Opinion
No. FST CV 06-4007607 S
May 24, 2006
MEMORANDUM OF DECISION
This case presents issues concerning the validity, interpretation and enforcement of restrictive covenants set forth in certain deeds conveying title to residential properties located in Norwalk and Darien. The issues include the validity of the covenants when the properties subject to the restrictions were not identified on a filed subdivision map or in any of the individual deeds imposing the restrictions; the standing of the plaintiff to enforce the restrictions when a claim is made that her title is not burdened by the restrictions because of the operation of the Connecticut Marketable Record Title Act; and the continued validity of the restrictions after the passage of sixty years and allegations of changes in circumstances.
The plaintiff, the owner of residential property located at 80 Maywood Road in Norwalk, has filed an application for an injunction against the defendants, owners of property located at 145 West Norwalk Road in Norwalk. The plaintiff's application and complaint claim that both the plaintiff's property and the defendants' property are subject to certain restrictions which have been violated by the defendants. The defendants have filed an answer denying the allegations of the complaint and asserting six special defenses.
West Norwalk Road is sometimes referred to as "West Norwalk Avenue" in certain deeds and maps. To avoid confusion the court will consistently use "West Norwalk Road" in this memorandum of decision.
The court heard the parties' testimony and other evidence over four days of trial from March 1, 2006 to March 8, 2006. After the conclusion of evidence the parties made oral argument and subsequently submitted briefs.
FINDINGS OF FACT
The court finds the following facts based on the evidence presented. The plaintiff's property and the defendants' property were once in common ownership. Those properties were part of a 76.6-acre tract of land known as "Overbrook" owned by one John Sherman Hoyt ('Hoyt"). Overbrook was situated partially in Norwalk (54.9 acres) and partially in Darien (21.7 acres). Overbrook is shown on exhibit 1, a map prepared for Hoyt by a surveyor in 1940 recorded in the Norwalk land records by Hoyt on November 8, 1940. The map shows the perimeter of the Overbrook and the location of certain structures then located on the tract but does not show any division of the tract into smaller lots. The map also shows that Overbrook was bounded on the east by West Norwalk Road and that Maywood Road ran from West Norwalk Road through the approximate center of the property. The map does not contain any notation that the land depicted on the map was subject to restrictive covenants.
On May 15, 1940 Hoyt executed a deed conveying a 2.32-acre lot out of Overbrook to John Cabot, Jr. (the "Cabot Deed"). The lot, described as "Plot U" was situated on Maywood Road in Norwalk. (Ex. 75.) The Cabot Deed recited the following restrictions relevant to the issues of this case:
This deed is given and accepted upon the following express covenants and restrictions, which shall run with land and enure to and be binding upon the parties hereto, their heirs, executors, administrators and assigns, to wit: 1. No building shall be erected upon the premises above described except one single-family dwelling house; and in addition thereto there may be erected thereon one separate garage and separate buildings for such uses as a greenhouse, gardener's cottage, a shop for use in connection with said premises but not for commercial use, or other outbuildings suitable for use in connection with and as appurtenant to said dwelling house; none of said buildings shall, however, be within thirty (30) feet of any boundary line of said premises, nor within forty (40) feet of any portion of the street line. Plans and specifications for all buildings shall be submitted to and approved by the grantor or such person or corporation as he may designate, as hereinafter set forth, for approval as to design and compliance with the foregoing restrictions; and construction shall not begin until such plans have been approved by him or his designee. 2. No business or gainful occupation shall be carried on upon any part of said premise, but permission is given for the maintenance by a physician of an office in his dwelling house and for the maintenance of a small sign therefor . . . 4. The premises hereinabove conveyed shall not be subdivided for purposes of sale, but permission is given to convey lands lying along the boundary of any adjoining owner to such adjoining owner, provided the area on the tract hereinabove conveyed shall not be reduced to less than 2.1 acres. 5. The grantor, his heirs and assigns, may by a proper deed or other instrument, designate the person or corporation to whom the plans and specifications referred to in paragraph 1 hereof shall be submitted, and the certificate of the grantor or of such designated person or corporation that said plans have been submitted and approved, duly recorded on the land records, shall be sufficient evidence that paragraph 1 hereof has been complied with.
Subsequently, between 1940 and 1964, Hoyt, his conservators and his executors executed deeds conveying all of Overbrook to purchasers subject to substantially identical restrictions.,
On October 29, 1940 Hoyt executed a deed conveying Plot S-1, a 1.94-acres to Graham Hoyt, Edward M. Foote, Jr. and Vernon Sears. Instead of the 2.1-acre area restriction imposed on other lots, paragraph 4 of the deed provided "The premises hereinabove conveyed shall not be subdivided for purposes of sale."
