Gardner v. Jefferys

• Decision Date: 04 May 2005
• Docket Number: No. 04-022.,04-022.
• Citation: 878 A.2d 259
• Parties: Sheldon GARDNER v. William JEFFERYS III, Susan Jefferys, George Soules and Janice Soules.
• Court: Vermont Supreme Court

878 A.2d 259

Sheldon GARDNER v. William JEFFERYS III, Susan Jefferys, George Soules and Janice Soules.

No. 04-022.

Supreme Court of Vermont.

May 4, 2005.

Motion for Reargument Denied June 21, 2005.

Present: REIBER, C.J., JOHNSON, J., BURGESS, Administrative Judge, Specially Assigned, ALLEN, Chief Justice (Ret.), Specially Assigned, GIBSON, Associate Justice (Ret.), Specially Assigned.

ENTRY ORDER

¶ 1. Plaintiff Sheldon Gardner appeals the superior court's determination that a restrictive covenant in his deed runs with the land to the benefit of adjacent landowners, defendants George and Janice Soules and defendants William and Susan Jefferys. We affirm.

¶ 2. In 1957, William Jefferys Jr. and his wife Ena, the parents of defendant William Jefferys III, purchased approximately two hundred acres of farm land in Fayston, Vermont known as the Strong Farm. Beginning in 1966, the elderly Jefferys began selling off parcels of the farm. In 1969, plaintiffs Sheldon and Carin Gardner purchased, by warranty deed, a ten-acre parcel of undeveloped land from the Jefferys. The deed contains a restrictive covenant providing that a specified

part of the premises . . . shall forever be and remain open and free of all buildings and structures, except the right to construct on said open land a private swimming pool, and/or tennis court, and, the usual fences and structures appurtenant thereto and such other buildings and structures as meet the approval, in writing of the Grantors herein, their heirs and assigns.

¶ 3. The provision further states that rights secured therein are "to be enjoyed by the Grantors, their heirs and assigns." In 1975, the Jefferys conveyed a five-acre parcel of land to Karin Souminen, who, in turn, sold the parcel to George and Janice Soules in 1987. The Soules moved to Vermont and began to reside on the property in 1990, after they constructed a house there. Their property is located above the Gardners' land. In 1979, the elderly Jefferys conveyed the remainder of their Fayston property to their son, William Jefferys III, and his wife, Susan.

¶ 4. In the late summer and early fall of 1999, the Gardners wrote to William and Susan Jefferys twice requesting approval to build a two-story structure within the area restricted by the above-quoted covenant. The Jefferys gave the Soules a copy of the request. In June 2000, one month after the Gardners obtained a permit to build a fifteen-foot accessory structure in the restricted area, the Soules wrote the Gardners a letter advising that they were interested parties to the restrictive covenant. In September 2000, after receiving a letter from the town zoning administrator informing them that the posts and net placed on their open field were more similar to a temporary badminton or volleyball net than a permanent tennis court requiring a permit, the Gardners filed a declaratory judgment action seeking a determination of the effect of the restrictive covenant in their deed. The Soules responded by filing a counterclaim.

¶ 5. In May 2001, the Gardners began constructing a shed in the restricted area. Shortly thereafter, the superior court granted the Soules' request for a preliminary injunction halting the construction. In the fall of 2001, the Gardners began planting white pines in the restricted area directly in the Soules' view. The Soules sought to enjoin the Gardners from planting the trees, but, following a hearing, the superior court denied the request for a preliminary injunction. In July 2003, following four days of a hearing on the merits of the declaratory judgment action, the superior court ruled that the benefit of the restrictive covenant ran with the land and was enforceable by both the Soules and the Jefferys, and that the Gardners had violated the covenant by commencing construction of the proposed shed and by planting trees in the restricted area. Accordingly, the court enjoined the continued existence of the shed and the trees. Further, the court prohibited the Gardners from allowing plants or crops in the restricted area to exceed six feet in height. On appeal, plaintiff Sheldon Gardner argues that the superior court erred (1) by concluding that the restrictive covenant runs with the land to the benefit of the Soules and the Jefferys; (2) by requiring him to ensure that vegetation in the restricted area does not exceed six feet in height; and (3) by determining that the restrictive covenant prohibits him from constructing the proposed shed and planting the trees.

