Opinion
No. CV 09 5011888
April 21, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT [#114]
I FACTS
The plaintiff, Betsy A. Perry, commenced this action by service of process on the defendants, Craig S. Wilson and Shelly W. Wilson, on May 6, 2009. In count one of the complaint, the plaintiff alleges the following relevant facts. The plaintiff is the owner in fee simple of property known as 15 Eden Park Drive in Salem, which is shown as "Parcel E" on a certain map on file in the town clerk's office in Salem. The defendants are the owners in fee simple of property known as 18 Eden Park Drive in Salem, which is shown as "parcel 1 of Tract D" on another map on file in the town clerk's office in Salem, map 6D. The defendants' title to their property devolved to them by virtue of a series of conveyances. The most recent conveyance alleged is a warranty deed from Milton O. Clark to Craig S. Wilson and Shelly W. Wilson, which is dated November 27, 2007, and recorded in the Salem land records on November 29, 2007. This conveyance was made subject to "Building restrictions as more particularly set forth in deed from Sidney F. Strongin, et al, Trustees to Nellie Friedland dated 9/4/53, and recorded 9/12/53 in Volume 13, page 2 of the Salem CT land records . . ." (Internal quotation marks omitted.) (Complaint, Count 1, ¶ 4(a).) Prior to that conveyance in 2007, the plaintiff alleges a series of conveyances leading up to that conveyance, only one of which contains a specific reference to building restrictions. That conveyance is the "quitclaim deed from Sidney F. Strongin, Nellie Friedland, and Dora V. Strongin, all the former directors and trustees in dissolution of Eden Park, Inc. to Nellie Friedman, dated September 4, 1953 and recorded on September 12, 1953 in Volume 13, page 2 of the Salem Land Records." (Complaint, ¶ 4(h).) That deed conveyed, inter alia, a portion of the property referred to as "Parcel D," and included the following provision: "[s]ubject to these conditions, which shall be binding upon the grantee, her heirs and assigns: 1. No cottage or extensions of any cottage shall be built in front of the existing cottages to obstruct the present view, provided that if any cottage is destroyed by fire, it can be rebuilt on same site. 2. No further buildings shall be erected on this tract, with the exception of two additional cottages, and said two additional cottages shall not obstruct the view from the present cottages." (Internal quotation marks omitted.) (Complaint, Count 1, ¶ 4(h).) In their answer, the defendants admit these allegations.
These alleged conveyances consist of the following: (a) a warranty deed from Milton O. Clark to Craig S. Wilson and Shelly W. Wilson dated November 27, 2007, and recorded on November 29, 2007, in the Salem land records, which conveyance was made subject to "Building restrictions as more particularly set forth in deed from Sidney F. Strongin, et al., Trustees to Nellie Friedland dated 9/4/53, and recorded 9/12/53 in Volume 13, page 2 of the Salem CT land records" (internal quotation marks omitted); (b) a trustee's deed from Milton O. Clark, trustee, to Milton O. Clark dated September 18, 2007, and recorded on September 18, 2007, in the Salem land records; (c) a quitclaim deed from Wendy P. Clark to Milton O. Clark, Trustee, dated June 26, 1995, and recorded on June 27, 1995, in the Salem land records; (d) a quitclaim deed from Milton O. Clark and Wendy P. Clark dated and recorded on April 7, 1995, in the Salem land records; (e) a quitclaim deed from Milton O. Clark to Milton O. Clark and Wendy P. Clark dated and recorded on October 19, 1983, in the Salem land records; (f) a warranty deed from Mildred Friedman to Milton O. Clark dated July 28, 1978, and recorded on August 11, 1978, in the Salem land records; (g) a warranty deed from Nellie Friedman to Mildred Friedman dated November 17, 1953, and recorded on December 3, 1953, in the Salem land records; (h) a quitclaim deed from Sidney F. Strongin, Nellie Friedland, and Dora V. Strongin, all the former directors and trustees in dissolution of Eden Park, Inc., to Nellie Friedman, dated September 4, 1953, and recorded on September 12, 1953, in Volume 13, page 2, of the Salem land records. A portion of the property conveyed was "Parcel D," which was conveyed subject to the provision: "[s]ubject to these conditions, which shall be binding upon the grantee, her heirs and assigns: 1. No cottage or extensions of any cottage shall be built in front of the existing cottages to obstruct the present view, provided that if any cottage is destroyed by fire, it can be rebuilt on same site. 2. No further buildings shall be erected on this tract, with the exception of two additional cottages, and said two additional cottages shall not obstruct the view from the present cottages." (Internal quotation marks omitted.) (Complaint, Count 1, ¶ 4(h).) Prior to the 1953 conveyance described above, the property was conveyed by quitclaim deed from Sidney F. Strongin to Eden Park, Inc., dated September 5, 1931 and recorded on October 10, 1931, in the Salem land records. (Complaint, Count 1, ¶ 4(i).)