The April 23, 1941 deed conveying Plot D — 5.391 acres on Maywood Road (ex. 59) provided that Plot D could not be subdivided for sale, with the exception of sales to owners' of adjacent property if Plot D retained at least 2.1 acres in area. In 1955 through a series of agreements the executors of the Hoyt estate and the owners of all properties in Overbrook executed an agreement modifying the restrictions to permitting Plot D to be divided into two parcels not smaller than 2.4 acres. Thereafter, Plot D was divided into two parcels — Plot D1 containing 2.92 acres and Plot D2 containing 2.47 acres.
By deed dated February 27, 1942, (Ex. 6), Hoyt conveyed a 3.14-acre parcel out of Overbrook fronting on West Norwalk Road in Norwalk, adjacent to Plot Q and shown on a recorded map (Ex. 7) as "Plot R," to William H. Pinckard containing similar restrictions. The restrictions are identical to those set forth in the Cabot Deed with two exceptions. First, paragraph 1 of the restrictions recognizes the presence of an existing house on the property at the time of the conveyance with the following provision:
1. A house now stands on said Lot and said house may be enlarged and improved but any addition to said house shall be so constructed as not to bring said house or any part thereof nearer than the same now is to said West Norwalk Avenue. Should said building be destroyed or removed, no new building shall be erected on the premises above described except a one family dwelling, nor shall the old building, if improved and enlarged be made into other than a one family dwelling house . . .
Second, in addition to permitting a gardener's cottage and other accessory structure paragraph 1 permitted the construction of a "guest cottage." Plot R is presently owned by the defendants.
Plot Q, 3.89 acres in area, adjacent to and to the south of the defendant's property was created by deed dated July 15, 1941 from Hoyt to Arthur A. Ticknor and Katherine C.A. Ticknor. (Ex. 4.) The restrictions are identical to those in the Cabot deed, except that a "guest cottage" is expressly permitted. The defendants property and Plot Q are the only lots in Overbrook on which a "guest cottage" is permitted. The evidence shows that a residence constructed in 1740 was located on Plot Q both in 1941 and at the time of trial.
Among the Overbrook conveyances was a November 21, 1960 deed from the Hoyt executors for 2.118 acres, lot 16, on Maywood Road to the plaintiff's predecessor in title, Jack Discala. (Ex. 36.) By deed dated October 27, 1964 the executors of the Hoyt estate disposed of the last parts of Overbrook owned by the Hoyt estate.
The deeds from Hoyt, his conservators and his executors conveyed all of the property included in the Overbrook perimeter survey. (Ex. 1.) As a result of these conveyances, Overbrook was subdivided into 31 lots, 23 in Norwalk and 8 in Darien. The evidence establishes that no map of the entire Overbrook property, as subdivided, was ever filed on the land records of Norwalk or Darien. Similarly, no declaration of restrictions identifying all properties subject to the restrictive covenants was ever filed on those land records.
On December 10, 1975 the Hoyt executors signed and filed only in the Darien Land Records a "Designation of Agent" appointing attorney Willard J. Overlook as their agent "to approve the plans and specifications as to design and as to compliance with the other restrictions affecting said lots all as required under the restrictions affecting said lots." (Ex. 90.) At the time of the execution of this document, more than ten years had passed since the sale of the last piece of Overbrook by the Hoyt executors. There was no evidence that this designation was ever filed on the Norwalk Land Records.
On September 14, 1990 the defendants purchased the property known as 145 West Norwalk Road in Norwalk. The residence which had been located on the property when it was purchased from Hoyt by Pinckard in 1942 remained in place and the 3.14-acre area of Plot R remained intact. The deed to the defendants (Ex. 8) stated that the conveyance was subject to "Restrictions contained in Warranty Deed from Hoyt to William H. Pinckard dated February 17, 1942 and recorded in Volume 293 at page 490 of the Norwalk Land Records." Within a few years of their purchase, the defendants enlarged the residence. This construction required the defendants to obtain a variance of the front yard set back requirements from the Norwalk Zoning Board of Appeals. As the defendants' family grew, incidents occurred which caused the defendants to fear for the safety of their children principally on account of the proximity of their residence to West Norwalk Road, a busy highway. The defendants became interested in determining whether they could erect a new home on the rear of their property, subdivide their property and sell their old residence.
The first step the defendants took was to investigate the suitability of the rear portion of their property for the construction of a new residence and the required on-site septic system. Satisfactory tests were completed in 2003. In 2004, the defendants chose an attorney, Kenneth Hapke, from the telephone yellow pages and made an appointment to consult him. Attorney Hapke was shown the deed from Hoyt to Pinckard containing the restrictions (Ex. 6) and the deed by which the defendants acquired title to their property. (Ex. 8.) Hapke recommended that the title be searched to determine whether Hoyt had left any heirs. While the defendants testified that they believed that Hapke had searched the title, they also testified that no title search or title report was given or shown to them. The defendants testified that Hapke later reported that he had not found any Hoyt heirs and suggested that prior to proceeding with their planned subdivision of their property they should contact their neighbors.
