Opinion
No. CV 04 4000303-S
April 25, 2008
MEMORANDUM OF DECISION
The plaintiffs, Daniel Jacobs and Donna Stevens-Jacobs (the "Jacobses") and Barry Groman and Angela Groman (the "Gromans"), have brought this action against the defendants, Rafael Cabrera ("Cabrera") and Alicia DiFederico ("DiFederico").
During the early stages of this litigation, Lorraine Velush and Christopher Velush, also property owners in the same subdivision, were named plaintiffs and Elaine Toth and Chase American Mortgage Co., LLC were named defendants. Both Velushes have withdrawn from the case and the remaining plaintiffs have withdrawn the action against Toth and Chase American.
The plaintiffs' second amended complaint alleges: (1) violation of a restrictive covenant; (2) fraudulent misrepresentation; and (3) slander of title. The plaintiffs bring the present action to determine rights in, and quiet title to, certain land, and seek a judgment declaring that a restrictive covenant that no animals, other than household pets, be maintained, housed or raised on certain property is enforceable. The plaintiffs seek injunctive relief, declaratory and quiet title judgments, compensatory and punitive damages, attorneys fees and various court orders with respect to the Southbury Land Records. The defendants filed an answer and denial and twenty special defenses, including, estoppel, laches, unclean hands, the statute of limitations, and the lack of a uniform plan of development. The plaintiffs, in turn, replied with denials of all of the defendants' special defenses.
This matter requiring a determination of the continuing viability of a provision in a land use restriction was tried to the court. The parties presented sworn testimony from multiple witnesses as to a complex set of facts and claims including a long history of the properties involved in the controversy and filed a multitude of exhibits. With the permission of the parties and in the presence of counsel, the court conducted a site visit of the subject properties. Thereafter, counsel for both parties filed post-trial briefs, including proposed findings of fact and conclusions of law together with detailed memoranda of law in support of their respective claims.
Having observed the testimony of the witnesses, reviewed and considered all full exhibits and other relevant evidence adduced during trial, including the court's observations of the subject properties acquired during the site visit, the court makes the following findings.
Background of Land Transactions
1. Fireside Hills subdivision is situated in Southbury, Connecticut. It originally consisted of five lots having a total area of approximately 37.74 acres as depicted on map no. 1371 on file in the Southbury Town Clerk's office. Plaintiffs' Exhibit 1.
2. Fireside Hills was further subdivided in 1972 by Elaine Toth ("Toth") to create a total of twelve lots, including Lot 12, which lot consisted of approximately 23.59 acres, as depicted on map no. 1346 on file in the Southbury Town Clerk's office. Plaintiffs' Exhibit 2.
3. Toth sold all twelve lots between October 24, 1972 and March 16, 1973, however, the evidence adduced at trial did not identify all the grantees of the twelve lots.
4. The Toth deeds utilized in the sale of the twelve lots included a deed restriction (the "Restriction").
The Restriction reads as follows: "1. No more than one unregistered motor vehicle may be kept on the premises, and any such motor vehicle shall have all its parts intact. 2. No animals shall be maintained, housed or raised on said premises except domestic household pets. 3. No construction equipment shall be continuously parked upon the premises. 4. The grantor, her heirs and assigns, reserve the right to modify or abrogate any of the above restrictions as to hereafter conveyed lots at any time."
5. Toth sold Lots 4 and 5 in January 1973 to George Piccot ("Piccot") by a single warranty deed, which deed included the Restriction. Plaintiffs' Exhibit 6.
6. Piccot sold Lot 4 in March 1973 to Terrence and Carolyn Thomas by warranty deed, which deed included the Restriction except that it deleted provision no. 4 which reserved the right of Toth to "modify or abrogate" the Restriction. Plaintiffs' Exhibit 7.
7. Toth sold Lot 12, the largest parcel consisting of 24.55 acres, in March 1973 to Piccot by warranty deed, which deed included the Restriction. Plaintiffs' Exhibit 8.
8. Piccot sold Lot 5, in September 1973 to John and Evelyn Perilli by warranty deed, which deed did not specifically include the Restriction but incorporated it by a reference by providing that Lot 5 was being conveyed subject to "Restrictions as to use set forth in a deed from Elaine Toth to George Piccot . . ." Plaintiffs' Exhibit 9.
9. Piccot sold a small portion of Lot 12 to Perilli in September 1975 by warranty deed, which deed did not specifically refer to the Restriction or to any specific deed. Plaintiffs' Exhibit 11.
10. Toth granted a waiver, in November 1976 in favor of Terrance and Carolyn Thomas, which is recorded on the land records and provides that "to the extent that she may do so, waives and modifies Paragraph 2" of the Restriction "so as to permit the keeping of horses" on Lot 4. Defendants' Exhibit A.