¶ 6. Plaintiff first contends that the restrictive covenant does not run with the land to the benefit of defendants because the parties intended the covenant to bind only the grantors, their heirs and assigns, and neither the Soules nor the Jefferys are heirs or assigns of the grantors. We do not find this argument persuasive. Four requirements must be met for a restrictive covenant to "run with the land" so that successor property owners may enforce its burdens and benefits: (1) the covenant must be in writing; (2) the parties to the covenant must have intended that the covenant run with the land; (3) the covenant must "touch and concern" the land; and (4) privity of estate must exist between the parties. Rogers v. Watson, 156 Vt. 483, 487, 594 A.2d 409, 411 (1991). Plaintiff argues only that the second requirement is not met in this case. Intent that a restrictive covenant is to run with the land may be either express or implied, and may be shown by extraneous circumstances. Id. at 488, 594 A.2d at 412; see Welch v. Barrows, 125 Vt. 500, 504, 218 A.2d 698, 702 (1966) ("The intention of the parties, not the language used, is the dominating factor, and the circumstances existing at the time of the execution of the deed, the situation of the parties and the subject matter are to be considered."). In some instances, a covenant is "so intimately connected with the land as to require the conclusion that the necessary intention for the running of the benefit is present absent language clearly negating that intent." Albright v. Fish, 136 Vt. 387, 393, 394 A.2d 1117, 1120 (1978). For example, we have held that a covenant prohibiting placing a particular type of structure on a property is such a restriction. See Rogers, 156 Vt. at 488,594 A.2d at 412. Indeed, unless the terms of a restrictive covenant provide otherwise, when a property benefitted by a restrictive covenant is divided into separately owned parcels, "[e]ach separately owned parcel is entitled to enforce [the] . . . covenant benefitting the property." Restatement (Third) of the Law of Property: Servitudes § 5.7(2) (2000).

¶ 7. Here, plaintiff argues that the restrictive covenant in his deed does not run with the land because it expressly benefits only the grantors and their heirs and assigns, thereby implying an intent not to allow the covenant to be enforced by successors to the land who are not heirs or assigns. Plaintiff further states that neither the Soules' deed nor the Jefferys' deed includes an assignment from the elderly Jefferys, and that the Jefferys are not heirs because Ena Jefferys is still alive, and they did not obtain the land through inheritance. According to plaintiff, they would never have purchased the property with the restrictive covenant if they thought that an indefinite number of successors could dictate how they used their property. We conclude that the record in this case overwhelmingly demonstrates that the parties intended the restrictive covenant to run with the land. The testimony of several witnesses, including Ena Jefferys, unequivocally demonstrated that the covenant was intended to keep the restricted area, which had always been an open meadow, "forever" open and free of any obstructions that would diminish the view from the grantors' remaining lands located above the meadow. Moreover, the record, including evidence of negotiations surrounding the covenant and of the Gardners' subsequent conduct, demonstrates that the Gardners were aware of this intent.

¶ 8. Notwithstanding plaintiff's argument to the contrary, use of the term "assigns" rather than "successors" does not suggest that the parties intended to preclude subsequent owners of the dominant estate from enforcing the covenant. To the contrary, "[i]t is well settled that where a restrictive covenant contains words of succession, i.e., `heirs and assigns,' a presumption is created that the parties intended the restrictive covenant to run with the land." Weeks v. Kramer, 45 Conn.App. 319, 696 A.2d 361, 363 (1997). The word "assignee" is generally defined as "[o]ne to whom property rights or powers are transferred by another." Black's Law Dictionary 114 (7th ed.1999). As Black's Dictionary states:

Use of the term is so widespread that it is difficult to ascribe positive meaning to it with any specificity. Courts recognize the protean nature of the term and are therefore often forced to look to the intent of the assignor and assignee in making the assignment — rather than to the formality of the use of the term assignee — in defining rights and responsibilities.

Id. As noted, the record demonstrates that the parties intended the covenant to run with the land. Moreover, the fact that the grantors added the word "successors" to the term "heirs and assigns" in later covenants does not demonstrate that they intended the word "assigns" to have a more restrictive meaning in the instant covenant. The covenants were written years apart and appear to have several boilerplate terms to express the grantors' intent that the covenants run with the land.

¶ 9. Next, plaintiff argues that the superior court erred by construing the restrictive covenant to prohibit him from planting trees in the restricted area, and that, by doing so, the court imposed a burden on his property greater than that imposed by the restrictive covenant. We disagree. Generally, in construing a deed, the trial court must "`give effect to the intention of the parties...