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M & R Builders, Inc. v. McBride

A-3833-02T3 (N.J. Super. App. Div. 2004) (Unpublished)

RESTRICTIVE COVENANTS—In a multi-phase development where each phase is encumbered by a “neighborhood scheme” restriction, the developer, when retaining lots in one phase, may enforce the restriction against lot owners in any other phase.

A woman bought a home in a two phase development. Her seller was also the developer and the property owner of the second phase. The two sections of the development were contiguous to each other. Both sections were subject to certain recorded restrictions, including one that set a maximum fence height of four feet. The developer sued to enforce this restriction when the woman built a six foot fence. Before filing suit, the developer offered to reduce the fence to a conforming height at no cost to her.

The lower court noted that the municipality permitted six-foot fences, but the four foot restriction was enforceable in what the lower court found to be a “neighborhood scheme.” The woman appealed, but the Appellate Division agreed with the lower court. In doing so, it pointed out that the developer, “as an owner of property in the second section of [the] development [was] entitled to enforce the restrictive covenants and the neighborhood scheme.” As such, it had sufficient standing.

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