Opinion
No. CV 03 0091521S
May 23, 2005
MEMORANDUM OF DECISION
This is an action to enforce restrictive covenants in a deed. Both parties presented evidence at trial, submitted extensive post-trial briefs, and then engaged in oral argument at a later time.
The plaintiffs, Roger and Laura Cannavaro, own and reside at property in the Town of Washington which is adjacent to property owned by the defendant, Washington Community Housing Trust, Inc. The defendant is a non-profit organization formed for the purpose of providing affordable housing within the Town of Washington. The defendant has constructed an eleven (11)-unit apartment building which it is renting as affordable housing. The plaintiffs claim that this use is in violation of restrictive covenants in the defendant's chain of title which limit the use of the defendant's property to school purposes or no more than two single-family dwelling houses. The plaintiffs seek a permanent injunction restraining the defendant from continued violation of the restrictive covenants. The defendant argues that 1) the restrictive covenants are not subject to enforcement by the plaintiffs, 2) the defendant has not violated the restrictive covenants, 3) the equities do favor enforcement of the covenants, and 4) public policy dictates that the covenants not be enforced.
Facts Found
By deed dated December 24, 1951 and recorded on April 15, 1952, Norman Couch conveyed to Allen N. Couch and Barbara M. Couch residential property off of Church Street in the New Preston section of the Town of Washington ("the plaintiffs' property"). In 1984 that property was sold to Warren F. and Blanche Cook who sold the property to the plaintiffs in 1986. The plaintiffs have lived there ever since.
In 1953 the Town of Washington owned approximately 1.25 acres of land located adjacent to the plaintiffs' property known as the "New Preston School property" on which the New Preston school was located. By deed dated June 16, 1953 and recorded on June 16, 1953, Norman Couch conveyed to the Town of Washington an adjacent piece of land of approximately 2.19 acres ("the restricted property"). This deed contained the following language ("the restrictive covenants"):
Said premises are further subject to the following rights and restrictions which shall be covenants running with the land for the benefit of Allen N. Couch and Barbara M. Couch owners of the adjoining premises, their heirs and assigns, who shall have full right of enforcing the same, which said rights shall be binding upon the grantee, its successors and assigns in favor of said adjoining premises:
1. No business of any kind shall be conducted upon said above described and granted premises and said premises shall not be used for commercial purposes of any kind.
2. The grantee shall maintain the present roadway in a reasonably good state of repair and suitable for vehicular travel by the said Allen N. Couch and Barbara M. Couch, their heirs and assigns.
3. The grantee shall erect and maintain a tight woven fire fence along the entire southerly boundary of said premises dividing it from the adjoining premises of the said Allen N. Couch, et ux, except across said roadway, which fence shall be of sufficient height and of suitable construction to prevent trespass by the school children upon said adjoining premises of Allen N. Couch, et ux.
4. Said above described premises are intended to be used solely for school purposes, but in the event the grantee, its successors or assigns, discontinue such use, said premises shall be used and occupied only for residential purposes; and not more than two single-family dwelling houses, each with a private garage not to exceed a capacity of three automobiles each, may be erected upon said premises.
In 1986 the Town of Washington sold the New Preston School property and the restricted property (referred to collectively as "the Montessori property") to the Washington Montessori Association, Inc. which continued to use both pieces for school purposes. This deed states that the conveyance is subject to the restrictive covenants in the 1953 deed from Norman W. Couch to the Town of Washington. By deed dated September 2, 2003 the Washington Montessori Association, Inc. sold the Montessori property to the defendant subject to the same restrictive covenants.
Sometime in November 2001 the defendant decided to proceed with plans to buy the Montessori property and use it for affordable housing. At about this time, the plaintiffs became aware that the Washington Montessori Association, Inc. was contemplating selling the Montessori property to the defendant. At about this same time, the plaintiffs became aware of the restrictive covenants on the restricted property. In the plaintiffs' chain of title there is no mention of the restrictive covenants. Early in 2002 the defendant notified the plaintiffs and other owners in the neighborhood that it was contemplating purchasing the Montessori property for affordable housing. There was at least one neighborhood meeting at which the defendant explained its plan and solicited comments. The plaintiffs attended one such meeting in May 2002 and expressed opposition to the plan which called for the apartment buildings to straddle the boundary between the New Preston School property and the restricted property. By letter dated May 1, 2002 an attorney representing the plaintiffs wrote to the attorney representing the Washington Montessori Association, Inc. to explain that the plaintiffs intended to enforce the restrictive covenants if the restricted property was used for anything other than school uses. Soon thereafter, the defendant modified its plans so that none of the apartment buildings would be located on restricted property.