11. Lot 12 was re-subdivided in May 1977 by Piccot into three lots, (i) Lot 12A consisting of approximately 4.6 acres; (ii) Lot 12B consisting of approximately 6.8 acres; and (iii) Lot 12C consisting of approximately 12.2 acres, all as depicted on map no. 1667 on file in the Southbury Town Clerk's office. Plaintiffs' Exhibit 13.
12. Piccot sold Lot 12C in October 1977 to Cleo and Rita Pelletier by warranty deed, which deed made no specific reference to the Restriction nor was the Restriction incorporated by reference to any prior deed. The deed also reserved and excluded from the property conveyed, a 2.24-acre parcel. Plaintiffs' Exhibit 14.
13. Piccot sold Lot 12A in October 1977 to Leoneil and Catherine Bosley by warranty deed, which deed included the Restriction except that it deleted provision no. 4 which reserved the right of Toth to "modify or abrogate" the Restriction. Plaintiffs' Exhibit 16.
14. Piccot sold Lot 12B in February 1978 to James and Barbara Garratt by warranty deed, which deed included the Restriction except that it deleted provision no. 4 which reserved the right of Toth to "modify or abrogate" the Restriction. Plaintiffs' Exhibit 17.
15. Toth granted a waiver, dated October 18, 1978, in favor of Piccot and Joseph and Beverly Balog which is recorded on the land records and provides that she "hereby waives Paragraph 2 of certain covenants and restrictions contained in a deed from Elaine Toth to George Piccot . . . so as to permit the keeping of horses" on a 1.23-acre parcel of land situated between Lot 11 in Fireside Hills and Lot 7 in the English Farms subdivision, which parcel is now a part of Lot 11. Defendants' Exhibit B.
16. On October 20, 1978, Piccot sold the 1.23-acre parcel to Joseph and Beverly Balog by warranty deed, which deed made no specific reference to the Restriction nor was the Restriction incorporated by reference to any prior deed. Plaintiffs' Exhibit 18.
17. Piccot sold Lot 11 in November 1978 to John Cowan by warranty deed, which deed made no specific reference to the Restriction nor was the Restriction incorporated by reference to any prior deed. Plaintiffs' Exhibit 19.
18. Bosley sold Lot 12A in 1983 to the Gromans by warranty deed, which deed included the Restriction except that it deleted provision no. 4 which reserved the right of Toth to "modify or abrogate" the Restriction. Plaintiffs' Exhibit 20.
19. Pelletier sold Lot 12C in 1994 to Anton Souza by warranty deed, which deed reinstated the Restriction deleted in the prior conveyance of Lot 12C to Pelletier including provision no. 4 reserving the right of Toth to "modify or abrogate" the Restriction. Plaintiffs' Exhibit 21.
20. Garratt sold Lot 12B in 1997 to the Jacobses by warranty deed, which deed did not specifically include the Restriction but included a general reference that the property was being conveyed subject to "Restrictions and Covenants as cited in a deed dated February 18, 1978 and recorded March 1, 1978 in Volume 139 at Page 1098" (the Piccot to Garratt deed). Plaintiffs' Exhibit 23.
21. Souza sold Lot 12C on November 24, 2003 to Cabrera by warranty deed, which deed did not specifically include the Restriction but included a reference that the property was being conveyed subject to "Restrictions contained in a deed from Elaine Toth to George Piccot recorded in Volume 112 at Page 709 of said Land Records and restated in that certain Warranty Deed from Cleo Pelletier and Rita Pelletier to Antone J. Souza, Jr., dated June 15, 1994 and recorded June 15, 1994 in Volume 286 at Page 1048 of said Land Records." Plaintiffs' Exhibit 24.
22. Cabrera provided financial assistance to DiFederico for the purchase of Lot 12C and is the record owner. DiFederico is the holder of an option to purchase Lot 12C and resides there.
23. Toth granted a waiver, dated January 8, 2004, which is recorded on the land records and provides that she does "hereby waive and modify Paragraph 2 of restrictions contained in a deed from Elaine Toth to George Piccot . . . as to permit the keeping of horses" on Lot 12C (the "Lot 12C Waiver"). Plaintiffs' Exhibit 25.
Site View
As noted, the court visited the site in the presence of counsel. While the testimony from the witnesses and documentary evidence presented at trial was thorough, the opportunity for the court to view the properties on-site was particularly informative.
The subject properties are located in a rural setting and are heavily treed. The subject lots are irregularly shaped large parcels of land (Lot 12A, 4.57 acres, Lot 12B, 6.79 acres and Lot 12C, 9.99 acres). There are no readily discernable property lines. The Larkin State Park Bridle Trail (the "Bridle Trail"), which extends for about ten miles, abuts the rear boundaries of Lots 12B and 12C and a smaller portion of Lot 12A. Based on the court's observations during the site visit, the Bridle Trail appears to be approximately twenty to twenty-five feet wide.
