Abel v. Johnson

194 Conn.App. 120

220 A.3d 843

Michael ABEL et al.

v.Celeste M. JOHNSON

AC 41058

Appellate Court of Connecticut.

Argued March 7, 2019

Officially released November 5, 2019

Heather M. Brown-Olsen, for the appellant (defendant).

John R. Harness, for the appellees (plaintiffs).

Keller, Moll and Beach, Js.

KELLER, J.

In this action to enforce restrictive covenants, the defendant, Celeste M. Johnson, appeals from the judgment of the trial court, rendered following a trial to the court, in favor of the plaintiffs, Michael Abel and Carol Abel. The defendant claims that the court erred (1) in its determination that the plaintiffs had standing to enforce a restrictive covenant that appears in a deed that was executed by the original grantors of the parties' real properties¹ and (2) by granting the plaintiffs injunctive relief on the basis of two restrictive covenants that appeared in a declaration of restrictions that applied to the parties' real properties. We affirm in part and reverse in part the judgment of the trial court.

The record reveals the following procedural history. In their one count complaint, the plaintiffs alleged that they own real property located at 37 Mill Stream Road in Stamford and that the defendant owns real property located at 59 Mill Stream Road in Stamford. The plaintiffs alleged that their property abutted that of the defendant, and that both properties are located in a subdivision named the Saw Mill Association.

The plaintiffs alleged: "The plaintiffs' property and the defendant's property are subject to certain restrictive covenants recorded in volume 792 at page 118 of the Stamford land records which states that property shall be used for private residential purposes only." Also, the plaintiffs alleged: "The plaintiffs' property and the defendant's property are also subject to certain restrictive covenants recorded in volume 917 at page 114 of the Stamford land records which state in relevant part that no animals, poultry or water fowl, except usual pets quartered within the family dwelling at night shall be kept on a tract." The plaintiffs alleged that the restrictive covenants "are common to all tracts or parcels of land located within the area or subdivision known as the Saw Mill Association."

The plaintiffs further alleged: "The defendant is violating the restrictive covenants by maintaining chickens and chicken coops upon the defendant's property and by conducting a landscaping business from the defendant's property." Also, the plaintiffs alleged: "The defendant has not obtained consent from the Saw Mill Association ... the plaintiffs or any neighboring property owner to maintain chickens upon the defendant's property or to conduct a landscaping business from the defendant's property." The plaintiffs alleged that they had demanded that the defendant cease and desist the activities at issue, but the defendant had failed to comply with their demand. The plaintiffs alleged that they had suffered and would continue to suffer irreparable harm as a result of the activities at issue, and that they lacked an adequate remedy at law. The plaintiffs sought injunctive relief ordering the defendant to immediately cease and desist from violating the restrictive covenants and such other relief as the court deemed equitable and proper.

In her answer, the defendant admitted owning 59 Mill Stream Road, which abuts the plaintiffs' property, but she denied that she had violated any restrictive covenant by virtue of her keeping chickens or by virtue of her landscaping business, denied that she had failed to obtain consent to conduct her landscaping business, and denied that the plaintiffs had suffered harm or would continue to suffer harm as a result of her alleged violation of the restrictive covenants at issue. Otherwise, the defendant left the plaintiffs to their proof.

The defendant raised four special defenses sounding in the following legal theories: (1) equitable estoppel and waiver; (2) unclean hands;² (3) ripeness, mootness, and frustration of purpose; and (4) a claim that the action was time barred pursuant to General Statutes § 52-575a in that the plaintiffs did not commence the action within three years from the time that they had actual or constructive knowledge of the alleged violations of the restrictive covenants. By way of a reply, the plaintiffs denied all of the special defenses.

The trial court, Hon. Edward R. Karazin, Jr. , judge trial referee, held a trial in this matter on June 29 and 30, 2017. On August 24, 2017, the court rendered its judgment by way of a memorandum of decision that provides, in relevant part, as follows: "The defendant ... resides with her husband, Eusevio Martinez, at 59 Mill Stream Road, Stamford .... The plaintiffs ... reside at 37 Mill Stream Road, Stamford .... The plaintiffs' property abuts the defendant's property, and both parcels of land are located within a subdivision known as the Saw Mill Association.

