Real Property Law

Restrictive Covenant Should Be Construed Narrowly

Rautenstrauch v. Bakhru

NYLJ 7/15/09, p. 41, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In an action by neighbor to permanently enjoin landowner from using a portion of her residence to treat medical patients, neighbor appealed from Supreme Court's grant of landowner's motion for summary judgment dismissing the complaint. The Appellate Division affirmed, holding that the restrictive covenant in landowner's deed was ambiguous, and should be construed narrowly.

Landowner and neighbor live in adjacent residential homes. Landowner uses her home as a primary residence for herself, her children, and her husband, and also sees between zero and two patients per day in the family room. Landowner has obtained a special permit from the zoning board of appeals to see the patients, but neighbor brought this action to enforce a restrictive covenant that originated when the common grantor subdivided the parcels, and included in each deed a covenant requiring, in clause (1), residential use of the property, and prohibiting, in clause (8) business and commercial uses, including a hospital for care of those suffering from disease. Supreme Court granted summary judgment to landowner, and neighbor appealed.

In affirming, the Appellate Division started with the principle that when a restrictive covenant is ambiguous, it should be construed strictly against the party seeking to enforce it. The court then noted that the inclusion of both section (1) and section (8) in the deeds to the parties created ambiguity. If section (1) were construed to prohibit all non-residential uses, then section (8) would have been superfluous. Moreover, section (8) prohibits hospitals, but not other forms of medical care. Because landowner established that her use did not generate any additional traffic, and that the medical use was incidental to residential use of the premises, the court concluded that, as a matter of law, there had been no violation of the covenants.

Restrictive Covenant Should Be Construed Narrowly

Rautenstrauch v. Bakhru

NYLJ 7/15/09, p. 41, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In an action by neighbor to permanently enjoin landowner from using a portion of her residence to treat medical patients, neighbor appealed from Supreme Court's grant of landowner's motion for summary judgment dismissing the complaint. The Appellate Division affirmed, holding that the restrictive covenant in landowner's deed was ambiguous, and should be construed narrowly.

Landowner and neighbor live in adjacent residential homes. Landowner uses her home as a primary residence for herself, her children, and her husband, and also sees between zero and two patients per day in the family room. Landowner has obtained a special permit from the zoning board of appeals to see the patients, but neighbor brought this action to enforce a restrictive covenant that originated when the common grantor subdivided the parcels, and included in each deed a covenant requiring, in clause (1), residential use of the property, and prohibiting, in clause (8) business and commercial uses, including a hospital for care of those suffering from disease. Supreme Court granted summary judgment to landowner, and neighbor appealed.

In affirming, the Appellate Division started with the principle that when a restrictive covenant is ambiguous, it should be construed strictly against the party seeking to enforce it. The court then noted that the inclusion of both section (1) and section (8) in the deeds to the parties created ambiguity. If section (1) were construed to prohibit all non-residential uses, then section (8) would have been superfluous. Moreover, section (8) prohibits hospitals, but not other forms of medical care. Because landowner established that her use did not generate any additional traffic, and that the medical use was incidental to residential use of the premises, the court concluded that, as a matter of law, there had been no violation of the covenants.