In August 2002, before it had taken title to the Montessori property, the defendant made application to the Washington Zoning Commission for permission to build and operate affordable housing rental units on the New Preston School property with septic system and parking lot located on the restricted property. The plaintiffs attended the public hearing and expressed opposition. On January 29, 2003 the defendant obtained zoning approval to construct eleven residential units on the New Preston School Area property and a septic system, parking area, dumpster pad, and underground propane tank on the restricted property. The plaintiffs did not appeal that decision.
This action was commenced shortly after the defendant purchased the Montessori property for $800,000 cash in September 2003. The complaint in this case was served with an application for a temporary injunction to stop all construction on the project. The plaintiffs did not pursue this application. The project was constructed during the pendency of this case at a cost to the defendant of approximately $2,500,000 cash. Nine apartments had been rented at the time of trial. The apartment will be operated by a management company hired by the defendant.
The apartments themselves are located on the New Preston School Area property which is not subject to the restrictive covenants. The septic system, a 15-car gravel parking area, a paved garbage dumpster pad, a fire lane access drive, drainage facilities, and some site lighting, all servicing the apartments, are located on the restricted property.
Enforceability
The defendant's first line of defense is that the restrictive covenants are not enforceable because the grantor of the covenants, Norman Couch, did not have any legal or equitable interest in the plaintiffs' property at the time the covenants were created. Norman Couch conveyed the plaintiffs' property in 1951 and then created the restrictive covenants in the 1953 deed to the Town of Washington. The covenants specifically state that they run with the land "for the benefit of Allen N. Couch and Barbara M. Couch owners of the adjoining premises, their heirs and assigns, who shall have full right of enforcing the same, which said rights shall be binding upon the grantee, its successors and assigns in favor of said adjoining premises." The defendant argues that current real estate law in this state does not recognize the creation of restrictive covenants in the way done in this case because Norman Couch no longer owned the adjoining premises (now the plaintiffs' land) at the time of the 1953 deed.
The defendant relies primarily upon Contegni v. Payne, 18 Conn.App. 47 (1989). That case presents a factually complex situation, only a small portion of which is applicable here. In that case, the plaintiffs attempted to enforce a deed restriction which limited a subdivision lot to one residential dwelling. The defendant proposed to subdivide the lot and build two houses. First the court explained the theories of enforceability available to the plaintiffs:
In general, restrictive covenants fall into three classes: (1) mutual covenants in deeds exchanged by adjoining land owners; (2) uniform covenants contained in deeds executed by the owner of property who is dividing his property into building lots under a general development scheme; and (3) covenants extracted by a grantor from his grantee presumptively or actually for the benefit and protection of his adjoining land, which he retains. (Citations omitted; internal quotation marks omitted.)
Id. at 51.
The court rejected enforcement under the first two theories. In connection with the retained land theory, the court stated as follows:
Where the owner of two adjacent parcels conveys one with a restrictive covenant and retains the other, whether the grantor's successor in title can enforce, or release, the covenant depends on whether the covenant was made for the benefit of the land retained by the grantor in the deed containing the Covenant, and the answer to that question is to be sought in the intention of the parties to the covenant expressed therein, read in light of the circumstances attending the transaction and the object of the grant. If the covenant is for the benefit of the retained land it runs with the land and may be enforced by the successor in title to the retained land against the successor in title to the conveyed land, on the principal which prevents one with notice of the just rights of others from defeating those rights. (Internal citations omitted; internal quotation marks omitted.)
Id. at 61.
The restrictive covenants in this case do not fall within the three classes set forth in Contegni. The first two classes are clearly inapplicable because there was never an exchange of deeds between adjoining land owners nor was there a subdivision of land. Finally, the third class, the retained land theory, does not apply because Norman Couch did not have any retained land at the time he conveyed the restricted property. In Contegni, enforcement was permitted by those plaintiffs whose title had derived from people who owned both the benefitted and restricted parcels when the restrictive covenants were created. Id. at 62. On the other hand, the court rejected enforcement by those plaintiffs whose situation was the same as the plaintiffs in this case. Id. at 62.