Lot 12A
Lot 12A is a 4.57-acre parcel of land which has lengthy but direct access to Southford Road (Route 67). Lot 12A is adjacent to Lot 12B to the east and Lot 4 to the west. Lot 4 was granted a waiver by Toth to Thomas in 1976. A small portion of the rear boundary of Lot 12A abuts the Bridle Trail. Defendants' Exhibit I. The plaintiffs Groman purchased the property in 1983 from Bosley. As noted, the deed included the Restriction except that it deleted provision no. 4 which reserved the right of Toth to "modify or abrogate" the Restriction.
Lot 12B
Lot 12B is a 6.79-acre parcel with access to Southford Road (Route 67). Lot 12B is adjacent to, and partially bounded by, Lot 12C to the east and Lot 12A to the west and a small portion of its rear boundary line abuts the Bridle Trail. Lot 12B is separated from Lot 4 by a small portion of Lot 12A. The Jacobses purchased the property in 1997 from Garratt. As noted, the deed did not specifically include the Restriction but included a general reference that the property was being conveyed subject to "Restrictions and Covenants as cited in a deed dated February 18, 1978 and recorded March 1, 1978 in Volume 139 at Page 1098."
Lot 12C
Lot 12C is a 9.99-acre parcel with access to Southford Road (Route 67). Cabrera purchased Lot 12C in 2003 from Souza. As noted, the deed did not specifically include the Restriction but included a reference that the property was being conveyed subject to "Restrictions contained in a deed from Elaine Toth to George Piccot recorded in Volume 112 at Page 709 of said Land Records and restated in that certain Warranty Deed from Cleo Pelletier and Rita Pelletier to Antone J. Souza, Jr., dated June 15, 1994 and recorded June 15, 1994 in Volume 286 at Page 1048 of said Land Records."
The Presence of Horses in Fireside Hills Lot 12A
No evidence was submitted with respect to the presence or keeping of horses on Lot 12A. Barry Groman testified that Lot 12C was "not at all" visible from Lot 12A in the summer and "just barely" visible in the winter. He also testified that he knew there were horses and a small barn on Lot 12C about twelve years earlier, but he only learned about the defendants' keeping of horses on Lot 12C from the Jacobses. Groman also stated that he did not know about the Toth waiver granted to Lot 12C until the time of his deposition.Lot 12B
There is no evidence in the record that horses have been kept on Lot 12B. Susan Santiso, who owns Lot 11, testified that Donna Stevens-Jacobs was "very nice" and granted her permission to regularly cross the Jacobses' property to access the Bridle Trail. At times, Santiso testified that she and as many as five other riders often crossed the Jacobses' property on their way from Lot 11 to the Bridle Trail, occasionally stopping to speak with her.
Santiso said she once asked Donna Stevens-Jacobs why, owning so much land, she did not have any horses and Stevens-Jacobs replied that she "loved to" but did not have the time since she and her husband "were involved in racing cars at Lime Rock." On cross examination, Stevens-Jacobs admitted that she talked to Santiso about getting horses for herself and her daughter but emphasized that "she never did."
Lot 12C
Lori Souza testified that she lived in the home on Lot 12C with her husband, Antone Souza, from 1994 until 1999. She testified that shortly after they moved to the property they acquired two horses (named "Jake" and "Dreams"), goats, a rooster and chickens that were housed in a coop on the property. The defendants submitted photographic evidence of a goat, a horse, a barn and paddock fencing on Lot 12C taken 1998-99 (Defendants' Exhibit PP). She stated that the goats and chickens roamed the entire property and were very visible. She also testified that after the Jacobses' move to Lot 12B, their daughter came to Lot 12C nearly every day to pet the horses. She further testified that she rode "Dreams" over the Jacobses property to get to the Bridle Trail and that on one occasion Donna Stevens-Jacobs complained about horse manure in the shared driveway. Souza also testified that she rode to the Bridle Path with others. She further testified that she often rode her horses in plain view of the Groman's home and that the Gromans never complained. After a fire at the Souza house in 1999, she lived in a trailer on the property. Thereafter, her husband transferred title to the property to his parents, who sold it to Cabrera in November 2003. She testified that the horses remained on the property until late in 1999.
Karen Laude, a former neighbor, confirmed in her testimony that the Souzas maintained horses on Lot 12C and even recalled that one of the horses was named "Jake."
Jennifer Lawton testified that when she visited her parents (Garratt), whose home was on Lot 12B, she observed horses on Lot 12C during the period 1994 through 1996, but did not recall seeing them after that.
