By: Alan D. Singer Published: January 2019

When is a Restrictive Covenant Not Enforceable

It has been common practice, especially in the first half of the twentieth century, for owners of residential subdivisions (hereinafter referred to as “grantors”) to include in the deeds to individual lots various restrictions on development. These could include minimum or maximum home sizes, type of homes which could be built, roofing material to be used (usually slate) or restrictions on use such as prohibition against farm animals, storing of recreational vehicles or prohibitions against commercial usages. Often approval of building plans would be reserved to the grantor, which created a problem when that person or entity was no longer in existence.

More recently, these restrictions have taken the form of recorded Declarations of Restrictive Covenants which are binding on “heirs, successors and assigns”, in other words, all future owners. As often happens, some of the provisions of the restrictions become obsolete over time or are simply ignored by future owners and the ancient deed restrictions may not be included in later transactions. If there is no interested entity insuring compliance with the original restrictions they may be frequently ignored by later generations.

When there is no enforcement of the restrictions by a grantor or successor in interest to the grantor the question arises as to whether an owner in the chain of title can enforce the restriction against a neighbor who has or is threatening to violate it. The answer, as in most legal issues, is a definite maybe. A recent case in which we represented a defendant (Shehan v. Commisso and Cassano, Supreme Court, Suffolk County) explores that issue. The issue was whether a neighbor (Shehan) could enforce a 1929 deed restriction purportedly prohibiting further subdivision of a lot owned by the defendants, as to which the Planning Board had approved a subdivision of a lot into two building lots.

The Court ruled that he could not and dismissed his suit. In so doing the Court relied on existing law which allows a neighbor to seek enforcement of a deed restriction only if that neighbor can prove that the restriction was part of a common scheme or plan throughout the subdivision intending to benefit all owners. In this case there was ample evidence that no such common scheme existed. First, not all of the lots in the subdivision contained the same original deed restriction, and some of them had restrictions which expired by their terms in 1933. Additionally, the grantor had retained the right to impose other or different restrictions in future deeds. Also, the original 28 residential lots, through various re-subdivisions, had now grown to over 40, with three of them improved by a school.

Thus it was found that despite the deed restrictions being said to “run with the land” and inuring to the benefit of subsequent owners, they were not part of a common scheme or plan, so could not be enforced by one owner against another. It may also have been significant that the deeds for both plaintiff’s and defendants’ properties, going back to at least 1950 did not contain any reference to the original restrictions.

The lesson here is that when dealing with ancient deed restrictions, especially ones which seem to make no sense in contemporary times, it is important to consult with an attorney and thoroughly research the history of and current conditions within the subdivision.

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