Hapke offered to prepare or review a letter which the defendants would send to their neighbors. However, the defendants declined his offer and drafted their own letter. On July 29, 2004 defendant, Ralph Arcamone, sent a letter concerning the defendants' intentions only to abutting owners and property owners on the opposite side of West Norwalk Road. The plaintiff and most property owners in Overbrook were not sent copies of the letter. The letter told of the defendants' plan to subdivide their property and erect a new residence and of their application for zoning approval. The letter did not address the restrictive covenants affecting the defendants' property and the properties of those neighbors who owned property in Overbrook.
The defendants obtained approvals from the City of Norwalk to subdivide their property and to construct a new residence on a newly created lot on the back portion of their property. Thereafter they began site work to allow the construction of their new residence. A silt fence was erected around the construction area. A substantial number of trees, including several large oaks were cleared from the new home site and from a driveway leading to the site. Heavy equipment was brought on to the site to excavate the foundation and to remove tree stumps and other material. The defendants do not claim that this work was visible from the plaintiff's property, but claim that the noise from chain saws and other equipment during the spring of 2005 gave notice that substantial work was underway of their property. The defendants also offered evidence to show that construction work was visible from West Norwalk Road to passing automobiles.
In the late spring of 2005, the defendants listed their existing residence for sale with a real estate broker. The property listed for sale included a lot 1.48 acres in an area comprising the front portion of the defendants' property and their existing residence. (Ex. 10.) In June 2005, the plaintiff's husband learned that the defendants had listed a portion of their property for sale. He obtained a copy of the listing, but neither he nor the plaintiff took any action prior to leaving for Europe for an extended vacation.
After the foundation for the new residence was poured the defendants attached sills to the foundation extending approximately five to six feet above grade level in order to accommodate the modular home the defendants had ordered. Modular homes are constructed in factories with all home systems (plumbing, HVAC, electrical, etc.) integrated into modular sections. The sections are delivered to the job site by trailers, placed on the foundation and joined together to complete the house. The defendants' modular home was delivered to the site on the night of July 31, 2005 and erection of the house began the next day.
In early August, the plaintiff and her husband returned from Europe in time to observe the defendants' new residence rising above the landscape. The plaintiff contacted her attorney who immediately wrote to the defendants demanding that they abide by the requirements of the Overbrook restrictions. When discussions between the parties and their counsel did not resolve the dispute the plaintiff filed an application for a temporary restraining order and a permanent injunction. The plaintiff did not proceed on her application for a temporary restraining order and the parties agreed to an early trial on the permanent junction.
THE PLEADINGS The plaintiff's complaint, dated November 30, 2005, does not include a claim for money damages, requesting only injunctive relief enforcing the provisions of the restrictions. The plaintiff's complaint claims that the defendants have violated the restrictions in two respects. The plaintiff first claims that the defendants "improperly subdivided their property . . ." The plaintiff next claims that the defendants "are constructing a second dwelling on the one lot they acquired." The relief requested in the plaintiff's complaint includes:1. A permanent injunction "preventing the defendants . . . from constructing a second building on [their] property . . .
2. "That the defendants be ordered to remove the structure presently under construction in violation of the restrictions and restore the premises to their prior condition."
3. "That the defendants be restrained and enjoined from doing any other action in violation of the restrictions . . .
4. "Any other further relief as the court may deem just and proper and as to equity may appertain."
The defendants' answer denies the alleged violations of the restrictions and disputes their present validity of the restrictions. The defendants' answer also set forth several special defenses including: laches, waiver, changed circumstances and a claim that the plaintiff cannot enforce the restrictions under the Connecticut Marketable Record Title Act, General Statutes § 47-33b et seq.
DISCUSSION A. STANDING — THE CONNECTICUT MARKETABLE RECORD TITLE ACT
The defendants' special defense under the Connecticut Marketable Title Act, General Statutes § 47-33b et seq., ("CMRTA") addresses the plaintiff's standing to maintain this action. If valid, that special defense would dispose of all of the plaintiff's claims. Accordingly, the court will first address the defendants' claim under CMRTA. The defendants claim that if the plaintiff is not subject to the Overbrook restrictions, she does not have the right, in equity, to enforce them against others. They claim that the CMRTA "extinguishes any use restrictions in the (plaintiff's) deed." CMRTA declares null and void any interest in real property not specifically described in the deed to the property which it purports to affect, unless within a forty-year period, a notice specifically reciting the claimed interest is placed on the land records in the affected chain of title. The defendants point out that the plaintiff's husband obtained title to the property by virtue of a quitclaim deed dated September 9, 1964 signed by the plaintiff's father-in-law and mother-in-law (Ex. 38.) That deed stated that the property was conveyed subject to "Restrictions of record," but contained no reference to the restrictions imposed upon and benefitting the property conveyed by the Hoyt executors to Jack Discala in 1960.