Donna Stevens-Jacobs testified that horses on Lot 12C were visible from her home and front yard when there were no leaves present on the trees between the properties. Yet, she claims that she did not see horses and riders on Lot 12C prior to the commencement of this litigation. DiFederico testified that after the closing, she and several friends rode horses on Lot 12C two or three times per week and traversed the Jacobses' property to access the Bridle Trail between November 2003, until their dispute arose in June 2004, which included the winter of 2003-2004 when no leaves were present.
Shortly after she moved into the renovated house on Lot 12C in 2005, DiFederico began permanently keeping two horses in a small barn on Lot 12C and continued to do so though the time of trial.
On June 7, 2004, the local district department of health granted Cabrera and DiFederico permission for a thirty-foot by eighty-six-foot barn on Lot 12C, following which, the town zoning authority issued a building permit.
Lot 11 a/k/a Lot 11A
Lot 11 a/k/a Lot 11A is adjacent to Lot 12C. A portion of Lot 11 (1.23 acres) was part of Lot 12 prior to the re-subdivision of Lot 12 by Piccot and is part of Fireside Hills. Susan Santiso ("Santiso") bought the property from her parents (Balog) in 1999. Balog purchased it from Piccot in 1978. At that time, Balog obtained a waiver of provision no. 2 of the Restriction from Toth to permit the keeping of horses on the property.
Santiso testified that she lived on the property with her parents from 1978 to 1983, when she married, and that during that time she and her parents kept horses and goats on the property. After she married, she continued to visit the property daily to care for the animals, until 1999 when she purchased and returned to the property. In 1995, her sister moved away taking her two horses with her, and, for a period of time, only goats were on the property. Santiso purchased horses for herself and her daughter shortly after she resumed her residency at the property.
As noted, the Jacobses gave Santiso general permission to ride, with others, over their property, Lot 12B, to get to the Bridle Path.
Laude-Iseppi Property
Behind the Jacobses' and Gromans' properties, separated only by the Bridle Trail, is 173 Jeremy Swamp Road (the "Laude-Iseppi Property"). Although the Laude-Iseppi Property is not part of the Fireside Hills subdivision, based on the court's site visit, the court finds that the Jacobses' property overlooks the Laude-Iseppi Property which is clearly visible from Jacobses' property.
Karen Laude testified that she lived on the Laude-Iseppi Property from 1990 to August 1997. During that time, she kept a horse on the property and the property also had a prominent barn and horse paddock.
Kendra Iseppi testified that she purchased the Laude-Iseppi Property from Laude, added an additional barn and has since then kept between three and five horses on the property. Iseppi, a retired registered nurse, testified that she regularly observes five horses on the Bridle Trail during weekdays and ten to fifteen horses per day on the weekend.
When asked if she ever spoke to Donna Stevens-Jacobs, Iseppi recalled a conversation during which Stevens-Jacobs told her how much she and her daughter "loved" the Iseppi's horses.
The Effect of the Restriction on Lot 12c
The plaintiffs assert that their properties (Lots 12A and 12B) and that of the defendants (Lot 12C) remain subject to the Restriction without modification. The issue for the court to decide is whether the plaintiffs have sustained their burden of proving that the lots were developed under a uniform plan of development, thereby conferring the right to enforce the Restriction and whether the waiver of the Restriction granted by Toth viably permits the keeping of horses on Lot 12C.
"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 his benefit and protection of his adjoining land which he retains." (Internal quotation marks omitted.) DaSilva v. Barone, 83 Conn.App. 365, 371-72, 849 A.2d 902, cert. denied, 271 Conn. 908, 859 A.2d 560 (2004).
In light of Toth's clearly expressed reservation of her personal right to "modify or abrogate" the Restriction "at any time" and her subsequent delivery of the waiver modifying the Restriction to permit the keeping of horses on Lot 12C, the plaintiffs have the burden to show that they have the right to challenge the validity of the waiver and to enforce the Restriction. In order to do so, they must show that the common grantor intended to develop the lots in accordance with a uniform plan of development. DaSilva v. Barone, supra, 83 Conn.App. 372.
"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 . . . The factors that help to negate the presence of a developmental scheme are: (1) the grantor retains unrestricted adjoining land; (2) there is no plot of the entire tract with notice on it of the restrictions; and (3) the common grantor did not impose similar restrictions on other lots." (Citations omitted.) Id.
The foregoing are not an exclusive list of factors which affirm or negate the existence of a uniform plan of development. Other factors noted in Powell on Real Property as tending to support the existence of a uniform plan are the observance of the covenants by the lot owners over a period of time, physical similarity of the lots and compatibility and interrelationship of portions of the land, and language in the deeds indicating that the covenant is to run, thus implying that the lot owners could enforce, since the grantor no longer had an interest in the land. Factors found by the courts to be evidence against the existence of a uniform plan include lack of uniformity of lot size and language in the deed showing that the grantor personally had the right to enforce the covenant. G. Korngold, Private Land Use Arrangements: Easements, Real Covenants, and Equitable Servitudes (2d Ed. 2004) § 9.09, p. 344. "No hard rules exist and no single fact seems to be determinative. Rather, often it seems that the courts could decide either way, based on the evidence." Id., 343.
