Real Property Law

In an action by neighbor for a declaration that landowners' fence violated a restrictive covenant, neighbor appealed from Supreme Court's denial of his summary judgment motion. The Appellate Division modified to declare that the fence violated the covenant, rejecting landowners' argument that they had secured the required permission to build a fence.

Landowner and neighbor both trace their title to the Land Company, which, between 1924 and 1937, subdivided land with views of Sodus Bay in Wayne County. The Land Company subjected all of the parcels in the subdivision to two restrictive covenants. The first provided that no line fence would be erected on the lot without the written consent of the Land Company "or its successors or assigns." The second provided that no unnecessary trees or other obstructions would be permitted which would hide the view of other residents in Sodus Bay Heights. When landowners bought their parcel, they sought to erect a fence, but neighbors objected. Landowners then obtained a permit from the village, and built the fence, prompting neighbor to bring this declaratory judgment action. Landowner argued that the village's permit terminated the covenants because, in 1967, the Land Company had sold its last seven parcels to the village. Landowners argued that the village was therefore a successor or assign of the Land Company, with power to grant permission to violate the covenant. Supreme Court agreed and held that landowner had not violated the fence covenant. Supreme Court held that questions of fact remained about whether the fence, as constructed, violated the covenant preventing obstructions of view. Neighbor appealed.