The defendants acknowledge that the Overbrook restrictions are part of their own "root or title." However they point out that, under the provisions of the CMRTA, the plaintiff's "root of title" is the September 9, 1964 quitclaim deed. They claim that, since that deed does not specifically refer to the Overbrook restrictions by book and page and fails to recite such restrictions, the plaintiff's property is held by her "free and clear" of such restrictions. Under these circumstances the defendants reason that the plaintiff lacks standing to enforce the restrictions against them. The court finds the defendants' argument imaginative, but ultimately unavailing.
The reference in exhibit 38 to "restrictions of record" is not specific enough to prevent the operation of the Connecticut Marketable Title Act under the provisions of § 47-33d(1). See Connecticut Bar Association, Standards of Title, Standard 3.10 (1999) (example 4 indicates that a specific reference in the deed in question to another recorded deed includes the volume and page number where that deed appears in the land records of the town where the land is located).
The first problem with the defendant's position is that they have not claimed or demonstrated an interest in the title to the plaintiff's property sufficient to permit them to invoke the provisions of CMRTA. The provisions of General Statutes § 47-33k outlines the purposes of CMRTA and the legislative intent behind it: "Sections 47-33b to 47-33l, inclusive, shall be liberally construed to effect the legislative purpose of simplifying and facilitating land title transactions by allowing persons to rely on a record chain of title as described in section 47-33c, subject only to such limitations as appear in section 47-33d." In Simonds v. Shaw, 44 Conn.App. 683, 689, 691 A.2d 1102 (1997) the Appellate Court has also recognized the purposes of CMRTA: "The purpose of that act if to limit title searches to some reasonable period of the immediate past, forty years in Connecticut pursuant to General Statutes § 47-33c and thus to avoid the necessity of examining the record back into distant time for each new transaction." To be protected by CMRTA a person must be either an owner of the land in question or a person who acquires or seeks to acquire an interest in that land. Since the defendants are not owners of the plaintiff's land nor are they seeking to acquire an interest therein, they are outside the protections of CMRTA. The Supreme Court has held that CMRTA is an act of limited purposes and it should not be construed or applied beyond those purposes. II Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 538, 757 A.2d 1103 (2000).
General Statutes § 47-33b(d) limits the protections of CMRTA to "Person dealing with land" which includes "a purchaser of any estate or interest therein, a mortgagee, an attaching or judgment creditor, a land contract vendee, or any other person seeking to acquire an estate or interest therein, or impose a lien thereon."
Secondly, even if the provisions of CMRTA were available to defendant, it would not necessarily follow that the Overbrook restrictions would be unenforceable against the plaintiff. In Mannweiler v. LaFlamme, 46 Conn.App. 525, 535-36, 700 A.2d 57, cert. denied 243 Conn. 934, 702 A.2d 641 (1997) the court considered the equitable nature of restrictive covenants. "With respect to this type of covenant, any grantee under a general or uniform development scheme may enforce the restrictions against any other grantee . . . The doctrine of the enforceability of uniform restrictive covenants is of equitable origin. The equity springs from the presumption that each purchaser has paid a premium for the property in reliance on the uniform development plan being carried out. While that purchaser is bound by and observes the covenant, it would be inequitable to allow any other landowner who is also subject to the same restriction to violate it." See also DeMorais v. Wisniowski, 81 Conn.App. 595, 609, 842 A.2d 226, cert. denied, 268 Conn. 923, 848 A.2d 472 (2004) and Arnold v. Hoffer, 94 Conn.App. 53, 58, 891 A.2d 53 (2006).