"In the absence of an express statement in the covenant itself, the intention of the parties must ordinarily be determined as a matter of fair inference from the language of the covenant, the nature of the restriction granted or reserved and all the circumstances surrounding the transaction." Bauby v. Krasow, 107 Conn. 109, 114, 139 A. 508 (1927).
Restrictive covenants "being in derogation of the common-law right to use land for all lawful purposes that go with title and possession . . . are not to be extended by implication." Easterbrook v. Hebrew Ladies Orphan Society, 85 Conn. 289, 296, 82 A. 561 (1912). If their language is of "doubtful meaning, it will be construed against rather than in favor of the covenant." Id. "The party seeking to enforce a restriction has the burden of proving that his or her property is benefitted." G. Korngold, supra, p. 345.
The evidence in the present case suggests that a uniform plan of development did not exist.
The defendants argue that there was no common scheme or uniform plan of development by Toth, that she granted a valid waiver and therefore, there are no enforceable restrictions on Lot 12C. They point out that none of the deeds from Toth contain any provision that the Restriction may be enforced by or is for the benefit of any other grantee nor is to run with the land. As further evidence of the lack of any intention to create a uniform plan, the defendants further point out that there is no separate declaration of restrictive covenants recorded on the land records.
Toth's attorney, James T. Ryan ("Ryan") drafted the Restriction for Toth and represented her in the sale of all of the lots. Ryan testified that Toth's intention by placing the Restriction in each deed rather than recording a separate declaration of restrictions was to preserve "flexibility" including the option to make amendments to the covenants as they may relate to the sale of lots in the future.
The conclusion that the subject lots are not part of a uniform plan of development is supported by Attorney Ryan's testimony and is further supported by Toth's actions. Toth continued to grant, and lot owners accepted, waivers long after she sold the last lot to Piccot. The court also finds it significant that all the waivers granted by Toth were limited to the specific exemption of horses from the operation of provision no. 2 of the Restriction as opposed to a full release of the Restriction. Despite the language of the Restriction prohibiting the "raising of animals," the consistent pattern of behavior of releasing "horses" by Toth, coupled with the pervasive presence of horses and rural character of the entire surrounding neighborhood casts doubt on whether the Restriction was ever intended, or could be reasonably interpreted as encompassing horses in the first place.
Furthermore, "[t]he area covered by a uniform plan must be so defined as to be clearly ascertainable; 5 R. Powell, [Real Property] § 672, p. 60-25; so that a judgment affecting rights arising under such a scheme will be susceptible of enforcement . . . [U]nless the boundaries of the area of uniform development can be ascertained from the evidence admitted at trial, the plaintiffs' case must nonetheless fail." (Citations omitted.) Contegni v. Payne, 18 Conn.App. 47, 58-59, 557 A.2d 122, cert. denied, 211 Conn. 806, 559 A.2d 1140 (1989).
A total of six different subdivision maps were filed by Toth and Piccot in the land records. None of the maps makes any reference to the Restriction or to a uniform plan and all of the maps have variations of one kind or another. The initial subdivision by Toth and the re-subdivision of Lot 12, out of which Lots 12A, 12B and 12C were created, together with Piccot's carving out smaller parcels from the original Lot 12, including one without zoning approval, together with the inclusion of the Restriction in some of Piccot's subsequent deeds, but not in others, creates difficulty in ascertaining the precise boundaries of the restricted parcels. The court notes that the plaintiffs' testimony showed their great uncertainty as to which properties were situated within or outside the Fireside Hills subdivision when they purchased their properties.
Reliance
Not only does the evidence fail to show a uniform plan of development but the plaintiffs have also failed to credibly demonstrate the equitable requirement of their reliance on the Restriction in connection with the purchase of their properties. "When the existence of the general plan is clear, the purchasers' reliance on the developer's obligation to convey all lots subject to the general-plan restrictions is reasonable, unless the developer has expressly retained the right to deviate from the plan, or the facts or circumstances otherwise establish that the purchasers did not reasonably rely on effectuation of the general plan when they bought their lots." 1 Restatement (Third), Property, Servitudes § 2.14, p. 191 (2000).
Mannweiler v. LaFlamme, 46 Conn.App. 525, 700 A.2d 57, cert. denied, 243 Conn. 934, 702 A.2d 641 (1997), makes it clear that the enforcement of a restrictive covenant is governed by principles of equity. "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." (Emphasis added.) Id., 535-36.
In an action governed by equitable principles, the court is called upon to balance the equities between the parties. "The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court." Kakalik v. Bernardo, 184 Conn. 386, 395, 439 A.2d 1016 (1981).