The plaintiffs argue that the retained land theory as expressed on Contegni is no longer good law in light of the Supreme Court's abandonment of the "unity of title doctrine" in Bolan v. Avalon Farms Property Owners Association, Inc., 250 Conn. 135 (1999). Bolan dealt with an access easement created at a time when the grantor of the easement did not own both the servient estate, and the dominant estate the easement was intended to serve. The owner of the servient estate created the easement by filing a map of his own property showing the easement to benefit the dominant estate which he did not own. The Supreme Court stated:
We can discern no reason to adhere to the unity of title doctrine and ignore the expressed intention of the parties to the defendant's deeds. We conclude, therefore, that the unity of title doctrine should be abandoned and that the intent of a deed creating an easement should be effectuated even if no unity of title exists between the servient estate and the dominant estate the easement is intended to serve.
The defendant argues that Bolan does not apply to this case because it involved an easement rather than a restrictive covenant. But, the defendant was not able to cite any case law which supports making this distinction. It appears to be a distinction without a difference under current law. The Restatement (Third) of Property. Servitudes, which was relied upon heavily by the Supreme Court in the Bolan case, defines easements and restrictive covenants as types of "servitudes." § 1.2 and 1.3. The Restatement makes no distinction between types of servitudes in their creation. § 2.6(2) provides that "[t]he benefit of a servitude may be granted to a person who is not a party to the transaction that creates the servitude." Comment (e) to § 2.6 states:
[T]he parties to a transaction creating a servitude may freely create benefits in third parties, whether the servitude is a covenant, easement, or profit. If their intent is expressed, and other requirements for creating a servitude have been met, the benefits in third parties will be given effect.
Under the modern view reflected in Bolan and the Restatement, the restrictive covenants imposed on the New Preston School Property in 1953 were to benefit the plaintiffs' land then owned by Allan and Barbara Couch and their successors in title as third-party beneficiaries. As noted in Comment (a) to § 2.6 of the Restatement:
In the 20th century, the prohibition on creating rights in third parties has almost completely disappeared with the development of third-party-beneficiary doctrine in contracts law. The third-party-beneficiary doctrine provides the basis for recognizing that servitude benefits of all types can be created in favor of persons, either in gross or as holders of interests in land, who are not otherwise parties to the transaction.
Based upon the change in the law announced in Bolan, the plaintiffs have the authority to enforce the restrictions that are the subject of this action.
For an incisive law review article which covers all of the cases dealing with the "unity of title" doctrine, and argues that the Connecticut courts have misunderstood this area of the law, see, J. Starble, "Dis-Unity of Title in Connecticut: A Tale of Supreme Confusion Over Easement Law," 75 Connecticut Bar Journal No. 2, 61 (2001).
Violation of the Restrictive Covenants A. Business or Commercial
The plaintiffs argue that the defendant is violating the restrictive covenants in that: 1) the apartments on the New Preston School property are a "business" and a "commercial use," and therefore, 2) the use of the restricted property for supporting infrastructure must also be a "business" and "commercial" use.
The specific language of the restrictive covenants is that "no business of any kind" may be conducted on the restricted property and that the "premises shall not be used for commercial purposes of any kind." Is an 11-unit apartment building a business or commercial use as those terms are used in the restrictive covenants? When deciding this issue it is black letter law that: "In construing a deed, a court must consider the language and terms of the instrument as a whole. Our basic rule of construction is that recognition will be given to the expressed intention of the parties to a deed . . . and that it shall, if possible, be so construed as to effectuate the intent of the parties . . . In arriving at the intent expressed . . . it is always admissible to consider the situation of the parties and the circumstances connected with the transaction, and every part of the writing should be considered with the help of the evidence." (Internal quotations marks and citations omitted.) Mackie v. Hull, 69 Conn.App. 538, 542 (2002).
Because these are restrictive covenants, there are additional rules of construction that apply: "Restrictive covenants, being in derogation of the common-law right to use land for all lawful purposes, are to be narrowly construed and are not to be extended by implication. If their language is of doubtful meaning, it will be construed against rather than in favor of the covenant." Neptune Park Assn. v. Steinberg, 138 Conn. 357, 361 (1951).
In considering the language and terms of the restrictive covenants, the court is faced with the problem that words used in one context may have different meanings in another context. "A word is not a crystal, transparent and unchanged. It is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used." Towne v. Eisner, 245 U.S. 418, 425 (1918) (Holmes, J.). The plaintiff is right that an apartment rental has a "commercial" aspect in the sense that rent is paid by the tenant in exchange for the right of possession. The rental of apartments can be a "business." But, it is also true that an apartment is a residence for the tenant. The actual use of the property is residential in nature, not commercial. There is no business or commercial activity taking place on the property as those words are normally used.
