Daily Development for
Tuesday, December 9, 1997

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

SERVITUDES; COVENANTS; INTENT: Restrictive covenant containing words of succession ("heirs and assigns") demonstrates parties intent that the covenant run with the land, despite additional language in deed that specifically excepted out the restrictive covenant from those covenants which were to run with the land.

Weeks v. Kramer, 696 A.2d 361 (Conn.App. 1997) cert. granted in part, 243 Conn. 917 (Sept. 22, 1997).

In the the first deed in the subdivision, relating to property adjacent to the north of that that of the defendant here, the developer included a covenant restricting landscaping or building that would block the view of lot 13. The developer in that deed further provided that the view covenant did not run with the land "except that the covenants contained in Paragraph 8 (the view protection covenants) shall be real covenants running only with Lots 14, 15 and 18 and shall run only with the title to these three lots."

In the original (later) deed for defendant's predecessor's property - lot 12 - just to the north of lots 14, 15 and 18, and down the hill from the protected view lot, the developer did not include this statement that the Paragraph 8 covenant ran only with respect to certain lots. This lot was not one of the three lots originally covered in Paragraph 8. The developer, however, did include somewhat modified Paragraph 8 language: "no trees, shrubs or buildings shall be erected or maintained by the Grantees, their heirs and assigns on the land purchased and to be purchased by the Grantees . . . . [that would block Lot 13's view]." Notwithstanding this rather clear language, the developer left in the deed (in somewhat modified form) language that indicated that covenant 8 would run only with lots 14, 15 and 18. (Note that this was in the deed of lot 12).

The upshot was that one part of the defendant's predecessor's deed - paragraph 8 - said that the view covenants would run with the land to its successors and assigns. Another part said that "all covenants except for Paragraph 8 . . . " shall be real covenants running with the land. The lot owner argued, and the trial court ruled, that this language demonstrated that there was no intent to bind successors and assigns of that predecessor. Therefore, defendant was not bound.

On appeal: held, reversed. The court held that simply stating that all paragraphs except paragraph 8 ran with the land was not the same as saying that paragraph 8 did not run with the land. Rather, the court concluded that it was clear that the developer did intend that paragraph 8 would run with lot 12.

Reporter's Comment: In applying the general rule that a restrictive covenant containing words of succession is presumed to run with the land, the court seemingly dismissed express language in the deed which stated that certain restrictive covenants contained in the deed were to run with the land except for the restrictive covenant that was at issue in this case.

Editor's Comment: The editor concludes that the case is correct, although the editor would have decided it differently. There is no need to attempt to reconcile the apparent purpose of the parties in the language of the deed to lot 12. The best construction of the intent evidenced on the face of the deed is that the covenant would not run, as the reporter suggests. But to say that this is the "best" consruction is not to say that it is a "good" construction. The deed simply is contradictory on its face. There is no way to reconcile adequately the intent of the drafters, because it is evident that they made a mistake. Now the court must make some some interpretation of the instrument as parties have taken interests in reliance upon it for some period of time.

The language indicating all paragraphs except paragraph 8 will run with the land was erroneously included from the prior deed of another lot. At the time of original drafting, it was a clumsy attempt to make the same set of provisions apply to the transfer of all lots. When the grantors attempted to "custom tailor" it to the transfer of subsequent lots, they made a bad job much worse. But their specific amendement of paragraph 8 to state that it did run with the land to bind the grantee's successor (here defendant), made their true intent clear, in light of the fact that other lots were similarly burdened to protect lot 13's view.

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