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Sullivan v. Urban

A-3292-03T2 (N.J. Super. App. Div. 2004) (Unpublished)

DECLARATIONS—Where a restrictive covenant is not clear, a developer’s intent in drafting the restriction and, arguably, the expectations of its buyers, are relevant to its interpretation and should be considered by a fact finder at a trial.

Buyers purchased a home in a development. When looking across the street, it had a scenic view of a lagoon. Shortly after closing, the owner of the property across the street installed a solid, six-foot stockade fence. It extended from the rear sidewall to the property line of an adjacent owner and blocked the buyers’ view of the lagoon. The buyers filed a Chancery Division action seeking to have the fence removed. They contended that the fence violated the development’s Declaration of Covenants and Restrictions which prohibited fences and other obstruction between the sidewalls of the development’s homes. The buyers argued that the covenant prohibited more than just those fences that extended outwardly from sidewalls of a house. They believed fences were also barred from an imaginary line extending to the front and rear of the property.

The lower court held that the fence was not within the prohibited side-yard. It interpreted the covenant narrowly. In its view, a fence was prohibited only if it extended laterally from a sidewall of one house to the sidewall of the next house, not from any extended imaginary line.

On appeal, the Appellate Division held that the underlying dispute should not have been decided by summary judgment. It found that the restrictive covenant was not clear, and that the developer’s intent in drafting the restriction and, arguably, the expectation of the buyers, was relevant to its interpretation and should have been explored at a trial. It took note that the buyers had presented certifications and letters from the attorney who drafted the covenant, concluding that the fence violated the covenant. For that reason, the Appellate Division reversed the lower court’s grant of summary judgment and also suggested that the parties present testimony from a planning expert at trial to explain what was meant by the phrase “sidewalls of the home” in the covenant.


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