Real estate: covenants extinguished by merger of benefited and burdened estates.

Beldock v. Town of Charlotte (2009-007) (13-Aug-2010) 2010 VT 74 (Skoglund, J. )

Plaintiffs appeal from a superior court order granting summary judgment to defendant Town of Charlotte. Plaintiffs argue that deeds place restrictive covenants upon the Town that require the Town to maintain gates and fences along a Town-owned private lane providing access to plaintiffs’ property. The trial court ruled that the Town “has no obligation or duty to erect, maintain, close, or open any gate(s) at either end” of the lane, nor any “obligation or duty to erect, or maintain any fence(s) along any portion of the length of, or in the vicinity” of the lane. We affirm.

Because of consolidated ownership of the property, the doctrine of merger applies to extinguish the covenant. As we have explained before, “[o]nce the title to the adjoining properties vested . . . , the right-of-way was extinguished by the unity of ownership and possession.” Capital Candy Co. v. Savard, 135 Vt. 14, 15, 369 A.2d 1363, 1365 (1976); In 1996 Plouffe possessed plaintiffs’ land and simultaneously held the fifty-foot-wide Plouffe Lane; and, finally, held his own land, including the retained right-of-way. All benefited land—plaintiffs’ and the Plouffe’s—merged with the Town’s burdened land, and any existing covenants were thus extinguished. To preserve a covenant on the Lane would have required the parties to include language in the conveyances of 1996—a step they chose not to take.