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Perelman v. Casiello

392 N.J. Super. 412, 920 A.2d 782 (App. Div. 2007)

RESTRICTIVE COVENANTS — Restrictive covenants in a deed conveying part of one’s land are not personal to the grantor if the benefit of the restriction is apparent, appurtenant to the land, and the type of restriction is one that would logically exist for an indefinite period of time.

Two individuals owned adjacent ocean-front properties. Restrictive covenants in their respective chains of title established a setback that prohibited construction of more than one residence on each lot. One property owner sought declaratory and injunctive relief to enforce the covenants in the other owner’s deed. The lower court granted summary judgment in favor of the non-movant, holding that the restrictive covenant in the non-movant’s chain of title was a personal promise from the original grantee to the original grantor. The movant appealed.

The Appellate Division held that the original grantee and grantor intended to burden, for an indefinite period of time, the grantee’s land and benefit the grantor’s land, and that the neighboring property owner, as successor in title to the original grantor, had the right to enforce those covenants transferred. The Court found that the complaining neighbor could enforce the restrictive covenants, unless there were changed conditions that frustrated the purpose of the restriction or until there were equities that made enforcement unjust under the circumstances. The Court found that these particular restrictive covenants made sense only if it they burdened successors to title for an indefinite period of time, as the benefit of the restriction was apparent – to provide each lot with an unobstructed view of the beachfront and ocean. The Court stated that such a benefit, which inures to an owner or occupier of land, is generally deemed appurtenant to the land if it is tied to ownership or occupancy. Further, it noted that the deeds stated that the restrictions were part of the consideration for the conveyance. However, the Court concluded that there was a question of fact as to whether the first owner’s conduct constituted changed circumstances or whether the relevant equities precluded enforcement or warranted modification of the restrictive covenant. Accordingly, the Court reversed and remanded for further proceedings.


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