The plaintiff also alleges, and the defendants admit, that in August 1983, the defendants' predecessor in title, Milton O. Clark, constructed an extension to the then existing cottage. The plaintiff further alleges that this extension was built in front of the cottage situated on Parcel E, thereby "significantly obstructing the view of Gardner Lake then enjoyed" from that cottage. (Complaint, Count 1, ¶ 8.) The defendants deny this allegation. The plaintiff alleges, and the defendants admit, that in May 2008, the defendants' entire cottage was destroyed by fire down to its foundation, and that prior to the reconstruction of their cottage, the defendant Shelly Wilson received a letter from the plaintiff stating that the plaintiff intends to enforce the building covenant set forth in the defendants' deed pertaining to obstruction of the plaintiff's view. The plaintiff alleges that the defendants ignored her letter and began rebuilding their cottage with an extension that would obstruct her view. The plaintiff alleges that the extension violates the building restriction described above. In count two of the complaint, the plaintiff incorporates the allegations of count one and further alleges that the extension is a "willful violation" of the building restriction. The plaintiff seeks a temporary and permanent injunction ordering the defendants to remove the structures that violate the restrictive covenant and an "award of counsel fees on account of defendants' willful violation of said restrictive covenant, all as alleged in Count II of this complaint."
In their answer, the defendants assert, inter alia, the following special defense: "The restrictive covenant sought to be enforced by the plaintiff has been extinguished by the provisions of General Statutes §§ 47-33e, et seq. and cannot be enforced."
On May 25, 2010, the defendants filed a motion for summary judgment with a memorandum of law in support on the ground that the restrictive covenant allegedly violated has been extinguished by the provisions of the Marketable Title Act, General Statutes § 47-33b et seq. In support of their motion, they submitted an affidavit of Carla D. van Dijk, with several exhibits. The plaintiff filed a memorandum of law in opposition on August 27, 2010. The plaintiff did not submit any evidence with her memorandum in opposition.
II DISCUSSION
"Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
In their memorandum in support of their motion for summary judgment, the defendants argue that the restrictions at issue were extinguished on December 3, 1993, by the provisions of the Marketable Title Act, General Statutes § 47-33b et seq. They contend that because those statutory provisions extinguish claimed interests that were created prior to the effective date of the root of title, the covenants contained in the deed that was recorded on September 12, 1953, have been extinguished and cannot be revived by any reference to those covenants in the 2007 deed. Specifically, they maintain that at the time that the property was conveyed to the defendants, November 29, 2007, the most recent deed to be recorded as of a date forty years prior to the time that marketability was determined was the warranty deed from Nellie Friedland to Mildred Friedland that was recorded on December 3, 1953. They argue that the December 3, 1953 deed, therefore, constitutes the root of title for the defendants' property under the Marketable Title Act, and that this deed is not made subject to the restrictions created on September 12, 1953, which was prior to their root of title.
General Statutes § 47-33b sets forth definitions applicable to General Statutes §§ 47-33b to 47-33l. Section 47-33b provides in relevant part:
(a) `Marketable record title' means a title of record which operates to extinguish such interests and claims, existing prior to the effective date of the root of title, as are stated in section 47-33e;
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(e) `Root of title' means that conveyance or other title transaction in the chain of title of a person, purporting to create or containing language sufficient to transfer the interest claimed by such person, upon which he relies as a basis for the marketability of his title, and which was the most recent to be recorded as of a date forty years prior to the time when marketability is being determined. The effective date of the root of title is the date on which it is recorded;
(f) `Title transaction' means any transaction affecting title to any interest in land, including, but not limited to, title by will or descent, by public sale, by trustee's, referee's, guardian's, executor's, administrator's, conservator's or committee deed, by warranty or quitclaim deed, by mortgage or by decree of any court.
