Virtually-Century Outdated Restrictive Covenant Helps prevent House owner From Erecting Fence Along Home Line | Farrell Fritz, P.C.
In Dodge v. Baker, Plaintiff and Defendants are neighboring home entrepreneurs of two parcels of land situated in the Village of Sodus (the “Village”), in Wayne County, New York (the “Parcels”). Each individual parcel was established as the consequence of a subdivision by the primary grantor, Sodus Bay Heights Land Co. (“Land Company”), at some place amongst 1924 and 1937. In conjunction with that subdivision, Land Organization made two restrictive covenants to which both of those Parcels are matter. The 1st offers “[t]hat no line fence shall be erected on reported ton without the need of the created consent of the [Land Company], or its successors or assigns”, and the other delivers “[t]hat no needless trees or other obstructions shall be permitted on stated great deal which shall cover the watch of other citizens in Sodus Bay Heights.”
Right after getting their Parcel, Defendants applied for the vital permits essential to put up a fence together their house line. Nonetheless, Plaintiff informed them that their proposed fence violated the restrictive covenants. However, the Village issued Defendants a permit and Defendants erected the fence.
Thereafter, Plaintiff commenced an motion in the New York Point out Supreme Court docket, Wayne County, trying to get a declaration confirming that the restrictive covenants remained valid and enforceable and that Defendants’ fence violated these types of covenants. The Supreme Court docket denied Plaintiff’s motion for summary judgment with regard to both equally covenants. On the initial, it held that the Village was Land Company’s successor, and consequently the Village’s published consent was sufficient to allow for Defendants to build the fence. On the second, it identified that problems of truth existed with respect to irrespective of whether the fence hides Plaintiff’s check out. Plaintiff appealed.
The Fourth Section proficiently reversed. Though it agreed that factual issues existed with respect to the next restrictive covenant concerning Plaintiff’s see, it observed that the lessen court erred with regard to the to start with restrictive covenant. With regard to the phrase “line fence”, the Court observed that no ambiguity exists and its indicating is crystal clear. Additional, the reality that the Village issued Defendants a allow to build the fence is of little importance, as the restrictive covenant prohibits the fence irrespective of whether or not the Village makes it possible for it. Centered on the basic language of the unique deed, Land Firm granted the Village only its property passions with regard to the Parcels, but “did not transfer its corporate identification.” Appropriately, the Village was not Land Company’s company successor and hence lacked authority to permit Defendants’ design of the fence.
The Courtroom ultimately held that Plaintiff must have been granted summary judgment with respect to the first restrictive covenant, and it modified the get appropriately. It also “remit[ted] the make a difference to the Supreme Court docket for even more proceedings about any more proper relief”—presumably, the issuance of an get demanding that the fence be taken off.