"The court finds the [plaintiffs] aggrieved as being ... adjoining property [owners].

"Both properties are subject to three deed restrictions. The first restriction, [as modified by an agreement] dated March 27, 1957, states that ‘said premises shall be used for private residential purposes only (except that a residence may be used for professional purposes by a member of a profession occupying the same as his home to the extent that such use is permitted from time to time by the applicable zoning regulations of the city of Stamford).’ The second restriction is dated March 15, 1961, and states that ‘no animals, poultry or water fowl, except usual pets quartered within the family dwelling at night, shall be kept on a tract.’ The third restriction is also dated March 15, 1961, and states that ‘any commercial vehicle used by an occupant of a tract shall be kept within a garage with doors closed, except for brief periods required for loading or unloading.’

"At trial, the defendant testified that she operates a landscaping business from her property, that chickens were on the property but have since been removed, and that various vehicles parked on her property are used in conjunction with her landscaping business....

"The plaintiff[s] [argue] that the three deed restrictions listed above are part of a common development scheme and, therefore, they are able to bring this action to enforce the restrictions against the defendant....

"The defendant argues that the deed restrictions on her property are the result of covenants exacted by the original landowner from the developer of the Saw Mill Association for the benefit and protection of his adjoining land which he retains and, as a result, the [plaintiffs] cannot enforce the deed restrictions. In addition, the defendant asserts four special defenses ...." (Footnotes omitted.)

After setting forth relevant legal principles, the court stated: "The plaintiffs submitted multiple deeds from various properties of the Saw Mill Association that contained the restrictive covenant[s] they seek to enforce. In addition, the deeds from both parties contain the deed restrictions at issue in this case.... The court is satisfied that both the [plaintiffs'] and defendant's properties are part of a common scheme of development. Therefore, the plaintiffs may enforce the deed restrictions against the defendant. Without a showing by the defendant that the enforcement of those deed restrictions would be inequitable or that a special defense applies, the court will enforce the restrictions."

The court then addressed the special defenses: "The defendant argues that the plaintiffs are estopped from enforcing the restrictive covenants regarding the operation of a home business because they previously utilized services from the landscaping business....

"Even if the plaintiffs hired the defendant's company in its capacity as a landscaping company, no evidence submitted at trial supports the proposition that the defendant changed her position in response to the [plaintiffs'] offer of work. Nor is there evidence that the defendant was prejudiced by accepting the work from the [plaintiffs].... Therefore, the defendant has failed to prove the special defense of equitable estoppel.

"The defendant also argues that with respect to the covenant involving poultry, this action is moot and not justiciable because the chickens that were on the property have been removed prior to the start of trial....

"Both parties agree that the chickens have been removed from the defendant's property. In addition, both parties agree that the chicken coops are still on the defendant's property. The defendant testified that she moved the chickens to another property she owns and does not have plans to return them to her property at 59 Mill Stream Road. Given that an injunction against the defendant regarding the enforcement of the 1961 covenant would provide practical relief to the [plaintiffs] and would resolve any ambiguity about whether the chickens could be returned to the property, this court does not find the issue moot. Therefore, the injunction regarding poultry and water fowl and the [plaintiffs'] request to order an injunction is not moot, and the defendant's special defense has not been proven.

"The defendant argues that the plaintiffs' action is barred by the three year statute of limitations provided in ... § 52-575a. General Statutes § 52-575a provides in relevant part: ‘No action or any other type of court proceedings shall be brought to enforce a private restriction recorded in the land records of the municipality [in which the property is located] ... [unless such action or proceeding] shall be commenced within three years of the time that the person seeking to enforce such restriction had actual or constructive knowledge of such violation.’ ‘Section 52-575a requires that a violation occur before the statute begins to run’....

"The defendant submitted evidence and elicited testimony from [the] plaintiff Michael Abel at trial which indicated that the...