Bruno v. Hanna
| Decision Date | 17 October 1960 |
| Docket Number | No. A--571,A--571 |
| Citation | 63 N.J.Super. 282,164 A.2d 647 |
| Parties | Emeric BRUNO et al., Plaintiffs-Respondents, v. John HANNA et al., Defendants-Appellants. |
| Court | New Jersey Superior Court — Appellate Division |
Frank Romano, Fort Lee, for plaintiffs-respondents.
Joseph Feinman, Union City, for defendants-appellants.
Before Judges PRICE, GAULKIN and SULLIVAN.
The opinion of the court was delivered by
SULLIVAN, J.A.D.
This appeal involves the construction of certain restrictive covenants of record insofar as they affect ten lots of vacant land in Ridgefield, New Jersey, owned by plaintiffs and on which plaintiffs propose to erect duplex dwellings for two or more families. Defendants, who are also property owners in the area in which the covenants are effective, contend that such covenants limit the use of the lands to a one-family dwelling on each lot. The trial judge, however, while he interpreted the covenants to mean that plaintiffs may erect only residences or dwelling houses and that not more than one residence or dwelling house may be erected on any one lot, also held that:
The restrictions, which were created in 1907, embrace about 67 blocks containing some 1,287 lots. Because of the large number of property owners involved, defendants, twelve in number, were joined as class representatives. Eight of them appeared at the trial to oppose plaintiffs' claims for relief, and two of them prosecute this appeal.
The restrictions are five in number but only two of them are involved in this suit. They are as follows:
'That no more than one residence or dwelling house shall be erected on any lot hereby conveyed * * *.'
'That the premises hereby conveyed shall be used for dwelling purposes only * * *.'
It is important to note that the first restriction deals with what may be erected on a lot, and the second deals with the use to which the premises may be put.
Plaintiffs, who are desirous of erecting duplex dwellings for two or more families on each lot, assert that such intended erection and use does not violate the foregoing restrictions and point to numerous two-family houses, duplex units and multi-family apartments in the area affected by the restrictions. Some of these are in the immediate vicinity of plaintiffs' lands.
Defendants claim that the phrase 'one residence or dwelling house' in the covenant clearly indicates an intent to restrict the use of the property to one dwelling unit on each lot; i.e., a single family dwelling.
In making its ruling that the covenants did not restrict plaintiffs to the erection of single family houses on each lot, the trial court stated that the existence of numerous multi-family dwellings in the area 'confirms the court's opinion that the interested parties have always adopted as a practical interpretation of the covenant that it does not limit the use of the lots to one-family dwellings alone.' The court rejected any notion that the restrictions had been abandoned.
The covenants under consideration, insofar as use is concerned, provide nothing more than that the premises 'shall be used for dwelling purposes only.' There is no attempt to restrict the use to single family occupancy. The other covenant specifies 'That no more than one residence or dwelling house shall be erected on any lot.' The word 'one' obviously refers to the number of buildings, and the words 'residence or dwelling house' indicate the permissible type of structure.
Restrictions on the use to which land may be put are not favored in law because they impair alienability. They are always to be strictly construed, and courts will not aid one person to restrict another in the use of his land unless the right to restrict is made manifest and clear in the restrictive covenant. Hammett v. Rosensohn, 46 N.J.Super. 527, 135 A.2d 6 (App.Div.1957), affirmed 26 N.J. 415, 140 A.2d 377 (1958). Illustrative of this policy are the following cases.
In Crane v. Hathaway, 4 N.J.Misc. 293, 132 A. 748 (Ch.1926) a covenant that 'only one dwelling house...
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...255 N.J.Super. 65, 72, 604 A.2d 635 (App.Div.), certif. denied, 130 N.J. 17, 611 A.2d 655 (1992); see also Bruno v. Hanna, 63 N.J.Super. 282, 285-87, 164 A.2d 647 (App.Div.1960). In such a case, "[t]he precise form of a covenant is of little consequence if the intent is reasonably clear, an......
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