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Rosenblum v. Miele

A-0862-09T1 (N.J. Super. App. Div. 2011) (Unpublished)

DEEDS; RESTRICTIONS — Where a deed restriction, even one whose violation would cause a reversion, makes the restriction contingent upon construction of a building on the property, the restriction is not effective until that building is constructed.

A business owner purchased a tract of land from the municipality. It was adjacent to its existing business. The deed contained certain use restrictions. Just prior to the purchase, the business owner sent a letter to occupants at its own property demanding that an office trailer be removed from the tract and that the area then remain vacant. The municipal ordinance authorizing the sale required that the deed of sale limit the property’s use to only those uses permitted by the zoning ordinance; to prohibit compactors, balers or other facilities with which solid waste activities are conducted; and to ensure the enforcement of these restrictions through a clause that would automatically revert title upon violation. The resolution also required a purchaser, if a contiguous property owner, to remove any and all trailers located on the contiguous property within a reasonable time after a certificate of occupancy was issued for any structure later built on the property. The actual deed included these restrictions, and called for reversion if the buyer did not comply strictly with the restrictions.

An objector sued for a judicial declaration that the owner had violated the deed restrictions by failing to remove the office trailer and by operating compactors on the long-owned property, thus triggering the reversionary clause. At trial, the objector called various witnesses while the business owner and municipality didn’t call any. The lower court held that construction of a building on the property was a condition precedent to the removal of the trailer. Thus, because a building had never been built, removal of the trailer was not required. The lower court found this interpretation strengthened by the fact that the property was in an industrial zone where the municipality was not likely to be overly concerned with sight or blight issues.

During trial, the objector also argued that the business owner had violated the deed restriction by permitting garbage trucks with built-in compacting capabilities to park on the property. The lower court distinguished such garbage trucks from a conventional compacters, finding that any possible violation yo be de minimis.

On appeal, the objector argued that the lower court erred when it failed to find that the business had violated the deed covenants requiring removal of the office trailer from its original property and prohibiting the placement of compactors or other forms of solid waste activities there. The Appellate Division found that the lower court’s judgment was supported by the clear text of the covenant and the negotiation record. In affirming, the Court also noted that the lower court’s ruling was consistent with judicial principles disfavoring a strict enforceability of restrictive covenants.

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