, 83 Conn. App. 373. ‘‘The doctrine of the enforce-
ability of uniform restrictive covenants is of equitable
origin. The equity springs from the presumption that
each purchaser has paid a premium for the property
in reliance upon the uniform development plan being
carried out. While that purchaser is bound by and
observes that covenant, it would be inequitable to allow
any other landowner, who is also subject to the same
restriction, to violate it.’’ Contegni v. Payne, supra, 18
Conn. App. 52. Regardless of the genesis of the first
restrictive covenant, all of the owners in the subdivision
were obligated to abide by it, and equity favors their
ability to enforce it.
Several cases in Connecticut jurisprudence are con-
sistent with the conclusion that the restriction as to
residential use only is enforceable by a lot owner within
the subdivision. See Maganini v. Hodgson, 138 Conn.
188, 192–93, 82 A.2d 801 (1951) (land deeded to devel-
oper restricted to residential use; developer imposed
further restrictions on deeds to lots within subdivision:
‘‘[w]hen, under a general development scheme, the
owner of property divides it into building lots to be sold
by deeds containing substantially uniform restrictions,
any grantee may enforce the restrictions against any
other grantee’’); Mellitz v. Sunfield Co., 103 Conn. 177,
182, 129 A. 228 (1925) (restrictions for common benefit
of all subsequent lot owners ‘‘create a right or interest
in them in the nature of an easement which will be
enforced in equity against the grantee of one of the
other lots’’); 5011 Community Organization v. Harris,
16 Conn. App. 537, 540, 548 A.2d 9 (1988) (restrictions
in common scheme of development benefit lot owners);
see also Prime Locations of CT, LLC v. Rocky Hill
Development, LLC, 167 Conn. App. 786, 796 n.10, 145
A.3d 317, cert. denied, 323 Conn. 935, 150 A.3d 686
(2016).3
I would conclude, then, that the plaintiffs had stand-
ing to enforce the restriction regarding residential use,
and I agree with the findings and conclusions of the
trial court as to enforcement of the restriction, except as
limited by the majority opinion in part II of its opinion.
I, therefore, concur, in part, and respectfully dissent,
in part.
1
The restriction was amended in volume 808, page 355. The amendment
is immaterial to the analysis of the issues in the present case.
2
The majority suggests that even though the restrictions emanating from
the original grantors ‘‘might apply with equal force to the parties and others
in their subdivision, it cannot reasonably be suggested that the plaintiffs
have the right to enforce them.’’ In my view, the majority overlooks the
clear language in DaSilva v. Barone, supra, 83 Conn. App. 372, and Contegni
v. Payne, supra, 18 Conn. App. 51: where there are ‘‘uniform covenants
contained in deeds executed by the owner of property who is dividing his
property into building lots under a general development scheme,’’ covenants
may be enforced by those mutually bound. All of the factors listed in DaSilva
and Contegni suggesting the existence of a common scheme are satisfied,
and none of the negative factors exist. The majority and I disagree as to
whether the original grantors’ covenants are contained in deeds exacted by
Empire and whether equity favors the ability of those bound by common
covenants to enforce those covenants.
3
The majority goes to great lengths to distinguish the cases cited. I agree
that the cases are not binding precedent but, rather, are only illustrative.