Abel v. Johnson

340 Conn. 240

263 A.3d 371

Michael ABEL et al.

v.Celeste M. JOHNSON

SC 20436

Supreme Court of Connecticut.

Argued March 29, 2021

Officially released August 20, 2021^**

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

Austin S. Brown, with whom was Heather M. Brown Olsen, for the appellee (defendant).

Robinson, C. J., and McDonald, D'Auria, Kahn and Ecker, Js.^*

ROBINSON, C. J.

In this certified appeal, we consider whether deed language providing that the grantees took title "subject to" an earlier deed, which established a residential use restriction for the benefit of the original grantor's retained property, rendered that restriction enforceable against those grantees by adjoining property owners whose deeds contain similar "subject to" language, pursuant to a common plan of development theory. The plaintiffs, Michael Abel and Carol Abel, appeal, upon our grant of their petition for certification,¹ from the judgment of the Appellate Court reversing in part the judgment of the trial court, rendered after a court trial, granting injunctive relief against the defendant, Celeste M. Johnson, enforcing one restrictive covenant limiting the use of the property to residential use, which was contained in a deed that was executed by the original grantors of the parties’ real properties, and two other use restrictions that appeared in a separate declaration that applied to the properties. See Abel v. Johnson , 194 Conn. App. 120, 142–43, 156, 220 A.3d 843 (2019). On appeal, the plaintiffs claim that the Appellate Court incorrectly concluded that they lacked standing to enforce the residential use restriction. We agree and, accordingly, reverse in part the judgment of the Appellate Court.

The record reveals the following facts and procedural history, much of which are aptly set forth in the opinion of the Appellate Court. The plaintiffs own real property located at 37 Mill Stream Road in Stamford, where they reside, and the defendant owns abutting real property located at 59 Mill Stream Road in Stamford, where she resides with her husband. The parties’ properties are in an area of Stamford known as the Saw Mill neighborhood, where some of the properties are served by a voluntary neighborhood association known as the Saw Mill Association. See footnote 6 of this opinion.

"In 1956, Horace Havemeyer and Harry Waldron Havemeyer (original grantors) conveyed to a housing developer, Empire Estates, Inc. (Empire Estates), 166.1229 acres of real property in Stamford. The deed related to this conveyance is recorded in volume 792, page 118, of the Stamford land records. In relevant part, the deed provides: ‘This deed is given and accepted upon the following express covenants and agreements which shall run with the land herein conveyed and shall be binding upon the grantee, its successors and assigns, and shall [i ]nure to the benefit of the remaining land of the grantors lying westerly of the premises herein conveyed :

" ‘(1) Said premises shall be used for private residential purposes only (except that a doctor or dentist having a home on said premises may locate his office therein if such use is permitted by the applicable zoning regulations), and no buildings shall be erected or maintained upon said premises except single-family dwelling houses and appropriate outbuildings .

" ‘(2) Said tract shall not be subdivided for building purposes into plots containing less than one (1) acre in area, and not more than one (1) such dwelling house shall be erected or maintained on any such plot.’² "In 1961, Empire Estates, through its trustees, Harry E. Terhune and Gordon R. Paterson, executed a declaration of restrictions (declaration) that was recorded in volume 917, page 114, of the Stamford land records. The declaration, which included thirty-five articles and set forth a wide variety of restrictions, did not contain a provision restricting the applicable tracts to private residential use only . In relevant part, the declaration states: ‘Witnesseth, that said trustees hereby place upon the land records the following restrictions, covenants, agreements, reservations, easements and information which shall govern the use of any tract of land whenever imposed in a deed of conveyance, by reference to this declaration, from any person or corporation authorized by either of the said trustees or their successors, by instrument recorded in the land records, to impose the terms hereof on portions of land owned by such person or corporation and shall run with the land so conveyed and shall [i ]nure to the benefit of the owners of tracts of land affected by the terms hereof , to the person or corporation authorized to impose the terms hereof and, where applicable, to the municipality ....’