Reliance by the Plaintiffs
The Jacobses claim that they purchased Lot 12B in reliance on the Restriction.
Daniel Jacobs is self-employed in the auto repair business. Donna Stevens-Jacobs is an owner of a real estate mortgage company. Daniel Jacobs testified that his wife, Donna Stevens-Jacobs was a "real estate professional" who took charge of the purchase, but that he was also fully engaged in the transaction.
Stevens-Jacobs testified that she was "familiar" with the warranty deed from Toth to Piccot, which is referenced in the deed from Garratt to the Jacobses. Stevens-Jacobs testified that her seller, Barbara Garratt, is a real estate agent and that they explicitly discussed the Toth to Piccot deed and Restriction at the closing. The deed from Toth to Piccot of Lot 12, as recorded, (Plaintiffs' Exhibit 8) which deed originally imposed the Restriction, bears a clear notation by the town clerk to "See waiver V132 — 315" referring to the Toth waiver in favor of Lot 4 recorded at Volume 132 at Page 315. (Defendants' Exhibit A.)
The express terms of the Toth to Piccot deed, as recorded and indexed in the land records, have bearing on the issue of the plaintiffs' reliance. "The language [of a servitude] should be interpreted to accord with the meaning an ordinary purchaser would ascribe to it in the context of the parcels of land involved . . . 1 Restatement (Third), Property, Servitudes § 4.1, comment (d), pp. 499-500 (2000)." (Internal quotation marks omitted.) Dent v. Lovejoy, 85 Conn.App. 455, 463-64, 857 A.2d 952 (2004), cert. denied, 272 Conn. 912, 866 A.2d 1283 (2005). In the present case, any "ordinary purchaser" of Lot 12A or Lot 12B, including the plaintiffs, would be expected to have been put on notice by the express reservation by Toth of her right to "modify or abrogate" the Restriction "at any time" as set forth in the Piccot deed and also by the town clerk's notation of the recorded waiver that Toth, in fact, had exercised that right and continued to hold it, so as to negate any justifiable reliance by the plaintiffs on the continuing viability of the Restriction.
In Eis v. Meyer, 213 Conn. 29, 33, 566 A.2d 422 (1989), our Supreme Court denied the plaintiff's attempt to avoid a burdensome easement, holding that "[t]he deed of conveyance specifically referred to the easement and the plaintiffs were aware of the terms [and conditions] of the easement when they purchased the property . . ." (Emphasis added; internal quotation marks omitted.)
The plaintiffs argue that the Cabrera Waiver "is outside the chain of title to Lots 12A, 12B and 12C" because Toth granted it after she no longer held any interest in Fireside Hills. "[E]very person who takes a conveyance of an interest in real estate is conclusively presumed to know those facts which are apparent upon the land records concerning the chain of title of the property described in the conveyance . . . The law implies notice on the ground that it is conclusively presumed that a person will not purchase an interest in a piece of land without examining the condition of the record. Such an act would be required by common prudence." (Citation omitted; internal quotation marks omitted.) Lee v. Duncan, 88 Conn.App. 319, 326, 870 A.2d 1, cert. denied, 274 Conn. 902, 876 A.2d 12 (2005). The Toth to Piccot deed of Lot 12 is clearly within the chain of title to Lots 12A, 12B and 12C.
The Jacobses also testified that one of the reasons that they moved from their former home was that a former neighbor "acquired pigs" in a neighborhood of homes built on small lots. A witness, Laurie Gmuer, testified that she lived in the former Jacobses' neighborhood and drove a school bus daily from 1987 to 2000 past the Jolott pig farm property and that pigs and cows were present throughout that entire period of time. After Gmuer's testimony, Donna Stevens-Jacobs corrected her testimony to say that she moved because the neighbor had increased the number of pigs.
When asked what her true concerns with horses being kept on Lot 12C were, Donna Stevens-Jacobs answered that she was concerned about liability and increased traffic on the shared driveway, building activity by contractors, and that she was bothered by the smell of horses. When Stevens-Jacobs was asked if she ever smelled horses before DiFederico moved in she replied "Yes," but maintained that she could discern the difference caused by the addition of the two horses on Lot 12C.
Donna Stevens-Jacobs also acknowledged that she saw the Laude-Iseppi property behind Lot 12B prior to her purchase of Lot 12B, including the existence of a barn and paddock on the property.
In her testimony, Stevens-Jacobs initially stated that at the time that the Jacobses purchased Lot 12B, she did not know if the Laude-Iseppi property was part of the Fireside Subdivision or bound by the Restriction. However, shortly thereafter, she changed her testimony to say that she was told, and that it was obvious, that the Laude-Iseppi property was not in the subdivision and not subject to the Restriction.
