Daily Development for
Thursday, December 19, 1996

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

SERVITUDES; COVENANTS; CONSERVATION COVENANTS: A covenant which prohibits the construction or placing of buildings or other structures on or above ground bars the installation of a swimming pool. Goldmuntz v. Town of Chilmark, 651 N.E.2d 864 (Mass. App. Ct. 1995).

The Appeals Court upheld a ruling of the Land Court which determined that a proposed swimming pool was a structure within the meaning of a covenant which restricted the "construction or placing of buildings . . . or other structures on or above ground." Furthermore, the pool did not fall within the ambit of any of the covenant's limited exceptions allowing, for example, improvement of the existing dwelling and accessory structures appropriate to certain passive recreational uses. The court reasoned that the purpose of the conservation covenant (stated on its face) was to restrict the use of the property and retain it predominantly in its natural, scenic and open condition and that the construction of a swimming pool would be adverse to that purpose.

Comment 1: Historically, of course, many courts have had a tradition of narrowly construing covenants that restrict land use, particularly where the covenants are permanent in character and are being enforced against successors in interest to the original promissor, which is the case here. The court might easily have read the covenant to apply only to structures that were above ground, and not to swimming pools.

In this case, however, the conservation easement was given to the city in exchange for "economic benefits," which the court does not specify. This may have led the court to interpret the language more broadly.

Comment 2: Interestingly, the court observed that the covenant did permit accessory structures for various named "passive recreational activities" and even speculated that swimming in the adjacent natural pond might be included in such an activities, thus justifying the construction of a bathhouse ancillary to that activity. In the Northeast, of course, swimming pools are somewhat unsightly when they are closed for the cold months, and perhaps it is this character of the installation that repelled the city and the court. The editor, a native Southern Californian, sees a swimming pool as related to residential uses to the same degree as a driveway or a deck, but, Kansas Citians hate the things, and installing a new swimming pool here often will reduce the value of a residential property. (Sigh)

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