By: Thomas S. Tripodianos Aisling Brady Published: November 2017

Is a Restrictive Covenant Contained in a Deed Enforceable?

Question.        Is a Restrictive Covenant contained in a deed enforceable?

Answer. Yes, but it is subject to interpretation.

Existing Neighbors seek to prevent Constructing Neighbor from continuing construction in his rear yard in alleged violation of a restrictive covenant in the deed for the adjoining residence.

Existing Neighbors sold the subject property to Constructing Neighbor. In the deed, Existing Neighbors added the following handwritten language to the bottom of page 1:

Restrictive Covenant — No additions or alterations above one story or 17.00 feet to the top of roof of any structure as measured from the existing basement floor elevation shall be made to any part of the subject premises. This Restrictive Covenant shall remain in effect as long as [Existing Neighbors] maintain [the property next to the one being sold] as their primary residence.

(the "Restrictive Covenant")

The handwritten Restrictive Covenant bore the handwritten initials "CN" on the left margin representing Constructing Neighbor's acknowledgment.

Shortly after the property was transferred, a contractor began work in the rear yard. It appeared that Constructing Neighbor was adding a structure to the rear of his home which appeared to be an attached room or gazebo. Existing Neighbors then marked a line on their fence that they alleged was the Restrictive Covenant's maximum height. Existing Neighbors then informed the contractor working on Constructing Neighbor's home that the work appeared to violate the Restrictive Covenant. Existing Neighbors also told Constructing Neighbor of the alleged violation. Constructing Neighbor continued to perform work in the rear yard on the gazebo structure and chimney.

To enforce the covenant, Existing Neighbors wants the New York City Department of Buildings to issue a stop work order and a directive that Constructing Neighbor comply with the Restrictive Covenant. Constructing Neighbor alleges that the Restrictive Covenant is not enforceable

Constructing Neighbor admits that at the closing he was presented with the Restrictive Covenant, handwritten into the deed. He admitted that the handwritten language "specifically state[d] no 'addition' or 'alteration,' and he understood that the Restrictive Covenant meant "no additions or alterations to the Premises." He further testified that he believed the "gazebo" or "covered porch," as he identified the backyard structure, was not an addition or alteration under the building code. In his testimony and affidavit, Constructing Neighbor stated he understood that Existing Neighbors "did not want any new structure obstructing their view from their second floor." Constructing Neighbor did not believe, however, that his structures obscured their view. Therefore, Constructing Neighbor was aware and agreed to the Restrictive Covenant and its intent.

Case law is clear that restrictive covenants will be enforced when the intention of the parties is clear and the limitation is reasonable and not offensive to public policy.

Under RPAPL 1951(2), a court may extinguish a restriction if "the restriction is of no actual and substantial benefit to the person seeking its enforcement or seeking a declaration or determination as to its enforceability, either because the purpose of the restriction has already been accomplished or, by reason of changed conditions or other cause, its purpose is not capable of accomplishment." The court may declare the restrictive covenant unenforceable when balancing of equities, the restrictive covenant is of no actual and substantial benefit.  The burden is borne by the party seeking to extinguish the covenant and must show the (1) lack of benefit derived from enforcement of the restriction, and (2) legally cognizable reason for the extinguishment of the restriction under RPAPL 1951, such as changed conditions which render the purpose of the restriction incapable of being accomplished.

Existing Neighbors argue that the Restrictive Covenant herein was intended to maintain the Existing Neighbors' view of the ocean by restricting any alteration or addition to the neighboring home over a certain height. This limitation was reasonable and understood by Constructing Neighbor. This restriction does not offend public policy and may be accomplished.

Constructing Neighbor has not carried its burden to show the Restrictive Covenant is not enforceable or extinguishable.

The Restrictive Covenant does however have limitations which must be defined. The first inquiry is what is an alteration or addition, and then how is the height limit defined — to one story or 17.00 feet, or the lesser of the two.

Proceeding to defining an addition or alteration, we first turn to the common usage of the terms and whether the gazebo or chimney fit within either definition. Thus, the Merriam-Webster dictionary defines an addition as a "a part added (as to a building or residential section)" and an alteration as "the result of changing or altering something."