When asked whether the distance between her home and the Laude-Iseppi Property or the Cabrera/DiFederico property was greater, Donna Stevens-Jacobs replied that she "wasn't good with numbers," but thought the Laude-Iseppi property was farther away. When DiFederico was asked how far her home was from the Jacobses' home, her response was that she thought it was between "500 and 600 feet." Distance lines are depicted on a professional land survey, Defendants' Exhibit XX, which show the distance between the Jacobses' residence and the barn on the Laude-Iseppi property to be 178.7 feet, and the distance from the Jacobses' residence to the new barn on Lot 12C to be 436.6 feet (although the distance from the Jacobses' residence to the small barn situated on Lot 12C at the time that the Jacobses purchased Lot 12B, is shown on the survey as being 280.4 feet).
As pointed out, the plaintiffs' testimony showed their great uncertainty as to which properties were situated within or outside the Fireside Hills subdivision when they purchased their properties. This vague and inconsistent testimony seriously undermines the claim that the plaintiffs relied on the Restriction.
Groman testified on direct examination that he was aware of the Restriction, having seen it in the deed at the closing. When asked on cross examination, "Did you purchase your property in reliance on the restrictive covenant?" Groman replied, "No."
In the present action, the plaintiffs have not credibly demonstrated any reliance on the Restriction.
Reliance by the Defendants
DiFederico testified that Lot 12C first came to her attention when she saw a "for sale" sign on the property while riding on the Bridle Trail. She subsequently contacted the real estate agent, Noreen Urbanski, who showed her the real estate listing (Defendants' Exhibit K). The listing literature described the property using the following terms, "3-Bay Pole Barn, 9.99 acre w/horse stall and borders State property/bridle path."
DiFedrico testified that prior to the closing on Lot 12C, she learned that the property was subject to a restriction. DiFederico discovered from a search of the land records that Attorney Ryan's name appeared on a recorded waiver of the Restriction from Toth permitting the keeping of horses on another lot. DiFederico then had Attorney Jeanmarie Riccio ("Riccio") prepare a similar waiver and contacted Ryan to get it signed by Toth for Lot 12C. Ryan told Riccio that he did not believe that Toth could waive the Restriction, but when Riccio disagreed with his opinion, Ryan remarked "you could be right" and agreed to forward it to Toth in New Mexico. Ryan also gave Toth's phone number to DiFederico. DiFederico made several phone calls to obtain the waiver. DiFederico spoke with Toth's husband on one occasion and later with her son who told her that his father was "taking care of it." Cabrera purchased Lot 12C on November 24, 2003. Toth signed the waiver dated January 8, 2004 and it was recorded on the Southbury Land Records on January 21, 2004. DiFederico testified that she and Cabrera would not have gone forward with the closing on Lot 12C without the assurance she had received that the waiver was agreed to and would be forthcoming.
"Equity depends essentially upon the particular circumstances of each individual case. That being so, there can be no established rules and fixed principles laid down for its application, without destroying its very existence and reducing it to positive law." (Emphasis in original; internal quotation marks omitted.) Natural Harmony, Inc. v. Normand, 211 Conn. 145, 150, 558 A.2d 231 (1989).
The defendants' reliance on: (i) the real estate listing information, (ii) their knowledge that waivers had been granted to other lot owners, (iii) their observations of the presence of horses on several neighboring properties, (iv) their credible testimony that they would not have purchased and completed construction of the residence on Lot 12C if not for their good faith belief that a valid waiver permitting the keeping of horses was promised and valid, all weigh heavily in their favor as against the plaintiffs' claims. On the other hand, the court concludes that the Jacobses have failed to establish a credible case for having relied on the Restriction in connection with their purchase of Lot 12B and by the unequivocal admission by Groman that no reliance was placed on the Restriction in connection with the purchase of Lot 12A.
Conclusion
A review of the cases where subdivisions have been found to have been established under a uniform plan of development makes it difficult to view the present case in the same light. The common threads in those cases, in contrast to the case at bar, often involve a much greater number of smaller lots of uniform size. The cases most frequently involve actions brought to enforce architectural standards or covenants barring commercial activity, or the erection of a multi-family structure within a single-family development.
As noted, the court visited the site. The subject lots are located in a rural setting, dotted with barns and ribbons of paddock fencing. The subject lots are large, heavily wooded, irregularly-shaped parcels of land ranging in size from 4.6 to 9.9 acres all of which abut an active bridle trail. The residences on the lots are separated by great distances. Clearly, the keeping of horses in Fireside Hills is not a case of "a pig in a parlor."
The Jacobses' opposition to the keeping of horses in the neighborhood is incongruous with their encouragement or tolerance of the keeping of horses by neighbors by their permitting riders to regularly cross over their property to access the Bridle Trail. This opposition is not made any easier to understand by Donna Stevens-Jacobs' testimony. Stevens-Jacobs testified that she "grew up on a farm and had a horse" and rode horses on the Bridle Path for several years before she purchased her home. Her daughter testified that she and her mother took riding lessons together. When asked by her attorney whether she likes horses, her simple reply was "Love them."