The defendants note that the conveyance by warranty deed from Mildred Friedland to Milton O. Clark that was recorded on August 11, 1978 was made "subject to all covenants, easements, and restrictions as of record may appear." (Defendants' memorandum in support, exh. A-3.) Nevertheless, they argue, pursuant to General Statutes § 47-33d, a general reference in the muniments to a restriction created prior to the root of title is not sufficient to preserve that restriction unless the recorded title transaction creating that restriction is specifically identified. Because neither the August 11, 1978 deed nor any other deed subsequent to the root of title other than the November 29, 2007 deed specifically references the restrictions created in the September 12, 1953 deed, the restrictions at issue were not preserved. They argue that the restrictions were "declared null and void and extinguished by the Marketable Title Act on December 3, 1993 (40 years after the December 3, 1953 root deed in the defendants' chain of title) . . ." (Defendants' memorandum in support, p. 7.) They maintain that the reference to the restrictions in the November 29, 2007 deed "was erroneous and only served to insulate the grantor from any liability under the warranty covenants contained in the deed." (Defendants' memorandum in support, p. 7.) The defendants also contend that the plaintiff could have exercised her right to preserve her claimed interest in the restrictions pursuant to General Statutes § 47-33f by filing a statutory notice of claim during the time between her acquisition of her property in 1985 until the interest was extinguished on December 3, 1993.
In her memorandum in opposition to the motion for summary judgment, the plaintiff argues that since the defendants' deed specifically identifies the recorded title transaction that created the building restrictions at issue, and because that deed is a muniment in their chain of title, the restrictions are not nullified by the Marketable Title Act. In support of her position, she notes that pursuant to § 47-33d(1), marketable title is subject to "All interests and defects which are created by or arise out of the muniments of which the chain of record title is formed . . ." The plaintiff argues that building restrictions are not nullified by the Marketable Title Act if, within the defendants' chain of title, the recorded title transaction creating the building restriction is specifically identified, regardless of when the recorded title transaction creating the restriction was recorded. She maintains that because the November 29, 2007 deed is part of the defendants' chain of title and because that deed specifically identifies the recorded title transaction creating the building restrictions, the defendants were put on notice in their own chain of title that the restrictions had been placed on their property and the restrictions, therefore, were not nullified by the Marketable Title Act.
General Statutes § 47-33d(1) provides, in its entirety: "Such marketable record title is subject to: (1) All interests and defects which are created by or arise out of the muniments of which the chain of record title is formed; provided a general reference in the muniments, or any of them, to easements, use restrictions or other interests created prior to the root of title are not sufficient to preserve them, unless specific identification is made therein of a recorded title transaction which creates the easement, use restriction or other interest; . . ."
The Supreme Court has described "the general structure and purpose of the [Marketable Record Title Act], which `declares null and void any interest in real property not specifically described in the deed to the property which it purports to affect, unless within a forty year period, a notice specifically reciting the claimed interest is placed on the land records in the affected land's chain of title.' . . . [The Supreme Court has] previously stated that the purpose of the act is `to simplify land title transactions through making it possible to determine marketability by limited title searches over some reasonable period of the immediate past and thus avoid the necessity of examining the record back into distant time for each new transaction.' . . . Coughlin v. Anderson, 270 Conn. 487, 507, 853 A.2d 460 (2004); see also Mizla v. Depalo, 183 Conn. 59, 67, 438 A.2d 820 (1981).
"Marketable record title is defined as `a title of record which operates to extinguish such interests and claims, existing prior to the effective date of the root of title, as are stated in section 47-33e . . .' General Statutes § 47-33b(a). In order to establish marketable record title, a person with the legal capacity of owning land in this state must be able to show an unbroken chain of title to an interest in the land for forty years or more. See General Statutes § 47-33c. A person with marketable record title takes the land `free and clear of all interests, claims or charges whatsoever, the existence of which depends upon any act, transaction, event or omission that occurred prior to the effective date of the root of title.' General Statutes § 47-33e. The act defines "`[r]oot of title" [as] that conveyance or other title transaction in the chain of title of a person, purporting to create or containing language sufficient to transfer the interest claimed by such person, upon which he relies as a basis for the marketability of his title, and which was the most recent to be recorded as of a date forty years prior to the time when marketability is being determined. The effective date of the root of title is the date on which it is recorded . . .' General Statutes § 47-33b(e).
