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Conti v. New Jersey-American Water Company

A-0860-03T5 (N.J. Super. App. Div. 2004) (Unpublished)

DEEDS; COVENANTS—Any ambiguity in a deed covenant is to be resolved in favor of an owner’s unrestricted use of its land.

In 1953, the owner of a fourteen-acre site conveyed adjacent property to the municipality. The deed authorized the municipality to build a water storage tank on its new property that would be connected with its water distribution system, and gave it a right of way over the owner’s property for an access road to the tank from a nearby road. The deed also provided that the municipality would install two fire hydrants, one in the right of way, and the other on the owner’s property at the end of her driveway. The deed also required the municipality to install a water main and a fire hydrant to protect the owner’s house, and to paint the water storage tank and landscape the area around the tank in accordance with the owner’s wishes. The deed, which stated that its covenants were for the benefit of the owner, her heirs, and assigns, also provided that the municipality had two years to complete the project, and that if it failed to do so, or if it stopped using the property as part of its water supply system, the property would revert to the owner. The municipality immediately improved the right of way, built the tank, the fire hydrants, and painted the tank. Nothing in the record indicated that the owner objected to anything the municipality did, but there was also nothing showing exactly what the municipality did.

The owner donated her property to a local university, who in turn conveyed it to its current owner in 1995. In 1992, the municipality sold its property to a local water company. In 1995, the water company stopped providing water to the fire hydrant located near the driveway to the house because it considered it to be privately owned. It also claimed that the restrictive covenants were unenforceable. The current owner sued to have the water company paint and maintain the tank and landscaping, and to maintain the fire hydrant.

Restrictive covenants must be carefully drafted to state exactly what is intended, and must not be vague or uncertain. Any ambiguity is resolved in favor of the owner’s unrestricted use of his land. For that reason, the lower court held that the covenant for painting and landscaping was unenforceable because it was ambiguous. On appeal, the owner argued that the lower court erred because the covenant clearly required that the landscaping and painting be maintained in accordance with the “wishes” of the original owner and her assigns, in which category the new owner placed himself. Even assuming that the new owner was an intended beneficiary of the covenant, the Appellate Division still felt that the problem was that the “wishes” standard provided no objective standard against which to measure the company’s supposed obligation. Provisions such as the one in question must be defined in some measurable and reasonably permanent fashion. For that reason, the Court affirmed the lower court’s decision, holding that this covenant was unenforceable.

The lower court also refused to enforce the covenant respecting the fire hydrant just beyond the end of the owner’s driveway because it was not located on the owner’s property. The deed said nothing about ownership or maintenance of this hydrant. In the appeal, the Appellate Division pointed out its need to consider whether a covenant interferes with the public interest. Here, the deed did not provide how the water company would be allowed to enter the property and make repairs on the hydrant. Thus, all the water company could do would be to turn on the water and hope that the owner would fix any resulting problems. The Court believed that this situation could result in flooding that could endanger the public and therefore was against the public interest. For those reasons, the Appellate Division held that the covenant was unreasonable and therefore unenforceable.


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