Skip to main content

Gogan v. Paton

A-625-99T1 (N.J. Super. App. Div. 2000) (Unpublished)

DEEDS; RESTRICTIONS—Despite numerous violations over the years of a common development deed restriction, a court may find that the deed restriction may have only been modified, not abandoned.

A lagoon community consisting of approximately 194 lots was subject to certain deed restrictions. One of those restrictions limited the height of fences and shrubbery to three feet. One property owner sued another claiming that its fence and evergreen shrubs violated the deed restriction. It was admitted that the shrubs and fence were higher than three feet, but the offending property owner contended that the fence restrictions had been so uniformly ignored that the restriction should be deemed abandoned. The lower court judge conducted a site inspection of the neighborhood by boat and then held that the fence ordinance had two purposes. One was to allow a view of the lagoon and the other was to provide for light and air because of the narrowness of most of the lots and the close proximity of one house to another. The lower court found that only 72 of the houses had fencing of any type, and while there was a pervasive violation of the three foot standard, most of the fences did not exceed four feet and when they did they were usually located so as not to impede a view of the lagoon. The lower court also found that “[f]ew, if any, of the fences were of the length, height or density of the defendant’s, especially to the extent that it protrudes into the backyard and continues to the bulkhead without either actually being reduced in height or appearance or decrease in height because a sloping of the ground towards the bulkhead.” In sum, the lower court held that while there were widespread violations of the three foot restriction, the overwhelming number did not exceed four feet and those that did, “are low enough to provide a view,” and did not otherwise impede light and air. The lower court ordered the defendant property owner to remove either the barrier or reduce it and maintain a height of not more than four feet . The Appellate Division agreed. Essentially, the Court found that the restrictive covenants had been modified over the years but not abandoned.

66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 •