The court is required to narrowly construe the language of the restrictive covenants. Here, narrowly construing the words "business" and "commercial" leads to the conclusion that the apartment building is a residential use rather than a business or commercial use. The fact that rent is charged does not automatically change a residence into a business or commercial use. Otherwise, homes in residence zones could never be rented under most zoning regulations because commercial uses are prohibited in most residential zones. Using the plaintiffs' argument, even one rental house on the New Preston School property would be enough to cause a violation of the restrictive covenants if the septic system, driveway or parking area were located on the restricted property. This is an expansive reading of the restrictive covenants, not a narrow one.
The plaintiffs rely heavily on the case of Mellitz v. Sunfield Co., 103 Conn. 177 (1925). The case involved the use of three lots for a gasoline service station. One lot was restricted to residential use. The defendant constructed a crushed stone driveway on that lot for use by its patrons in gaining access to and from the service station and the gas pumps on the adjoining lots. In reversing the trial court's denial of an injunction, the Supreme Court held that the restricted lot should not be used for any purpose associated with the business use of the adjoining parcels. The court's reasoning was that the driveway was an integral and valuable part of the defendant's business. Therefore, it amounted to a business use. Id. at 184-85.
But, Mellitz only applies if the New Preston School property is being used for a business or commercial purpose. Because I have already found that the use of the New Preston School property for an affordable housing apartment building is not a business or commercial use as those words are used in the restrictions, the Mellitz case is not helpful to the plaintiffs. If the use of the New Preston School property is residential, then the supporting amenities on the restricted property are residential as well. There is no violation of the restrictions against business or commercial use.
B. Two Single-Family Dwelling Houses
The plaintiffs argue that there is a violation of the restrictive covenant which states that the restricted property "shall be used and occupied only for residential purposes . . . not more than two single-family dwelling houses . . ." in the event that school purposes are discontinued. The discussion above sets forth the court's finding that the apartment building on the New Preston School property is a residential use. But, whether the supporting use of the adjoining New Preston School property is "more than two single-family dwelling houses" is a different issue.
The plaintiffs, of course, argue that the apartment building is "more than two single-family dwelling houses" so that the supporting amenities on the restricted property are in violation of the requirement of "not more than two single-family dwelling houses." The plaintiffs rely on a 1942 Superior Court case in which the court held that restrictions which provided that the premises shall be used "solely and wholly for residential purposes" and that no structure shall be erected "other than a one family dwelling house . . . conforming to and in harmony with existing structures in this tracts," prohibits the use of the premises as a roadway connected an adjoining development similarly restricted. Maloney v. Veggo F. Larsen Co., 11 Conn.Sup. 166 (1942). But, this case is distinguishable even if it does reflect the current state of the law. In Maloney the restriction had specific language limiting structures to a one-family dwelling house. There is no limitation of this kind in the present case. The restrictive covenant simply states that there shall be "not more than two single-family dwelling houses." Construing this language narrowly, as the court must, there is no violation because the use for parking, septic, etc. is not more than two single-family dwelling houses. It is even less than one single-family dwelling house. The site plan and photos of the area show that, apart from the small parking area and the dumpster pad surrounded by a stockade fence, the New Preston School property is a slopping grassed lawn, much less intensively used than if two residences were built on the property.
A more recent case which provides some guidance is 5011 Community Organization v. Harris, 16 Conn.App. 537 (1988). In that case, a parcel of land was restricted to "only one dwelling house shall be erected on said lot either a single or a two-family house . . ." There was a stated restriction on commercial uses. The defendant proposed to build a Burger King restaurant on an adjoining lot and to use the restricted property for a parking area, menu board, microphone for drive-through orders, lights and brick trash enclosure. The trial court held, and the Appellate Court affirmed, that the restrictions did not prohibit the use of the restricted property for these purposes because a restrictive covenant which limits the number and nature of residential dwelling houses does not prohibit the use of the restricted property for parking, even commercial parking. Id. at 541. "Courts have construed similar restrictions to limit only the nature of the dwellings and conclude that they did not restrict other uses of the land." Id.
Here, as discussed earlier, there is a restriction on commercial and business uses. But, in accordance with my previous reasoning, the parking area on the restricted property is in support of a residential use, not a commercial use. I can see no reason why the present restrictions would prohibit the use of the restricted property for a small parking for the adjacent residential apartment use. The same reasoning should apply to the other uses of the restricted property for a septic system, dumpster pad, and underground propane tank. All of these support a residential use and do not violate the restriction on the number of single-family homes.
There is no reason to address the defendant's other defenses, Judgment will enter for the defendant.
BY THE COURT,
John W. Pickard