Restrictive covenants: Who can enforce?

Tibbetts v. Michaelides, 2011 VT 52 (mem.)

In this dispute between neighboring landowners, defendants appeal from a superior court order rejecting their claim that plaintiffs violated a deed restriction limiting the number of houses to be constructed on the property. We affirm. The restricted lots were not benefited by the covenant.

The essential question presented, as the trial court recognized, is which estate the parties to the Lowell-to-Trono deed intended to benefit from the five-house restriction. It is axiomatic that “[t]he intent of the parties determines which estates or servitude interests are burdened or benefited by a servitude” and that such intent may be either express or “inferred from the circumstances.” Restatement (Third) Prop.: Servitudes § 2.5 cmt. a (2000); see Madkour v. Zoltak, 2007 VT 14, ¶14, 181 Vt. 347, 924 A.2d 11 (“To determine which property is burdened by the restrictive covenant. . . we must look to the language of the deed itself and consider [the grantor’s] intent in the context within which she conveyed the property.”).

Construing the deed as a whole and the circumstances of its making, the trial court here concluded that the restriction was intended solely to benefit the land retained by Lowell, so that defendants had no standing to enforce it. We agree. Although the deed does not expressly identify the restriction’s intended beneficiary, there was no dispute that, as the trial court found, Lowell retained substantial property “surrounding the five-acre parcel.” As the court further observed, a basic interpretive rule is that—absent evidence of an intent to the contrary—a restriction relating to the use of a portion of land sold by a grantor is generally presumed to be intended for the benefit of the land that the grantor has retained.

We find no basis to disturb the judgment that neighbors were not benefitted by the restriction, and therefore lacked standing to enforce it.