These cases make it clear that the enforcement of restrictive covenants is governed by principles of equity. The evidence in this case shows that the plaintiff and her predecessors in title were fully aware of the Overbrook restrictions and that in 2004 she and her husband joined with other neighbors to use the threat of enforcement to convince a neighbor, Kosinski, to abandon his application to subdivide property located on Maywood Road in Norwalk. Under these circumstances, the court cannot find that the plaintiff would be free to violate the Overbrook restrictions. Despite the provisions of CMRTA, equity would enforce the restrictions against plaintiff. Since the plaintiff is equitably bound by the restrictions, it follows that she may resort to equity to enforce them against the defendants. The court therefore finds that the plaintiff has standing to bring this action, notwithstanding the provisions of CMRTA. CT Page 9955
B. VIABILITY OF RESTRICTIVE COVENANTS
The plaintiff asserts that both her property and that of the defendants are subject to viable restrictive covenants. In their answer and special defenses the defendants deny that the covenants are viable and enforceable on various grounds.In Grady v. Schmitz, 16 Conn. 292, 296, 547 A.2d 563, cert. denied, 209 Conn. 822, 551 A.2d 755 (1988), the court noted that restrictive covenants generally fall into one of three categories: "(1) mutual covenants in deeds exchanged by adjoining landowners; (2) uniform covenants contained in deeds executed by the owner of property who is dividing his property into building lots under a general development scheme; and (3) covenants exacted by a grantor from his grantee presumptively or actually for the benefit and protection of his. adjoining land which he retains." Since all of Overbrook was disposed of by the Hoyt family, subject to essentially the same restrictions, the court concludes that the restrictions at issue fall into the second category.
In Contegni v. Payne, 18 Conn.App. 47, 557 A.2d 122 (1989), the court considered the enforcement of restrictions allegedly imposed in connection with the development of subdivided property. The court stated: "The factors that help to establish the existence of an intent by a grantor to develop a common plan are: (1) a common grantor sells or expresses an intent to put an entire tract on the market subject to the plan; (2) a map of the entire tract exists at the time of the sale of one of the parcels; (3) actual development according to the plan has occurred; and (4) substantial uniformity exists in the restrictions imposed in the deeds executed by the grantor." 18 Conn.App. at 53.
The facts in Contegni, supra, were, in some respects, similar to those in the present case. The recorded map did not depict the boundaries of the subdivision lots which were ultimately created, nor did the map refer to any restrictive covenants. The court found that a uniform plan existed where there was a common grantor and substantially similar restrictions which had been respected in connection with the development as it actually occurred. In connection with this last factor, the court noted that minor deviations from the uniform plan were not necessarily significant. "It is unrealistic to require that this factor be fulfilled only by proof that a neighborhood has been frozen in amber for seventy-five years." 18 Conn.App. at 55. After considering all four of the listed factors, the court concluded that the evidence established the intent of the grantor to provide for a uniform plan of development. Nevertheless, the court found that the plaintiffs' evidence of the precise boundaries of the area included in the uniform plan was inadequate, and therefore that the restrictions were not enforceable under the theory of uniform plan of development. However, the court found the restrictions were enforceable under the retained land theory.
The defendants urge that there was no common scheme or plan of development for Overbrook and hence no enforceable restrictions on their property. They point out that none of the deeds from Hoyt, his conservators or his executors describe the premises conveyed with reference to the Overbrook map. Further, with few exceptions, the deeds do not indicate that property, other than property conveyed, is subject to the same or similar restrictions. The defendants also point out that, until research on the land records was done, the plaintiff and the owners of neighboring properties within Overbrook who appeared as witnesses for the plaintiff were aware that the defendants' premises were part of Overbrook. Finally, the defendants point out that part of Overbrook was situated in Norwalk, subject to the zoning requirements of that municipality, while other portions were situated in Darien, and subject to that town's more restrictive zoning.
The court does not find these arguments persuasive. The evidence in this case shows that all of the lots in Overbrook were sold by Hoyt, his conservators or his executors subject to nearly identical restrictions. There was no land shown on the Overbrook map which was not subjected to the same restrictions. All of Overbrook has been sold and developed in accordance with the restrictions. Through the date of trial, more that sixty years after the sale of the first Overbrook lots, no lots have been subdivided into parcels containing less than 2.1 acres and no lot has had more than one single-family residence erected on it. The ignorance of property owners as to the area subject to the common plan of development is not relevant, if the area affected can be ascertained from the land records. Contegni v. Payne, supra, 18 Conn.App. at 60-61.
The fact that the property encompassed by the common plan of development lies in two municipalities is not relevant to the validity of the restrictions. The defendants have not pointed to any authority supporting their contention that municipal boundaries are a relevant consideration in determining the viability of restrictive covenents.
The court finds that the intent of the common grantor to subject all of Overbrook to the restrictions is proven by the actions of Hoyt, his conservators and executors in conveying all Overbrook land by deeds setting forth the virtually identical restrictions. The court further finds that, with the exception of the defendants' activities which are the subject of this litigation, no properties within Overbrook have used or developed in a manner not conforming with the requirements of the restrictions. Under these circumstances the court finds that the absence of a single recorded map depicting the location of all Overbrook lots is not fatal to the validity of the restrictions.
