Daily Development for
Wednesday, March 18, 1998

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

SERVITUDES; COVENANTS; ARCHITECTURAL REVIEW; DEVELOPER'S RIGHTS: Provision that developer has right to review and approve architectural plans so as to protec the view from other lots confers upon other lot owner an absolute right to protection of the view, and a court, and not the developer, will determine whether a proposed project provides reasonable protection for the view.

Castonguay v. Plourde, 699 A.2d 226 (Conn. App. 1997)

Lornik, a development company, developed a subdivision on a hillside with a commanding view. A provision in the declaration of covenants stated: "location of dwelling house . . . To be erected on any lot shall be subject to written approval of Lornik, Inc., or its successor or assigns, in order to preserve the view of other lot owners." Plaintiffs or their predecessor purchased lots from Lornick in the late 80's and built homes on them. Defendants acquired their unimproved lot, due east of plaintiffs lots, in 1995, from a predecessor that had acquired the lot in a bank foreclosure.

When plaintiffs bought their lots and built their homes, they had extensive conversations with the president of Lornick concerning the preservation of the view from their homes, and the consequent need to limit construction on the lot later acquired by defendants to low rise structures.

When defendants determined to build their home, they took their plans to the same person, and obtained approval. When they began construction, however, plaintiffs observed that defendants framing demonstrated that defendants planned a "very high" house, and protested that this house would block their view.

The trial court enjoined the defendants from proceeding with construction and enjoined Lornick from approving the construction in such a way as to interfere with plaintiffs' view.

On appeal: held: Affirmed.

The first issue the court had to address, one would think, would be the fact that the language of the covenant expressly provided that the lot owner had to obtain approval from Lornick, and only from Lornick, or parties to whom Lornick had expressly assigned its approval rights.

The court stated that the issue was whether the covenant was "appurtenant" [sic]. It concluded that this was a question of law, as to which it was not bound by the review of the trial court. But it then concluded to agree with the trial court that the covenant was "appurtenant" in the sense that the benefit of the covenant ran to the various lot owners whose views might be affected. The court pointed to the various provisions of the declaration stating that the covenants ran with the land to the successors and assigns of the various parties.

The court's discussion referred interchangeably to easement cases and covenant cases without any apparent understanding of possible difference in theory as to the two types of interests. The court distinguished two other cases holding expressly that approval rights in a named developer may not be enforced by lot owners directly. It stated that these cases concluded that the covenants in question did not "run with the land," while the evidence in this case suggested that the covenants did run with the land.

Comment 1: Regardless of result, this case appears to be extraordinarily poorly reasoned. The court never focussed on what should have been the central question, whether the defednants were protected by obtaining the permission of Lornick. This issue was not resolved by the conclusion that the benefit of the view covenant "ran with the land." The covenant could provide that Lornick or its successors were the sole parties necessary for approval even if the covenant did run with the land, both as to burden and benefit. The plaintiffs' sole enforcement rights would be to force defendant to obtain Lornick's approval prior to building. That appears to be the intended limit to the plainitffs' rights. Any further remedies would be against Lornick.

Even if we were to give the plaintiffs broader rights under the covenant, the next level of enforcement would be to give them the right to ask for review of Lornick's decision. Normally, at best, a court's review of an architectural review decision would be based upon adequacy of foundation for the decision and, in some states, "reasonableness" of the decision. This is a far, far cry from giving the individual plaintiffs the right to ask a court to make the original determination of whether their view was improperly blocked.

It appears to have been Lornick's intention to preserve to itself the discretion as to when proposed construction did or did not unreasonably interfere with the view of neighboring lots. Lornick's preservation of this right to itself obviously made a lot of sense, since Lornick was in the process of continuing to sell and develop lots at the time it sold the lots to plaintiffs. The court does not bother to tell us whether Lornick still owned lots in the subdivision.

It would not be unusual for a developer in Lornick's position, after Lornick had sold out its lots, to assign its approval rights to a neighborhood architectural review committee. But such a committee, again, would have the responsibility to make a reasonable judgment based upon reasonable review of the interests of all parties. Here, the court concludes that there is no intermediary process - determination of what is or is not a reasonable obstruction of the view is solely the province of a court. This conclusion seems absolutely at odds with the apparent intent of the original covenant.

The trial court apparently ignored the testimony of the developer that the intent of the language in the covenant was to preserve "some kind of view" for the plaintiffs' lots, but not to give them complete protection of every bit of their vista. The court concluded that the plaintiffs were entitled to a full panoramic view. Shouldn't the question have been whether the developer's judgment was an unreasonable one under the circumstances, rather than the meaning of the covenant language in the abstract?

Comment 2: There is no doubt that, in cases where developers no longer have an interest in a subdivision, a court may be faced with the challenge of finding some alternative scheme to carry out the apparent plan of the parties to enforce architectural restrictions beyond the "build out" period. But in cases where the developer designates itself as the architectural review judge, and still has an active interest to protect, the court should give substantial weight to the fact that the only right the covenant conferred was to a reasonable judgment by the developer - no more or less.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1-6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Stacy Woodward at the ABA. (312) 988 5260 or woodwars@staff.abanet.org

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA. Parties posting messages to DIRT are posting to a source that is readily accessible by members of the general public, and should take that fact into account in evaluating confidentiality issues.