Nearly-Century Old Restrictive Covenant Prevents Homeowner From Erecting Fence Along Property Line
May 17, 2021
In Dodge v. Baker, Plaintiff and Defendants are neighboring property owners of two parcels of land located in the Village of Sodus (the “Village”), in Wayne County, New York (the “Parcels”). Each parcel was created as the result of a subdivision by the original grantor, Sodus Bay Heights Land Co. (“Land Company”), at some point between 1924 and 1937. In conjunction with that subdivision, Land Company created two restrictive covenants to which both Parcels are subject. The first provides “[t]hat no line fence shall be erected on said lot without the written consent of the [Land Company], or its successors or assigns”, and the other provides “[t]hat no unnecessary trees or other obstructions shall be permitted on said lot which shall hide the view of other residents in Sodus Bay Heights.”
After purchasing their Parcel, Defendants applied for the necessary permits needed to put up a fence along their property line. However, Plaintiff informed them that their proposed fence violated the restrictive covenants. Nonetheless, the Village issued Defendants a permit and Defendants erected the fence.
Thereafter, Plaintiff commenced an action in the New York State Supreme Court, Wayne County, seeking a declaration confirming that the restrictive covenants remained valid and enforceable and that Defendants’ fence violated such covenants. The Supreme Court denied Plaintiff’s motion for summary judgment with respect to both covenants. On the first, it held that the Village was Land Company’s successor, and thus the Village’s written consent was sufficient to allow Defendants to construct the fence. On the second, it determined that issues of fact existed with respect to whether the fence hides Plaintiff’s view. Plaintiff appealed.
The Fourth Department effectively reversed. Although it agreed that factual issues existed with respect to the second restrictive covenant concerning Plaintiff’s view, it found that the lower court erred with respect to the first restrictive covenant. With respect to the phrase “line fence”, the Court found that no ambiguity exists and its meaning is clear. Further, the fact that the Village issued Defendants a permit to construct the fence is of little significance, as the restrictive covenant prohibits the fence irrespective of whether the Village allows it. Based on the plain language of the original deed, Land Company granted the Village only its property interests with respect to the Parcels, but “did not transfer its corporate identity.” Accordingly, the Village was not Land Company’s corporate successor and thus lacked authority to permit Defendants’ construction of the fence.
The Court ultimately held that Plaintiff should have been granted summary judgment with respect to the first restrictive covenant, and it modified the order accordingly. It also “remit[ted] the matter to the Supreme Court for further proceedings concerning any additional appropriate relief”—presumably, the issuance of an order requiring that the fence be removed.