C. CHANGE IN CIRCUMSTANCES
The defendants claim that since the imposition of the restrictive covenants there has been a change of circumstances which renders the restrictions unenforceable. The defendant's principal claim is that increased traffic on West Norwalk Road since the Hoyt deeds of conveyance is a circumstance which warrants the abrogation of the restrictive covenants. The defendants also point to evidence showing that nearby properties outside of Overbrook, have been developed with a much higher density than the 2+-acre Overbrook standard. The nearby properties are located on the east side of West Norwalk Road and on Powder Horn Road and Flintlock Road.
"The standard applicable to the defendants' claim of change in circumstances . . . is that [w]hen presented with a violation of a restrictive covenant, the court is obligated to enforce the covenant unless the defendant can show that enforcement would be inequitable . . . Change in circumstances, such as use of the benefitted property for purposes other than those contemplated by the original covenant, may justify the withholding of equitable relief to enforce a covenant . . . Such a change in circumstances is decided on a case by case basis, and the test is whether the circumstances show an abandonment of the original restriction making enforcement inequitable because of the altered condition of the property involved." (Citations omitted; internal quotation marks omitted.) Grady v. Schmitz, 16 Conn.App. 292, 301-02, 547 A.2d 563, cert. denied, 209 Conn. 822, 551 A.2d 755 (1988). Any such change in conditions must be so substantial so as to completely frustrate the intent of the original covenant so that it would be inequitable to enforce it. Shippan Point Ass'n, Inc. v. MoManus, 34 Conn.App. 209, 216 614 A.2d 144, cert. denied 229 Conn. 923, 642 A.2d 1215 (1994). Such changes in circumstances include the abandonment of residential use by the owner of the property benefitting from the restrictive covenant, Harris v. Pease, 135 Conn. 535, 541, 66 A.2d 590 (1949), or repeated violations of the restrictions without effective action to enforce them. Shippan Point Ass'n, Inc. v. McManus, supra, at 216.
The evidence in this case shows that area included in Overbrook has been developed in strict accordance with the restrictions. No lots in Overbrook have been subdivided for sale or any other purposes. No non-residential uses have been made of any properties. No owner has erected structures on an Overbrook lot which are not permitted under the restrictions. Given these facts, the court finds that the defendants have failed to prove a change in conditions which would justify the court in refusing to grant the plaintiff equitable relief to enforce the restrictions.
D. LACHES
The defendants also argue that the plaintiffs unreasonably delayed in asserting their claims of violations of the restrictive covenants. The court does not agree. "Laches consists of an inexcusable delay which prejudices the defendant." Danaher v. N. Flagg Co., 181 Conn. 101, 107, 434 A.2d 944 (1980). "Laches consists of two elements. First, there must have been a delay that was inexcusable, and second, that delay must have prejudiced the defendant." Kurzatkowski v. Kurzatkowski, 142 Conn. 680, 685, 116 A.2d 906 (1955). "Absent prejudice to the defendant, the mere lapse of time does not constitute laches." Giordano v. Giordano, 39 Conn.App. 183, 213, 664 A.2d 1136 (1995).
In this case the plaintiff and her husband learned of the defendant's attempt to subdivide their property for sale in June 2005 when a listing for a portion of the defendants' property came to their attention. However, it was not until they returned from Europe in August that they saw that the defendants were placing a modular home on the rear portion of their property. The plaintiff immediately contacted her attorney who, without delay, placed the defendants on notice as to the plaintiff's intention to enforce her rights under the restrictive covenants. The defendants did not present any evidence to establish that they were misled or deceived by the plaintiff's inaction from June to August or that they changed their position in respect to the matter in question. See Bozzi v. Bozzi, 177 Conn. 232, 239, 413 A.2d 834 (1979).
The court does not and need not decide on whether the defense of laches would have been available to the defendants had they successfully sold the front portion of their property before the plaintiff took action to enforce the restrictions. On the facts before the court, the court finds that there was no unreasonable delay on the part of the plaintiff in asserting her rights to enforce the restrictions and that the defendants failed to show any prejudice resulting from the delay which occurred. Under these circumstances the court finds the defense of laches to be unavailing.
E. ALLEGED VIOLATIONS — APPROVAL OF DEFENDANTS' PLANS
In both their pre-trial and post-trial briefs, the parties addressed the issue of the defendants' failure to obtain prior approval from attorney Overlock before commencing construction of their property. This issue was not raised in the plaintiff's complaint which only claimed violations of the restrictive covenants with respect to the subdivision of the defendants' lot and the erection of an additional dwelling on that lot. Since the parties have apparently submitted the issue to the court for resolution, and it is easily resolved, the court will oblige the parties by addressing it.
The plaintiff presented a copy of an approval of plans which her predecessor in title had obtained from attorney Overlock in 1977, prior to the construction of the residence on her property. However, she offered no evidence to show that any other approvals had been sought or obtained from the Hoyt family or their representatives over the past 35 years.