"Even marketable record title, however, may be subject to certain interests. Section 47-33d provides in relevant part: `Such marketable record title is subject to: (1) All interests and defects which are created by or arise out of the muniments of which the chain of record title is formed . . .' Thus, if an easement over a subject piece of property arises out of one or more of the muniments, including the deeds, of which the chain of record title is formed, a property owner takes the land subject to that easement. This general provision is subject to a proviso contained in § 47-33d(1), however, which provides that `a general reference in the muniments, or any of them, to easements, use restrictions or other interests created prior to the root of title are not sufficient to preserve them, unless specific identification is made therein of a recorded title transaction which creates the easement, use restriction or other interest . . .'" (Citation omitted; emphasis added.) McBurney v. Cirillo, 276 Conn. 782, 807-09, 889 A.2d 759 (2006), overruled on other grounds by Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 284-89, 914 A.2d 996 (2007). Stated differently, the failure in the deeds comprising the chain of title to specify a volume and page number of the earlier deed containing the easement, restriction or other interest renders the reference too general to satisfy the "specific identification" requirement of § 47-33d(1). Id., 810, citing Coughlin v. Anderson, supra, 270 Conn. 507.
In the present case, the central issue presented in this motion for summary judgment is whether the specific reference, by volume and page number, in the deed to the defendant's property that was recorded on November 29, 2007, which was more than forty years after the root of title was recorded, to the "Building restrictions as more particularly set forth in deed from Sidney F. Strongin, et al., Trustees to Nellie Friedland dated 9/4/53, and recorded 9/12/53 in Volume 13, page 2 of the Salem, CT land records" is insufficient to preserve the restrictions that form the basis of the plaintiff's claims. In accordance with Mannweiler v. LaFlamme, 65 Conn.App. 26, 781 A.2d 497 (2001), such a reference is sufficient to preserve the restrictions.
"In Mannweiler v. LaFlamme, [ supra, 65 Conn.App. 32-34] . . . [the Appellate Court] concluded that the defendants had notice of, and were bound by, restrictive covenants described in deeds in the plaintiffs' chain of title, when the deed by which the defendants took title made reference to the deeds describing the covenants. Thus, the lack of a description of the covenants in the defendants' chain of title did not render them null and void under the act." (Emphasis added.) Johnson v. Sourignamath, 90 Conn.App. 388, 397, 877 A.2d 891 (2005). In Mannweiler, the defendants took title to the property at issue in June 1989. Mannweiler v. LaFlamme, supra, 65 Conn.App. 28. "The defendants accepted title subject to the following language: Possible conditions and restriction as set forth in two Warranty Deeds from J.H. Whittemore Company to Louis A. Dibble dated September 30, 1927 and July 15, 1930 recorded respectively in Vol. 78 Pages 41 and 642 of the deed from J. H. Whittemore Company to Louis A. Dibble dated September 26, Land Records, as supplemented by a Warranty Deed between those parties dated September 26, 1946 recorded December 7, 1946 in Vol. 97, Page 493 of the Naugatuck Land Records." (Internal quotation marks omitted.) Id. The plaintiffs brought an action seeking injunctive and declaratory relief seeking to enjoin the defendants from violating the restrictive covenants that would have prevented the defendants from constructing additional houses on their lots. Id. The Appellate Court upheld the determination of the trial court rejecting the defendants' special defense that they were entitled to judgment pursuant to the Marketable Title Record Act, which required the plaintiffs "to preserve their interest in enforcing the restriction by filing a notice in the defendants' chain of title within the forty-year period specified by the act." Id., 30. In upholding the determination of the trial court, the Appellate Court reasoned: "Here, the plaintiffs' interest in enforcing the restrictions . . . was not nullified because the warranty deeds containing the covenants and restrictions were specifically described in the defendants' deed . . . The 1989 deed of conveyance to the defendants states specifically: `2. Possible conditions and restriction as set forth in two Warranty Deeds from J.H. Whittemore Company to Louis A. Dibble dated September 30, 1927 and July 15, 1930 recorded respectively in Vol. 78, Pages 41 and 642 of the Naugatuck Land Records, and conditions and restrictions as set forth in the deed from J. H. Whittemore Company to Louis A. Dibble dated September 26, 1946 and recorded September 26, 1946 in Vol. 97, page 377 of the Naugatuck Land Records, as supplemented by Warranty Deed between those parties dated September 26, 1946 recorded December 7, 1946 in Vol. 97, Page 493 of the Naugatuck Land Records.' The defendants' own expert conceded that the reference in the defendants' deed to `possible conditions and restriction' is a specific reference. Thus, the defendants were put on notice in their own chain of title that the original grantor had placed certain covenants and restrictions on the land and that these covenants and restrictions run with the land in favor of all the lots in the subdivision, including the lot on which the defendants want to build multiple buildings." (Emphasis added.) Id., 33-34.