Constructing Neighbor argues that §27-232 of the Building Code of the City of New York defines these terms as follows: addition — "An extension or increase in floor area or height of a building that increases its exterior dimensions;" and alteration — "Any addition, or change in modification of a building, or the service equipment thereof, that affects safety or health and that is not classified as a minor alteration or ordinary repair. The moving of a building from one location or position to another shall be deemed an alteration."

Constructing Neighbor has identified the structure in the backyard as a "covered porch" or "gazebo" that would not be enclosed and without enclosure, it is merely a porch. Constructing Neighbor explained, through his architect that as a porch, therefore, it does not meet the definition of "Addition" within the Building Code since it does not increase the floor area of the residence. As such, Constructing Neighbor argues that the gazebo or covered porch, and chimney do not fit within the restrictions set forth in the Restrictive Covenant.

It is relatively clear that the "gazebo" type structure and the extended chimney, not existing prior to 2016 are additions and/or alterations to the residence. The "gazebo" is a substantial structure with a floor, and large scalloped roof that is attached to the residence, and appears to have been intended as a sun room. There were no plans on file with building department prior to the start of construction to confirm the exact type of room intended. However, the plans filed after the fact do envision an open structure.

Although the "gazebo" type structure may not increase the floor area, it changes the exterior dimensions of the residence in a permanent fashion since it is attached to the residence, as does the chimney. Moreover, the "gazebo" or "covered porch" could at any point be enclosed, and once enclosed, it would extend the floor area of the residence. Thus, the chimney and "gazebo" or "covered porch" are additions and if not they are alterations in that they are more than a "minor alteration or ordinary repair" to the residence under the building code.

The final inquiry is whether these additions or alterations exceed 17.00 feet or one story, as outlined by the Restrictive Covenant. Existing Neighbors argue that the 17.00-foot limit is violated by both structures in that the height is measured from the existing basement floor. Constructing Neighbor counterargues that the basement is more appropriately defined as a cellar under the NYC Building Code §27-232 and as such, not proper for measurement of the Restrictive Covenant height. This argument is not persuasive in that Constructing Neighbor testified that he understood the meaning of the covenant and whether the lower level of the residence is considered a basement or cellar, he understood that the Restrictive Covenant sought that floor as the basis for measurement.

Additionally, Constructing Neighbor argues that even if it is considered a basement, the restriction is not enough to allow any extension to the residence under the New York City Building Code since it would limit the height of the next story to a five-foot celling. This argument is unavailing, since if the Restrictive Covenant was read as a sole limit of 17.00 feet, the Restrictive Covenant would simply limit any addition to the residence with an upper portion about the 17.00-foot limit.

However, the Restrictive Covenant cites a limit of "one story or 17.00 feet." The NYC Building Code §27-232 defines one story as "[t]hat portion of a building that is between a floor level and the next higher floor level or roof above."

The chimney, whichever ever way it is argued, violated the Restrictive Covenant. The chimney is clearly an addition or alteration to the existing residence and extends above the roof of the residence, whether that limit is one story or 17.00 feet. Constructing Neighbor has argued that the change in chimney height was necessary when Constructing Neighbor replaced the fireplace in the basement. However, the counter argument wins, in that, Constructing Neighbor did not have to replace the fireplace, and no new regulations required the chimney extension. Existing Neighbors correctly argue that if the Restrictive Covenant is enforceable, and such Restrictive Covenant restricts the height of an extension to a height which violated the Building Code, then the extension is not permitted.

The "gazebo" or "covered porch" is not as clear. As measured from the floor of the basement (or cellar), this structure is above 17.00 feet. However, it is less that one story.

The testimony and submitted papers show that both parties were aware of the presence of the Restrictive Covenant, its intent and general application. However, the application of Restrictive Covenant lent itself to two different interpretations. The Restrictive Covenant did restrict the addition or alteration of the residence which was either "one story or 17.00 feet to the top of roof of any part of any structure", whichever limit was greater. Therefore, the structure or gazebo under construction in Constructing Neighbor's rear yard is no greater than one story and permitted under the Restrictive Covenant, despite its possible height above the 17.00-foot marker.

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