In Pulver v. Mascolo, 165 Conn. 644, 237 A.2d 97 (1967), the court considered whether restrictive covenants requiring the approval of plans by a common grantor were of any further force and effect after the common grantor had disposed of the last parcel of property in the subdivision. In that case the court found that the right of approval was personal to the grantor and could not be enforced as a covenant running with the land by one grantee against another.
The court finds that the covenant requiring approval of plans was personal to Hoyt and was extinguished when his executors disposed of the last portion of Overbrook in 1964. Because the Hoyt executors no longer owned any interest in Overbrook, their designation of Overlock as agent for approval of plans in 1975 was a nullity. The court finds that the defendants did not breach the restrictive covenants by failing to obtain prior approval of their plans.
F. SUBDIVISION OF THE DEFENDANTS' PROPERTY
The restriction on subdivision is not a blanket prohibition on subdivision, but is expressly limited to "subdivided of purposes of sale." The defendant's action of obtaining approval from the City of Norwalk to divide their property into two lots did not, in itself, amount to a violation of the restriction against subdivision for purposes of sale. However, when the defendants listed a 1.48 portion of their property with a real estate broker for sale, their intention to violate the restriction became manifest. The defendants have withdrawn the front portion of their property from the market, however, they insist that they are not prevented from subdividing their property for sale. Under these circumstances, the issuance of an injunction prohibiting the sale of any portion of the defendants' property, except to an adjacent owner, is an appropriate remedy.
Under paragraph 4 of the Cabot restrictions, such a sale is permitted, provided the remaining lot is not less than 2.1 acres in area.
G. THE NEW STRUCTURE ON DEFENDANTS' PROPERTY
In her complaint the plaintiff refers to the new structure on the defendants' property variously, as "a second dwelling," "Defendants' construction," "the structure now commenced," "the building," "a second building" and "the structure presently under construction." In her briefs she labels the structure, "the defendants' second house," "a second dwelling," "a new house," "the offending structure," "the offending house," and (most colorfully) as "the partially completed McMansion."
The court is not required to determine what label best fits the new structure, but rather whether its construction and proposed use violates the restrictive covenants and, if so, whether injunctive relief is warranted. To determine the extent to which the erection of structures on the defendants' property is regulated by the restrictions the court finds it necessary to first address the issues arising out of the Ticknor deed conveying plot Q.
H. THE SECOND RESIDENCE ON PLOT Q
The defendants' property (Plot R) and the adjacent parcel (Plot Q) are unique in two respects. First, a residence was located on each property when it was sold by Hoyt which residences remained in existence until the time of trial. Second, the restrictions plots R and Q uniquely permit the construction of a "guest cottage" in addition to a single-family residence and other permitted appurtenant structures. The evidence showed that in 1946, during Hoyt's lifetime, a second residence was constructed on plot Q. Over the years either the original residence or the newer one has been rented to tenants while the other residence was occupied by the owners of plot Q.
"one separate garage and separate buildings for such uses as a greenhouse, gardener's cottage, a shop for use in connection with said premises but not for commercial use, or other outbuildings suitable for use in connection with and as appurtenant to said dwelling house . . ."
The restrictions imposed on plot R recognized the possibility that the existing residence might be either renovated or replaced. In contrast, the restrictions imposed on plot Q do not differ, in any meaningful respect, from those set forth in the Cabot deed and no acknowledgment is made of the existence of the residence on the property on the date of the conveyance from Hoyt to Ticknor.
The plaintiff asserts that the language in the Ticknor deed allowed the construction of an additional residence on plot Q, thereby creating a sole exception to the plan of permitting one residence on each lot in Overbrook. In support of this position the plaintiff points out that the Ticknors erected a second residential structure on plot Q in 1946 and in 1955 joined with all other owners of Overbrook lots, in agreeing to the subdivision of plot D. The plaintiff reasons that the Ticknor's participation in the 1955 agreement demonstrated that "obviously they were in Hoyt's good graces and were not violators of the restrictions." The court fails to follow this reasoning. By 1955 Hoyt was dead and his affairs were being handled by his executors — no one could be in his "good graces." The fact that the Ticknors signed that 1955 agreement is evidence that their agreement was deemed necessary to modify the restrictions applicable to plot D and little else. However, the evidence shows that the residential structure erected by the Ticknors in 1946 remained on plot Q along with the original residence up to the date of trial. It can be inferred that either no action to enforce the restrictions was brought by Hoyt or any other Overbrook owner or that any such action was unsuccessful.
In their brief the defendants also assert that "[t]he restrictions [in the Ticknor deed] allowed for the construction of one additional single-family dwelling." The evidence presented to the court does not establish that the structure erected by the Ticknors in 1946 was a permitted second residence. The structure, containing approximately 1,136 sq. feet of floor area, is more likely a "guest cottage" which is expressly permitted on both plots Q and R or, perhaps was viewed as a "gardener's cottage . . . or other outbuildings suitable for use in connection with and as appurtenant to said dwelling house . . ."