As in Mannweiler, the defendants' deed to the subject property in the present case contains a specific identification of the recorded title transaction that created the restriction. The court explained: "The act `declares null and void any interest in real property not specifically described in the deed to the property which it purports to affect, unless within a forty year period, a notice specifically reciting the claimed interest is placed on the land records in the affected land's chain of title.'" (Emphasis added.) Id., 33, quoting Schulz v. Syvertsen, 219 Conn. 81, 84, 591 A.2d 804 (1991). Because the restriction in the present case, as in Mannweiler, is specifically identified in the defendants' deed, the restriction is not nullified by the act.
In support of their motion, the defendants rely on Irving v. Firehouse Associates, LLC, 95 Conn.App. 713, 898 A.2d 270, cert. denied, 280 Conn. 903, 907 A.2d 90 (2006), for the proposition that a pre-root restriction that has been extinguished by the provisions of § 47-33e cannot be revived by the recording of a later title transaction. This reliance is misplaced. In Irving, the Appellate Court addressed the defendant's argument that the lack of a specific reference in the plaintiff's root of title to the volume and page number of the title transaction creating the easement extinguishes the easement under the act. Id., 725. The court rejected the plaintiff's argument for two reasons. First, it explained that "the act does not require that the root of title contain a specific reference to the establishment of the easement. It is sufficient if any of the deeds within the forty year period contain such a reference in the relevant chain of title or if a notice specifically reciting the claimed interest is recorded in the land records in the affected land's chain of title within that forty year period." (Emphasis added.) Id. The defendants correctly note that the court also states the following: "A Marketable Record Title is subject to any interest or defect arising out of any title transaction which has been recorded in the record chain of title of the subject property subsequent to the date of the recording of the root of title; provided however, the recording of such a transaction cannot revive or give validity to any pre-root of title defect or interest which has been extinguished by the provisions of § 47-33e." (Internal quotation marks omitted.) Id. Nevertheless, the court did not elaborate on the meaning of this statement. Moreover, the issue of whether a title transaction recorded after the forty-year period following the recording of the root of title could revive a pre-root restriction that has been extinguished by the act was not before the court. The court determined that the restriction at issue never had been extinguished. The court in Irving went on to emphasize that "[t]he act declares null and void any interest in real property not specifically described in the deed to the property which it purports to affect . . ." (Emphasis in original; internal quotation marks omitted.) Id., 726. When read in context, therefore, the Appellate Court's statement regarding the effect of a post-extinguishment title transaction on a pre-root restriction is not applicable to the present case, in which the defendants' deed specifically identifies the recorded title transaction creating the restriction at issue. Accordingly, the defendants' reliance on Irving is misplaced.
In the present case, the undisputed evidence submitted in support of the defendants' motion for summary judgment demonstrates that no genuine issue of material fact exists with regard to the building restriction at issue. Nevertheless, for the reasons discussed above, the defendants are not entitled to judgment as a matter of law because the building restriction at issue was not extinguished by the provisions of the Marketable Title Act. Consequently, the defendants' motion must be denied.
III CONCLUSION
For the foregoing reasons, the court hereby denies the defendants' motion for summary judgment.