Somewhat revealing is Susan Santiso's testimony. Santiso testified that Stevens-Jacobs approached her to support a zoning initiative begun by Stevens-Jacobs to limit the number of horses permitted by zoning telling Santiso that DiFederico was in the process of building a barn "as big as an aircraft hanger."
The barn, having been approved by the town and constructed, can remain, whether it houses horses or not.
The plaintiffs have complained that other horses frequently "visit" DiFederico's horses on Lot 12C, but acknowledge that there is nothing in the Restriction which would prohibit that activity.
The court is mindful of the plaintiffs' argument that a finding by the court that the defendants are permitted to keep horses on Lot 12C while Lots 12A and 12B remain burdened by the Restriction, would result in Lot 12C being more valuable than Lots 12A and 12B. The court does not find this argument compelling.
The evidence shows that the plaintiffs should have been and, in fact, were aware that horses were allowed to be kept or actually present on neighboring properties at the time they purchased their properties.
Based on the evidence, the totality of the surrounding circumstances and a balancing of the equities, the court finds that the keeping of horses on Lot 12C by the defendants does not violate provision no. 2 of the Restriction. Accordingly, the court enters judgment in favor of the defendants on count one and the plaintiffs' request for an order enjoining the defendants from the keeping of horses on Lot 12C is denied.
Fraudulent Misrepresentation
The plaintiffs allege in count two of their complaint that the defendants made fraudulent representations to Toth in order to induce Toth to grant the waiver and that Toth "would not have signed the Waiver if she had known that Plaintiffs objected to the maintenance of horses on Lot 12C."
Neither Elaine Toth, nor any member of her family involved with the waiver, provided any testimony in court, nor was any deposition testimony offered. The court finds that the plaintiffs have failed to sustain their burden of proof that any false statements or misrepresentations were made by the defendants, or that any communication took place between the defendants and Toth, or to show that the plaintiffs have standing to assert any such claims, even if such claims could be proved.
Judgment is entered in favor of the defendants on count two.
Slander of Title
The plaintiffs have alleged in count three of their complaint that the filing of the Lot 12C waiver from Toth slanders their titles to their Lots 12A and 12B because the legal description in the waiver makes reference to the shared driveway.
"A cause of action for slander of title consists of the uttering or publication of a false statement derogatory to the plaintiff's title, with malice, causing special damages as a result of diminished value of the plaintiff's property in the eyes of third parties. The publication must be false, and the plaintiff must have an estate or interest in the property slandered. Pecuniary damages must be shown in order to prevail on such a claim." (Internal quotation marks omitted.) Gilbert v. Beaver Dam Ass'n. of Stratford, Inc., 85 Conn.App. 663, 672-73, 858 A.2d 860 (2004), cert. denied, 272 Conn. 912, 866 A.2d 1283 (2005).
Since the plaintiffs failed to show that the recorded waiver was either false or recorded with malice or to show any pecuniary damages, judgment is entered for the defendants on count three.
Quiet Title
The plaintiffs in count four of their complaint allege that "all plaintiffs have an interest in Lot 12C," that the Jacobses have an interest in the shared driveway and the plaintiffs seek an order enjoining the defendants from "asserting any claim they may have to Lot 12C or the Common Driveway by virtue of the Waiver."
The evidence adduced at trial showed that Piccot granted an easement in favor of Lot 12C for a shared driveway over Lot 12B when he subdivided Lot 12. By its express terms, the easement included in the deed to Lot 12C granted the owner of Lot 12C the right "to pass and repass for all purposes" without limitation. There was no prohibition of animals in the easement and the deed itself did not even mention the Restriction.
On the basis of the evidence and the facts found, the court rules in favor of the defendants on count four and the plaintiffs' request for an order enjoining the defendants from asserting any claim to Lot 12C by virtue of the waiver is denied.
Declaratory Judgment
In count five of their complaint, the plaintiffs seek a judgment declaring that the waiver is void and that the Restriction is enforceable as to Lots 12A, 12B and 12C.
"It is the well established rule that [t]he mere fact that a party sees fit to institute an action for a declaratory judgment in no way operates to alter or shift the ordinary rules as to the burden of proof by choosing the procedure of such an action." (Internal quotation marks omitted.) Scott v. General Iron Welding Co. 171 Conn. 132, 139, 368 A.2d 111 (1976).
As stated earlier, the evidence presented at trial has established that provision no. 2 of the Restriction does not prevent the keeping of horses on Lot 12C. Accordingly, there is no need to further declare the rights of the parties with respect to the subject properties and the plaintiffs' request for a declaratory judgment is denied.
No damages or costs are awarded to either party.