The court finds that the phrase "No building shall be erected upon the premises above described except one single-family dwelling house . . ." in the Ticknor deed, and in the deeds to all Overbrook properties except the defendants,' means only one principal residence may be situated on each lot. Even evidence of existence of a residence on a lot on the date of a conveyance would not indicate that the parties to the deed intended that one more single-family dwelling could be erected on that lot.
In contrast, paragraph 1 of the restrictions in the Pinckard deed not only recognizes the existence of a house on the lot, but also recognizes that the house is situated within the 40-foot setback from West Norwalk Road required under the restrictions. The Pinckard restrictions also contemplate the possibility that the existing residence might be replaced, improved, enlarged or converted to another use.
The restrictions in the Pinckard deed purport to limit the uses to which the existing residence could be put following its improvement or enlargement. The posture of this case does not require the court to determine whether this restriction, which is unique to the defendant's property, forms part of the uniform restrictions enforceable by any Overbrook owner or was personal to Hoyt.
The evidence leads the court to conclude that the absence of any enforcement action in 1946 when a second residential structure was erected on the Ticknor property was not because a second residence was permitted by the deed, but rather that the Ticknors were exercising their right to erect a permitted guest cottage or other permitted accessory building on their property.
I. DEFENDANTS' NEW RESIDENCE AS A VIOLATION OF RESTRICTIONS
Paragraph 1 of the restrictions governing the defendants' property contemplates not only the possible relocation of the principal residence on plot R to a new structure, but also the conversion of the existing residence to a different use. The evidence in this case clearly demonstrates that the new structure under construction on the defendant's property can only be considered as a large residential building. Its bulk would preclude it being considered a "guest cottage" or "gardeners cottage." The defendants are within their rights under the restrictions to abandon the use of their present home and to occupy the new structure as the principal residence on their property. Nothing in the restrictions requires that they remove their present residence before construction of a new residence.
A violation of the restrictions could arise if the defendants attempted to use their present residence in a manner not contemplated by the restrictions. Until the defendants make use of the new structure and the present residence at the same time it is not possible for the court to determine whether a particular use or uses violate paragraph 1 of the restrictions. The court will not speculate on whether the existing residence, either as presently constituted or as altered, could be used as a "gardener's cottage" or a "guest cottage" or another use permitted under the restrictions. The parties did not offer evidence with respect to or address the issue of whether the restrictions relating to the use of the existing residence after its renovation or alteration form part of the uniform restrictions or were personal to Hoyt. Accordingly, the court will not address that issue in this opinion.
J. ENFORCEMENT OF RESTRICTIONS
The court finds that the plaintiff has sustained the burden of showing the existence of a valid and enforceable set of restrictions affecting both the property of the plaintiff as well as that of the defendants. The court further finds that the plaintiff has standing to enforce the restrictions. The court finds that the portion of the restrictions requiring prior approval of plans and specifications by Hoyt was personal to Hoyt, is no longer viable and may not be enforced by the plaintiff or any other owner of property in Overbrook.
The court finds that the plaintiff has shown that the defendants have taken clear and unequivocal steps to subdivide their property for purposes of sale in violation of the restrictions. The court further finds that the plaintiff is entitled to equitable relief to prevent the threatened violation. The enforcement of restrictive covenants by injunction is appropriate even absent irreparable harm "so long as such relief is not inequitable." Hartford Electric Light Co. v. Levitz, 173 Conn. 15, 22, 376 A.2d 381 (1977). In this case the court will enter an injunction preventing the defendants from subdividing their property for purposes of sale.
The court finds that the portion of the restrictions permitting only "one single family dwelling" on the defendants' property is valid and enforceable by the plaintiff. The evidence establishes that the defendants formerly intended to sell their present home on a lot of approximately one acre in area and move to the new structure upon its completion. After initiation of this litigation the defendant took the property off the market. There is no evidence as to the use to which the defendants' present home might be put if the defendants complete the new structure and occupy it as a residence. On the other hand, there is no evidence as to the uses to which the new structure might be put if the defendants continue to occupy their present residence. Until the defendants make actual use of more than one residence on their property, the court cannot determine that such use violates the restrictions. The court therefore concludes that the plaintiff is not, at this time, entitled to an injunction requiring the defendants to remove either structure on their property or requiring that a particular use cease.
The court will retain jurisdiction for a period of one year from the date of this opinion to permit the court to determine if any questions arise among the parties as to whether the actual or proposed use of any structure on the defendants' property violates the restrictive covenants.