"Article 2 of the declaration provides: ‘No animals, poultry or water fowl, except usual pets quartered within the family dwelling at night, shall be kept on a [t]ract.³ Exceptions to this provision may be made for not over two year periods if consented to in writing by the [p]urchaser⁴ of each [t]ract within two hundred (200) feet of the [t]ract where the exception is proposed.’ ... "Article 8 of the declaration provides: ‘Any commercial vehicle used by an occupant of a [t]ract shall be kept within a garage with doors closed, except for brief periods required for loading or unloading.’

"The final article of the declaration, [a]rticle 35, provides in relevant part: ‘The intent of this [d ]eclaration is to protect property values . [The] [d]eveloper⁵ intends to enforce the provisions of this [d]eclaration whenever it feels its interest may be threatened. Enforcement action may be taken, with or without [the] [d]eveloper's participation, by any aggrieved [p]urchaser of a [t]ract, or by any group of aggrieved [p]urchasers represented by a [p]roperty [o]wner's [a]ssociation, or otherwise.

" ‘Enforcement of this [d]eclaration or any part thereof shall be by proceedings at law or in equity against any person or persons violating or attempting to violate any right herein contained, and said proceedings may be either to restrain any violation thereof, to recover damages therefor, or to require corrective measures to accomplish compliance with the intent of this [d]eclaration.’ ...

"The deed conveying the property known as 37 Mill Stream Road to the plaintiffs, which was recorded on September 26, 1977, in volume 1680, page 100, of the Stamford land records, provides in relevant part: ‘Said premises are conveyed subject to any restrictions or limitations imposed or to be imposed by governmental authority, including the zoning and planning and wetlands rules and regulations of the [c]ity of Stamford; restrictive covenants and agreements contained in a certain deed from Harry Waldron Havemeyer et al to Empire Estates, Incorporated dated August 14, 1956 and recorded in said records in [b ]ook 792 at [p ]age 118 , as modified by an [a]greement dated March 27, 1957 and recorded in said records in [b]ook 808 at [p]age 355; a declaration made by Harry E. Terhune and Gordon R. Paterson, as trustees, dated March 15, 1961 and recorded in said records in [b ]ook 917 at [p ]age 114 ....’

"Materially similar language appears in the defendant's chain of title, as well.⁶ In a deed conveying the property known as 59 Mill Stream Road and recorded on September 30, 1983, in volume 2296, page 146, of the Stamford land records, the following language appears: ‘Said premises are conveyed subject to planning and zoning rules and regulations of the [c]ity of Stamford and any other [f]ederal, [s]tate or local regulations, taxes and assessments of the [c]ity of Stamford becoming due and payable hereinafter, restrictive covenants and agreements as contained in a deed from Harry Waldron Havemeyer, et al to Empire Estates, Incorporated dated August 14, 1956 and recorded in the land records of said Stamford in book 792 at page 118 , except as the same are modified by an agreement dated March 27, 1957 and recorded in said records in book 808 at page 355, the terms of a declaration made by Harry E. Terhune and Gordon R. Paterson, as [t ]rustees, dated March 14, 1961 and recorded in said records in book 917 at page 114 , the rights of others, including the [c]ity of Stamford, in and to any brook, river, stream or water flowage easement crossing and bounding said tract of land.’ This 1983 deed is referred to in the 2006 deed conveying the property to the defendant , which is recorded in volume 8602, page 54, of the Stamford land records." (Emphasis added; footnote altered; footnotes in original.) Abel v. Johnson , supra, 194 Conn. App. at 131–35, 220 A.3d 843.

The plaintiffs brought a one count complaint, alleging that, "by conducting a landscaping business" and "maintaining chickens and chicken coops" on her property, the defendant had violated three restrictive covenants to which both of their properties are subject, and that are "common to all tracts or parcels of land located within the area or subdivision known as the Saw Mill Association." The plaintiffs alleged that the defendant had "not obtained consent from the Saw Mill Association ... the plaintiffs or any neighboring property owner to maintain chickens ... or to conduct a landscaping business from the defendant's property." The plaintiffs further "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." Abel v. Johnson , supra, 194 Conn. App. at 124, 220 A.3d 843.

The case was tried to the court over two days. The trial court rejected the defendant's argument that the 1956 "deed...