Opinion
No. CV03 0349534 S
December 3, 2004
MEMORANDUM OF DECISION
Plaintiffs and Defendant each seek summary judgment regarding the meaning of language within a deed's restrictive covenant.
The following relevant facts are not in dispute. James and Catherine Arnold hold title to residential property in Danbury, Connecticut. The defendant is an abutting landowner. The parcels of the plaintiffs and defendant are located in the West Terrace Subdivision and were each conveyed subject to a restrictive covenant stating that "there shall not be erected on the premises hereby conveyed or on any part thereof, any building (other than a one story garage) except a detached dwelling house, for the use and occupancy of one family." Although plaintiffs' parcel is comprised of multiple lots, the parties each obtained title to their respective parcels in a single conveyance. Since obtaining title, the plaintiffs have subdivided their property into two parcels. The board approving this subdivision did not pass upon, nor was it asked or required to pass upon the restriction before this court. Parcel A is improved by plaintiffs.' home, a single-family dwelling, and Parcel B is unimproved.
The plaintiffs commenced the present declaratory judgment action seeking a holding that construction of a single-family dwelling on Parcel B would not violate the restrictive covenant found in the original deed, and now seek such a holding via summary judgment. The defendant opposes and cross-moves for summary judgment, in effect prohibiting a home on Parcel B.
The plaintiffs and defendant concede that the West Terrace subdivision is a uniform plan of development. The only dispute that remains, therefore, requires the court to determine the meaning of the language contained in the restrictive covenant. "[T]he determination of the intent behind language in a deed, considered in the light of all the circumstances, presents a question of law" for the court. DaSilva v. Barone, 83 Conn.App. 265, 371, 849 A.2d 902, cert. denied, 271 Conn. 908 (2004).
The plaintiffs urge the court to read the language of the restriction as a limitation only upon the type of building that may be erected on the premises, to wit, that the indefinite article "a" merely refers to single-family dwellings as the only type of building permitted. Additionally, plaintiffs contend that this narrower restriction applies separately to each individual lot conveyed, which, if so, would allow more than one single-family dwelling on multi-lot parcels. The defendant, however, asserts that the restriction not only restricts the type of structure that may be built, but also limits the number of structures to one single-family dwelling, because the restriction applies to the entire conveyance plaintiffs originally received, regardless of how many lots it contained.
In Contegni v. Payne, 18 Conn.App. 47, 557 A.2d 122, cert. denied, 211 Conn. 806, A.2d 1140 (1989), the Appellate Court encountered a similar issue. The court found that the language of a restrictive covenant that restricted construction of "any building other than (1) one family dwelling" was a limitation on both the type and number of buildings that might be constructed on the property. The Contegni court looked at several slightly different permutations of the restriction in that (Stamford) subdivision, including one that prohibited any buildings other than "a dwelling house," and found that each permutation including, of course, the one most analogous to the case at bar, was consistent with restricting the number of structures to one single-family dwelling. The court found that use of the phrase "part of parcel" represented "mere `belt and suspenders' language, the intent of which was to insure the continued enforceability of the covenants in the event of a judicial partition of the property," such as a subdivision, as occurred here. Contegni v. Payne, supra, 18 Conn.App. 66. This court concludes that the use of the phrase "on any part thereof" is also, as in Contegni, "belt and suspenders" language, complementing the "a," and thus meant to insure that the restriction would apply to any later subdivided portion of the premises, such as Parcel B.
For it is true that, standing along, "a" might not be numerically dispositive. Contegni v. Payne, supra, 18 Conn.App. 66.
The plaintiffs' final argument is that the restriction has not been uniformly enforced in West Terrace. In support, they point to two examples in the Subdivision where premises conveyed as bundled lots were subsequently subdivided and single-family dwellings built on each resulting lot. "[T]he test is whether the circumstances show an abandonment of the original restriction making enforcement inequitable . . ." (Internal quotation marks omitted.) Shippan Point Assn., Inc. v. McManus, 34 Conn.App. 209, 215, cert. denied, 229 Conn. 923, 642 A.2d 1215 (1994). Here, the plaintiffs have shown only two examples of deviation from the restrictive covenant in a subdivision containing over 200 buildable parcels. In Shippan Point, supra, "several . . . within . . . twenty-five" were shown. The prior earlier deviations here are not enough to show an abandonment of the intent to restrict the number of single-family dwellings permitted on each parcel.
What plaintiffs refer to as the Concord Road Recombination was originally conveyed as a bundle of seven lots. Plaintiffs' Exhibit G. The lots were recombined and three single-family dwellings were constructed on the newly formed lots. Plaintiffs' Exhibits H-K.
The property involved in the Lake Avenue Recombination was originally conveyed by two deeds. The first deed conveyed a bundle of four lots. The second deed conveyed a bundle of eight lots. Plaintiffs' Exhibit L. The lots were recombined and four single-family dwellings were constructed. Plaintiffs' Exhibits M-R.
This court has thus determined that the language of the restrictive covenant is a limitation on both the type of building and the number of buildings that may be erected on the premises. Based on this finding, as a matter of law it is clear that a fair and reasonable fact finder could conclude but one way, and that, therefore, summary judgment lies.
The court grants the defendant's motion for summary judgment and denies that of the plaintiffs.
NADEAU, J.